ARTICLE 1: APPLICABILITY OF THESE TERMS AND CONDITIONS
The following terms and conditions apply to all agreements – including future agreements – within the context of which European Portwell Technology B.V. (KvK 34268540), hereinafter to be referred to as "Portwell", supplies or makes available items or software, under whatever title – including purchase, licence or contract – or performs any other service, and to any statements made in that context. The terms “product” or “item” are hereinafter also taken to mean software and the performance of a service, unless the contrary is evidently the case. All parties assigned by Portwell for the performance of this agreement can rely upon these general terms and conditions. The other party to Portwell shall hereinafter be referred to as "the customer". General terms and conditions submitted to Portwell by the customer at any time are herewith expressly rejected.
ARTICLE 2: CONCLUSION AND CONTENT OF THE AGREEMENT; SECURITY
1. Unless otherwise stated, all offers made by Portwell are without obligation. The agreement between Portwell and the customer will be concluded when the customer accepts Portwell’s offer unconditionally or when Portwell accepts the customer’s order, subject to conditions or otherwise. If Portwell sends out a written confirmation or acceptance, the content thereof is considered to be agreed, unless the customer objects in writing within eight working days of the dispatch of the written confirmation or acceptance. With regard to the prices, Portwell refers to the provisions contained in article 3.
2. Cancellation of an agreement once it has been concluded at the request of the customer can only take place if Portwell states its consent in writing; such consent will always be given on condition that all costs incurred by Portwell and the damage it has suffered, including loss of profit, are compensated.
3. Portwell is always entitled to demand the provision of adequate security before the contract is concluded. Even after the agreement has been concluded, Portwell is entitled to do this if it has reasonable grounds to suspect that the customer will not fulfil its obligations. This will always be the case if the customer fails to satisfy a claim payable to Portwell despite notice of default.
4. If Portwell shows or submits to the customer documentation, illustrations, samples or models, in any way whatsoever, this will serve purely for reference purposes; the item/service need not necessarily answer such a description, unless and insofar as the parties expressly agree the contrary.
ARTICLE 3: PRICES; PAYMENT AND COSTS
1. Unless expressly stated otherwise in writing by Portwell, the prices it quotes:
- are based on Portwell’s prices that are valid at the time the order is confirmed;
- are based on the conditions of delivery outlined in article 4 paragraph 1 or agreed individually with the customer;
- exclude VAT, import/export duties and other taxes, levies and duties;
- exclude any assembly or installation work
2. Portwell is entitled to adjust prices agreed with the customer if and in as far as cost determinants for the product change between the date of the purchase agreement and delivery date.
3. Unless otherwise agreed, payment must be made within fourteen days of the invoice date to the account nominated in the invoice. The customer cannot use rights of set-off or suspension of performance under any circumstances. As soon as the payment period expires the customer will be in default, with no requirement of notice to this effect, and it will owe interest on the end total of the invoice proportionate to the statutory interest rate as specified in article 6:119a of the Dutch Civil Code. After each period of one year, the amount on which interest is calculated will be increased by the interest owing for that year.
4. The customer will owe Portwell all extrajudicial and court costs if it fails to make payment of the sum due despite a warning to do so, and Portwell places the claim in the hands of a third party. In respect of the extrajudicial costs, it will be a minimum of 15% of the amount of the claim.
5. Payments to be made by the customer or third parties will always be applied in the first instance to those claims for which Portwell cannot assert the retention of title and right of pledge described in article 7.
6. In observance thereof, payments will be applied in the first instance to all costs owed, thereafter to all outstanding interest and, finally, to the most senior capital debt.
ARTICLE 4: DELIVERY
1. Unless otherwise agreed, delivery will be effected within the Benelux region under C.I.F. conditions and to other countries under ex works conditions, ex Portwell’s facility in Nieuw Vennep, the Netherlands.
2. The customer is obliged vis-à-vis Portwell to take immediate delivery of the purchased item/service offered, as soon as offered. If the customer fails to take delivery of the item, the item will be deemed to have been delivered at the time Portwell offered the item (without prejudice to Portwell’s right to dissolution and/or compensation), and Portwell will retain such items from that moment on at the customer’s expense and risk. Portwell is entitled in that instance to invoice the customer. It does not have to insure the item.
3. Agreed delivery deadlines are approximate, not fixed – even if a specific end date or a specific deadline has been agreed – unless otherwise agreed. In the event of late delivery, Portwell must be given written notice of default; Portwell must be granted a reasonable deadline, set in consultation with it, within which it can perform.
4. Portwell is entitled to make partial deliveries provided that this is done within the agreed deadline or within the extended period based on the previous/following paragraph.
5. The delivery date will be extended if and insofar as the customer has failed to meet its obligations towards Portwell, including payment obligations and obligations to provide the necessary information and resources.
6. The significance of delivery terms and conditions will be interpreted on the basis of the latest edition of the Incoterms supplied by the International Chamber of Commerce.
ARTICLE 5: INTELLECTUAL PROPERTY, USE OF SOFTWARE
1. Any and all information, in particular, technical, scientific, commercial information and the technology, entrusted by Portwell or incorporated in the products/services delivered to the customer remain property of Portwell. Nothing during the business transaction shall be construed as granting the customer intellectual property rights or other protected rights to the entrusted information or technology unless otherwise agreed in writing.
2. The product delivered by Portwell may include software. The use of the software is subject to the terms and conditions set forth under the respective license agreements.
3., Unless otherwise agreed in writing, the embedded software may only be used on and transferred together with Portwell’s hardware.
4. The customer may only copy the software to the extent necessary to ensure interoperability with the software of other programs. Any decompiling or reverse engineering of the software without Portwell’s prior written consent is prohibited.
ARTICLE 6: EXPORT AND RE-EXPORT
The supply of products or services by Portwell is subject to the compliance with the national or international foreign trade and customs requirements or regulation on embargoes or other sanctions. The customer is obliged to refrain from transactions (a) involving persons, entities, organisations or institutions listed in the sanction lists under the EC-Regulations or U.S. export control laws or US sanctions laws, (b) involving embargoed countries, or (c) related to any restricted military use. The customer is solely obliged to apply the required export or re-export licence.
ARTICLE 7: RETENTION OF TITLE
1. All deliveries take place subject to retention of title. Portwell retains ownership of the items delivered or to be delivered to the customer under any agreement until the customer has effected the following:
a. paid the price in full for all these items, plus all outstanding interest and costs,
b. paid all debts in full relating to the work carried out or to be carried out by Portwell on its behalf, within the context of the agreements concerned,
c. paid all debts owed by it to Portwell due to failure to meet the above obligations.
The customer cannot use the item falling under the retention of title in any way as security for claims of third parties.
2. The parties agree that in accordance with the provisions of article 3:239 Dutch Civil Code as first request of Portwell a right of pledge in favour of Portwell will be established on any claim against customer’s insurer in relation to the items delivered under retention of title.
3. If any third party claims any right to, or in connection with, an item falling under retention of title, the customer is obliged to notify this third party without delay of Portwell’s right and inform Portwell without delay about this matter.
ARTICLE 7a: EXTENDED RETENTION OF TITLE
1. To the extent legally possible the title of Portwell also extends to the new products created through the processing of the reserved goods. The goods are processed for Portwell as the manufacturer. If they are processed, connected or mixed with items that do not belong to Portwell, Portwell will acquire co-ownership at the ratio of the invoice value of its reserved goods to the invoice values of the other materials.
2. The retention of title will remain in effect even if the relevant claim(s) of Portwell is (are) included in a current invoice and the balance has been struck and recognized.
3. If the customer is in breach of contract, especially as regards default of payment, Portwell is entitled to rescind from the contract and take back the goods. The seizure of the reserved goods by Portwell always means the declaration of recession from the contract.
4. The customer must take care of the reserved goods. It is obliged to insure them sufficiently at its own costs at their purchase value against fire, water damage and theft, and transfers his compensation claims from these insurance policies to Portwell here and now.
5. The customer is entitled to resell the goods in the course of orderly business, but it assigns to Portwell here and now all claims to the amount of the invoice value (including VAT) resulting from the sale of the goods, whereby Portwell accepts. If goods are sold to which Portwell has the right of co- ownership, the assignment is limited to the percentage of its share in the joint product. The customer shall remain entitled to recover these claims, even after the assignment. This does not affect Portwell’s entitlement to recover the claim itself. Portwell is obliged, however, not to recover the claim as long as the customer meets its payment obligations towards Portwell, does not get into default of payment and, in particular, no application for the opening of insolvency proceedings has been lodged. If this is the case, Portwell is entitled to demand that the customer notify it of the assigned claims and their debtors, provide it with all of the information required for collection, hand over the related documentation and notify the third parties of the assignment.
ARTICLE 8: FORCE MAJEURE
1.Portwell shall not be liable to customer or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of our obligations in respect of the items, if the delay or failure was due to a force majeure. Without prejudice to the generality of the foregoing, the following shall be regarded as force majeure: explosion, flood, tempest, fire or accident; war, threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes of a third party; difficulty in obtaining materials, labour or machinery; and power failure or breakdown in machinery.
If Portwell are unable to provide customer with the items within a reasonable time due to a force majeure, Portwell shall either agree a new timescale with customer or either of the parties may decide to terminate the order in which case Portwell will return any prepayments that have been made in full.
ARTICLE 9: INSPECTION AND COMPLAINTS
1. The customer is obliged to inspect the items supplied by Portwell/the service performed by Portwell immediately upon delivery to ascertain good quality, insofar as such an inspection is reasonably possible within the said time frame, and at any rate to perform a check to ascertain volumes and any immediately visible faults. If the customer wants to make complaints in this respect, it must provide written notice outlining the nature of the problem to Portwell and make a record on the delivery note, within five working days of delivery of the item/service.
2. Furthermore, the customer must conduct a thorough check within fifteen working days of delivery to ensure that the item/service complies with the agreement and, if a fault is revealed, submit a written complaint to Portwell within this period outlining the nature of the problem. This rule also applies if a particular feature of the item/service is missing that ought to be present according to the information supplied by Portwell, or if the discrepancy relates to facts that Portwell knew about, or ought to have known about, but failed to pass on to the customer.
3. If Portwell responds to a complaint made by the customer, this does not mean that Portwell hereby accepts liability. If a complaint proves to have been made wrongfully, Portwell is entitled to charge for the work carried out, and items delivered, at its usual rates. 5. Submission of a complaint does not release the customer from its payment obligation and does not entitle it to defer any payment.
ARTICLE 10: LIABILITY AND WARRANTY
1. If the customer has taken into account the rules and regulations laid down in the previous article, and the product supplied will solely be used by competent personnel and under normal conditions - Portwell can, in observance of the provisions of these terms and conditions, only be sued on account of an attributable shortcoming for a period of one year after the delivery date/completion date/rendering of the service (“vervaltermijn”).
2. If Portwell acknowledges - which acknowledgement will always be conditional unless otherwise stated - that a failing can be attributed to it or if this is established otherwise, it is entitled to inform the customer of the following within a reasonable period of time after the customer has invoked this failing: a. it will deliver/re-deliver what is missing at no extra cost or: b. it will implement remedial action at no extra cost; the replacement parts can be new or reconditioned, at the discretion of Portwell, and the replaced parts will become the property of Portwell. If Portwell acts in a reasonable time after the aforementioned notice, this means that the agreement has been fulfilled correctly and the customer is not entitled to compensation.
3. Portwell’s liability is limited, regardless of the nature thereof, to a maximum of the agreed price for the item/service in question (excluding VAT), except in the case of gross negligence or deliberate recklessness, if it is found that it owes compensation under any title whatsoever. The compensation owed by Portwell will be reduced by a reasonable usage fee for the item/service in question from which the customer has benefited.
4. Portwell warrants under the conditions specified in the European Portwell Warranty Policy that each product failing to function properly under normal use, due to an effect in materials or workmanship or due to nonconformance to the agree upon specifications, will be repaired or exchanged, at Portwell’s option and expense. Unless otherwise specified in writing the warranty period is 12 months for non-Portwell parts, e.g. CPU, Drives, Fans, memory and 24 months for Portwell designed and manufactured products, e.g. Modules, Embedded Boards or electronics. Software is warranted for 90 days and any third-party Software is warranted through the End User License Agreement (EULA) of the respective supplier.
5. Portwell will bear no liability, and any claim in respect of an alleged shortcoming on the part of Portwell will lapse, if the customer carries out modifications and/or adjustments and/or repairs and/or maintenance on the product itself, or has such carried out, or if the delivered item is not being, or has not been, used or handled carefully in accordance with the accompanying or applicable manufacturer’s instructions/user manual, or is being, or has been, used or handled improperly or carelessly, or if the item delivered is being used or applied for other than the intended purposes – including situations where the product is being used in combination with any product or software not supplied by Portwell whilst the product supplied by Portwell itself is in compliance with the agreement - or if the item delivered is being, or has been, used in a way that Portwell could not have reasonably anticipated, or has been manufactured in accordance with the customer’s instructions and this has had a bearing on the damage that has arisen. Portwell is not liable for damage arising as a result of normal wear and tear of the product it has supplied.
ARTICLE 11: APPLICABLE LAW AND COMPETENT COURT
1. Dutch law applies to all agreements concluded by Portwell. The applicability of the United Nations Treaty on international purchase agreements relating to movable goods is herewith explicitly excluded.
2. All disputes arising between Portwell and the customer, and to which these general terms and conditions apply, will, unless prevented by imperative terms of law, be settled by the Court in Amsterdam, the Netherlands, without prejudice to Portwell’s right to bring legal proceedings against the customer before an otherwise competent court.