General Terms and Conditions Pimbio B.V.
Article 1 – Definitions
In these general terms and conditions, the terms below shall have the following meaning:
Pimbio: the private company with limited liability Pimbio B.V., established and having its business address at Helftheuvel 11, 5222 AV ‘s-Hertogenbosch, The Netherlands.
Client: any natural or legal person with whom Pimbio enters into an Agreement, makes an offer to and/or is conducting negotiations with.
Agreement: the agreement(s) regarding the performance of Services and/or the sale of Products between Pimbio and the Client.
Party/Parties: Pimbio and/or the Client.
Terms and Conditions: these general terms and conditions of Pimbio.
Products: the goods, however named or designated, offered by Pimbio and/or delivered to the Client pursuant to the Agreement.
Services: any form of Service provided by Pimbio, including the production, sale and/or delivery of (customized) goods, as well as providing consultancy services to the Client in various collaborative efforts.
Article 2 – Applicability
- These Terms and Conditions are applicable to all offers, quotations and Agreements to which Pimbio is a party, as well as any future legal relationship between Pimbio and the Client.
- Deviating from these Terms and Conditions is only possible if agreed upon in writing.
- The general (purchase/terms and) conditions of the Client are explicitly rejected and do not apply to any legal relationship between the Client and Pimbio.
- Should any provision of these Terms and Conditions be deemed void or voided, the remaining provisions will remain in full force. The voided and the void or voided provision of these Terms and Conditions will be replaced by a valid provision, taking into account as much as possible the purpose and intent of the void or voided provision.
Article 3 - Formation and duration of the Agreement
- Agreements (as well as amendments thereto) are established by written and/or electronic (order) confirmation from Pimbio.
- An Agreement can also be established by the fact that Pimbio, without prior (written) confirmation, performs or has performed all or part of an order given by the Client. In this case, the Client shall always bear the risk of the implementation of the Agreement and the costs and damage incurred as a result.
- Insofar as a term has not been explicitly agreed upon, the Agreement for the provision of Services is entered into for an indefinite period of time.
- If and insofar as the Parties have concluded an Agreement for an indefinite period, the Agreement can only be terminated with due observance of a notice period of three months, unless otherwise agreed in writing.
- Insofar as the Agreement has not been entered into for an indefinite period of time, the Client is not entitled to terminate and/or cancel the Agreement prematurely, except in cases where this has been explicitly agreed. In the event of interim termination and/or cancellation, Pimbio is entitled to the full agreed price, increased by the costs it has incurred and will incur as a result of the cancellation and reduced by the costs saved as a result of the termination, without prejudice to Pimbio's right to full compensation including any lost profits. Pimbio will send the Client an itemized final invoice of all that the Client owes as a result of the interim termination/cancellation.
- Pimbio has the right at all times to refuse orders and/or Services or to attach further conditions to their delivery and/or performance.
- If a Product is (temporarily) unavailable, the Client will be informed of this at the latest one month after receipt of the order. In this case, the Client may cancel the order free of charge. If the Client has already paid Pimbio for the Product, the amount paid will be refunded to the Client or set off against Pimbio's outstanding claims on the Client. In such cases, Pimbio shall not be liable for any compensation.
Article 4 – Quotations and prices
- All offers and quotations by Pimbio are without obligation, unless otherwise indicated in writing by Pimbio. Pimbio's offers and quotations may not be reproduced or submitted to third parties for inspection without Pimbio's permission. Pimbio is at all times entitled to charge the Client for the costs of its offers and quotations.
- The offers and quotations are based on information supplied by Client. The Client is responsible for the provided information and guarantees that to his best knowledge he has supplied all the necessary information for the set-up and execution of the offer.
- Quotations made by Pimbio are valid during the period indicated in the quotation. If no period is indicated, the quotation is valid until 30 days after the date on which the quotation is issued.
- All amounts mentioned in Pimbio's quotations, order confirmations and other offers are expressed in Euros (€) and exclusive of sales tax (VAT), unless otherwise indicated.
- Amounts mentioned in Pimbio's quotations, order confirmations and other offers are based on the last known cost components. Pimbio reserves the right to change its amounts even after acceptance by the Client. Such a price increase does not give the Client the right to dissolve the Agreement.
- The amounts and prices are subject to typing errors. Pimbio is not liable for the consequences of typing errors.
- The Client cannot derive any rights from a pre-calculation or budget issued by Pimbio, unless the Parties have agreed otherwise in writing.
- With regard to the work performed by Pimbio and the amounts owed for it by the Client, the data from the administration of Pimbio provide full evidence, without prejudice to the right of the Client to provide proof to the contrary.
Article 5 – Payment terms
- Pimbio is entitled to require (full) advance payment and/or guarantee from the Client prior to delivery. Pimbio may also make use of this authority during the term of the Agreement and any future legal relationship between Pimbio and the Client. If the Client does not comply (in a timely manner) with this request, Pimbio is entitled to dissolve the Agreement. In such cases, Pimbio is entitled compensation. The Client cannot assert any right with regard to the performance of the Agreement, insofar as he has not complied with the advance payment and/or guarantee.
- The Client shall pay the invoice in Euros by deposit or transfer in accordance with the payment conditions stated on the invoice, or the payment conditions otherwise agreed in writing. The Client is not entitled to suspend any payment or to set off amounts owed.
- PimBio uses a payment term of 14 days after the invoice date, unless a different payment term is mentioned on the invoice. The Client shall pay the invoice within the applicable payment term. The payment term is a fatal term in the sense of article 6:83 sub a of the Dutch Civil Code.
- If the Client does not pay on time, he will be in default by operation of law, without any notice of default being required. In this case Pimbio is authorized to suspend its (contractual) obligations. Pimbio also has the right of retention on all data, such as papers and other goods, held by Pimbio until the moment the Client has paid all that he owes Pimbio.
- If the Client does not pay the amounts due, or does not pay them on time, the Client shall owe statutory commercial interest on the outstanding amount, without a reminder or notice of default being required. If the Client fails to pay the claim after a demand or notice of default, Pimbio may pass on the claim for collection, in which case the Client will be obliged to pay all judicial and extrajudicial costs, including the costs of legal assistance, bailiffs' fees and other experts, in addition to the total amount due at that time. The extrajudicial costs will be at least fifteen percent of the invoice amount(s).
- The claim for payment shall be immediately due and payable in the event that the Client is declared bankrupt, applies for a suspension of payments or if the Client's assets are seized, or if the Client dies, goes into liquidation or is dissolved.
- Objections to the amount of the amounts charged or collected by Pimbio must be made known by the Client to Pimbio in writing or by e-mail as soon as possible, but no later than 14 days after the date of the invoice. After the expiry of this period, the Client is deemed to have agreed with the amount stated on the invoice.
Article 6 – Product Orders
- We endeavour to ensure that our product list is current however we give no undertaking as to the availability of any product advertised on our website.
- We undertake to accept or reject an (offer for an) order within seven (7) days. If we have not responded to Client within seven (7) days, the offer is deemed to be rejected. Pimbio is not required to give reasons for rejecting the offer to purchase .
- Once Client has submitted an order, Client may not cancel that order even if the acceptance or rejection of the offer is still pending.
- Delivery of the ordered Product(s) will be as set out on Pimbio’s website. Title in the Products passes to Client when Pimbio has received payment. Pimbio’s terms of payment are set out on the order page.
- All Products supplied to Client shall be to a quality standard consistent with normal manufacturing practices and quality levels for such products, including defects, scratches, dimensional tolerances, and other manufacturing variations. Client agrees to accept Products conforming to these quality standards.
- When ordering Products for delivery outside the EU, Client may be subject to import duties and taxes, which are levied once the Products reach their destination country. Any additional charges for customs clearance must be borne by Cllient Pimbio has no control over these charges and cannot predict what they may be. Clint is considered the importer of record and must comply with all laws and regulations of the country in which Client is receiving the Products.
- Where a Product has been listed at the incorrect price or with incorrect descriptive information or image due to typographical error or similar oversight, Pimbio reserves the right to cancel a transaction.
Article 7 – Product complains, returns, refunds and replacements
- Complaints on the performance of an Agreement by Pimbio should be reported to Pimbio by Client in writing within the terms mentioned in this article. The notice of default should contain as detailed a description of the claimed shortcoming as possible, so that Pimbio can react adequately.
- In case of delivery of Products purchased, Client should inspect or have these inspected as soon as possible. In doing so, Client should check if the Products delivered meet the requirements of the Agreement, namely: if the right Products have been delivered in the right quantity, if the Products delivered meet the quality requirements agreed upon, or in the absence of such agreements, whether the Products meet the requirements that may be set to normal use and/or purposes.
- Any visible faults or defects related to Products or Services should be reported by Client to Pimbio in writing within 14 days after delivery of the Products or performance of the Services. Client should report invisible defects to Pimbio in writing within 14 days after the defect is discovered or should reasonably have been discovered.
- In any event, Client loses the right to rely on complaints on activities performed (Services) or defects (Products) if he does not give Pimbio notice thereof in writing at the latest within 14 (fourteen) weeks after the date of the performance of the Service or the date of delivery of the Products.
- Pimbio is deemed to have fulfilled all her obligations and is not in any way liable towards Client, if Client acts contrary to paragraph 1, 2, 3 and/or 4 of this article.
- Products may only be returned to Pimbio with the prior agreement of Pimbio, at the expense, of Client and according to the directions of Pimbio. Any Products returned in contravention of this Section will not be the subject of any refunds or replacements and Client will continue to be liable for payment of the price of such Products.
- Where Client returns Products to Pimbio in accordance with the provisions of this Section, and in Pimbio’s reasonable opinion those Products do not conform with the warranties set out in Section 10, then Client will be entitled to replacement Products (where replacements are available) or, where Pimbio agrees, a refund of the price paid in respect of those Products (including all delivery charges).
- If Pimbio is unable at the time of return to replace or exchange returned Products, Pimbio undertakes to reimburse the amount paid by Client.
Article 8 – Terms, delivery and change of risk
- If specific terms for the provision of the Services have been agreed, they will be extended by the time during which the Client has not fulfilled its obligations under these Terms and Conditions and/or the Agreement.
- In the event of force majeure and/or delay caused by actions or omissions of the Client or a third party, whether attributable or not, the delivery period will be extended by (at least) the duration of the delay.
- The period specified by Pimbio within which Products will be delivered and/or Services will be performed are always indicative and do not apply to Pimbio as fatal deadlines, unless explicitly agreed otherwise in writing.
- Pimbio shall only be in default after it has been given written notice of default by the Client following the late delivery of Products and/or performance of Services, even if a (fatal) term has been agreed.
- The place of delivery of Products will be at the business address of Pimbio (Ex Works: EXW). Delivery takes place when Pimbio, at its business location, makes the Products available to the Client and has informed the Client that the Products are at its disposal. From that time onwards, the Client bears the risk of the Products in terms of storage, loading, transport and unloading among others.
- The Client and Pimbio may agree that Pimbio will be responsible for the transport of the Products. In that case too, the Client bears the risk of, inter alia, storage, loading, transport and unloading. The Client can insure itself against these risks.
- If the Client does not take delivery of the Products on time and/or does not provide sufficient information to Pimbio for the timely delivery of the Products, the Client will be in default by operation of law and all costs incurred as a result will be borne by the Client, including storage costs. Pimbio is entitled to recover from the Client all damage it suffers as a result of not (being able to) deliver at the agreed place and/or time.
- From the time of delivery (EXW), the delivered Products will be at the expense and risk of the Client.
Article 9 – Performance of Services
- Pimbio will commence the performance of the Services as soon as the Agreement has been concluded and (as long as) it disposes of all provisions, facilities and/or objects, documents, drawings, calculations, approvals and data to be provided by the Client necessary for the performance. Furthermore, the Services will only be performed as soon as any stipulated advance payment has been received by Pimbio or security has been provided for its benefit.
- Agreed periods will be extended by the time that the Client is later than agreed with performance of any obligation or could reasonably be expected by Pimbio. Damage resulting from this delay will be at the expense and risk of the Client.
- Pimbio has the right to perform the Services at its own discretion, whether or not by engaging third parties - at the expense and risk of the Client - and whether or not in parts.
- Pimbio will exercise due diligence in the engagement of such third parties.
- Pimbio is not liable for any shortcomings of the third party engaged by it or a third party, except for intent or gross negligence on the part of Pimbio.
Article 10 – Warranty
- Pimbio warrants to Client that the Products purchased from Pimbio’s website will:
- Conform in all material respects to any applicable specification of such Products published on Pimbio’s website and/or issued by Pimbio; and
- Be free from material defects in materials and workmanship.
- For the avoidance of doubt, above warranties do not cover any defect in the products arising from fair wear and tear, willful damage, accident, negligence (including, but not limited to, inappropriate storage) by Client or a third party, use otherwise than in accordance with the manufacturers or our instructions or recommendations, or any alteration carried out by Client or any third party.
- If Pimbio provides warranty(s) for defects in materials and/or workmanship, a successful invocation of such warranty(s) shall include only that Pimbio will, at its option, repair or replace the affected Products, perform the Services, or refund a reasonable portion of the fee and/or purchase price paid by the Client, to be determined by Pimbio.
- With regard to materials, goods and/or products obtained by Pimbio from third parties, Pimbio is only bound by any agreed warranty if and insofar as it has in turn obtained warranty(s) from the third parties in question.
- The Client cannot derive any rights from any guarantee(s) provided by Pimbio other than as mentioned in paragraphs 1 and 2 of this Article, in particular not the right to any compensation for damage arising from the use of Products.
- If the Client does not, does not properly or does not timely comply with any obligation arising for him from the Agreement concluded with Pimbio or from a related Agreement, any (claim) right of the Client to rely on the agreed warranty (s) will lapse.
Article 11 – Force Majeure
- In the event of force majeure on the part of Pimbio, Pimbio is entitled to suspend the performance of the Agreement for the duration of the force majeure or to dissolve the Agreement in whole or in part. Pimbio is free in this choice and can proceed to do so without judicial intervention and without Pimbio being obliged to pay any compensation in this respect. If Pimbio has already partially fulfilled its obligations when the force majeure occurs, it is entitled to separately invoice the part already delivered or the Services already performed, and the Client is obliged to pay this invoice.
- Neither Party is obliged to perform any obligation if prevented from doing so as a result of force majeure. Force majeure on the part of Pimbio includes but is not limited to 1) force majeure of Pimbio's suppliers, 2) failure of Pimbio's suppliers to properly fulfill their obligations, 3) defectiveness of Products, equipment, software or materials, 4) government measures, 5) power failure, 6) failure of the Internet, data network or telecommunications facilities, 7) war, 8) strike, 9) fire, 10) flood and 11) general transport problems.
- If a force majeure situation lasts longer than sixty days, each of the Parties has the right to terminate the Agreement in writing. What has already been performed under the Agreement will in that case be settled proportionately. Pimbio will not be liable for any damages.
Article 12 – Liability
- Pimbio is not liable for damages of any kind arising from incorrect and/or incomplete information provided by or on behalf of the Client.
- Pimbio is also not liable for damage, of whatever nature, caused by unauthorized and/or negligent use or maintenance of the Products delivered by Pimbio.
- Pimbio's liability shall at all times be limited to repairing or replacing the Products supplied, performing the Services again or refunding a reasonable part of the fee and/or purchase amount paid by the Client, to be determined by Pimbio. Pimbio is free to choose any of the aforementioned options.
- The extent of the damage to be compensated by Pimbio is limited to compensation of only the direct damage that is related to an attributable shortcoming in the performance of the Agreement. Direct damage is exclusively understood as the reasonable costs to make the defective Products and/or Services comply with the Agreement.
- Unless performance by Pimbio is permanently impossible, liability of Pimbio for an attributable shortcoming in the fulfilment of the Agreement will only arise if the Client gives Pimbio immediate written notice of default, whereby a reasonable period for the remedy of the shortcoming is given, and Pimbio remains attributably in default even after this period. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that Pimbio is given the opportunity to respond adequately. At the first request of Pimbio Client will return, at Clients costs, the Products concerned. Pimbio will have the right to examine the Products concerned.
- Liability for indirect damages, including but not limited to consequential damages, lost profits, lost savings, loss of data, reduced goodwill, damage as a result of claims by customers of the Client and damage due to business interruption and idle time, is excluded at all times.
- Any compensation to be paid by Pimbio, on whatever legal ground, will never exceed the amount paid by its (professional liability) insurer in the case in question. In cases where the insurer does not pay out or in the event that there is no insurance, the direct damage to be compensated will be maximized on the basis of the invoice value of the relevant defective Product and/or the defective part of the Services performed, but this compensation will in no event exceed €5,000.
- Claims related to alleged liability of Pimbio must be submitted to Pimbio in writing and with reasons as soon as possible. Without prejudice to the provisions of Article 6:89 of the Dutch Civil Code, the right to compensation for damages expires in any case 12 months after the event from which the damage directly or indirectly results and for which Pimbio is liable. The foregoing in this article also applies if the Client claims compensation for damages on the basis of another acquired or obtained right.
- The Client shall indemnify Pimbio against all third-party claims for product liability as a result of a defect in a system supplied by the Client to a third party that partly consisted of software or other materials supplied by Pimbio.
- The Client has the obligation to inform Pimbio in a timely manner and in writing of circumstances that may be relevant to the performance of the Services. The Client is responsible for the directions, instructions and/or information given by it or on its behalf.
- The Client is liable for all damages resulting from the failure to properly follow the orders, instructions and directions given by Pimbio.
- The Client shall indemnify Pimbio against all claims of third parties that are directly or indirectly related to the performance of the Agreement.
Article 13 – Intellectual property
- All (information contained in) offers, quotations, designs, models, images, photographs, drawings, advice, calculations, analyses, maintenance and management plans and the associated intellectual or industrial property rights are vested exclusively in Pimbio and/or one of its licensors. This is not different if these documents and materials have been developed for or during the performance of the Agreement. The Client is not permitted to reproduce, disclose, put to use, make available to third parties and/or make available for inspection all or part of the aforementioned documents and materials without the prior written consent of Pimbio.
- Pimbio is permitted to take technical measures to protect and safeguard the industrial and intellectual property rights vested in the documents and materials provided by it as referred to in Article 13 paragraph 1. The Client is not permitted to circumvent, remove and/or breach these technical (security) measures.
- By entering into the Agreement, the parties explicitly do not aim to transfer any intellectual property rights. The Client will only acquire the user rights that the parties have agreed upon, or that are explicitly granted to the Client by the Agreement or the law.
- The Client will not infringe on the confidential nature or the copyrights, trade marks, trade names or any other intellectual property rights of Pimbio. This includes removing, modifying and adapting (or having removed) the data files, documentation, equipment, Products or materials made available by Pimbio.
- Pimbio has the right to use the intellectual property rights, acquired know-how and other knowledge or information in the context of the performance of the Agreement for other purposes. For example, for the benefit of other customers of Pimbio. Pimbio will ensure that the confidential information of the customer remains confidential. Pimbio will endeavour to prevent disclosure of confidential information as much as possible.
- If the Client infringes on Pimbio's intellectual property rights, Pimbio is entitled to an immediately payable compensation of at least three times the agreed fee, without prejudice to Pimbio's right to claim compensation for the actual damage suffered.
- Pimbio does not guarantee in any way that the Products delivered and/or Services performed by it do not infringe any (un)written intellectual property right of third parties.
Article 14 – Privacy
- If this is necessary for the performance of the Agreement, Pimbio will process personal data in the performance of the Agreement. Pimbio will always process the personal data in accordance with the requirements of the General Data Protection Regulation and its Dutch implementing law.
- The Client shall indemnify Pimbio against claims by persons whose personal data have been registered or are processed in the context of the Agreement.
- The responsibility for personal data processed using a service of Pimbio lies entirely with the Client. Principal guarantees to Provider that the content, use and/or processing of the data are lawful and do not infringe any right of a third party or the person concerned. Principal shall indemnify Pimbio against any legal claim by a third party or data subject, on any grounds whatsoever, in connection with the processing of personal data and/or the performance of the Agreement.
Article 15 – Confidentiality
- The Parties undertake to keep secret all confidential information and business secrets that they receive from the other Party. The Parties will also impose this obligation on their employees, as well as on third parties engaged by them for the execution of the Agreement. This confidentiality obligation shall apply both during the term of the Agreement and afterwards.
- If the Client breaches the confidentiality obligation as referred to in Article 15.1 of these Terms and Conditions, the Client will forfeit an immediately payable penalty of EUR 5.000 per event, increased by an amount of EUR 250 for each day that the breach continues, without prejudice to Pimbio's right to full compensation.
Article 16 – Termination
- The parties may dissolve the Agreement in whole or in part with immediate effect without notice of default and without judicial intervention after a written statement has been issued at the time when the other party is declared bankrupt, requests a provisional suspension of payments, or when a request for the application of a debt rescheduling arrangement is granted by the court, or when it loses the power of disposition of its assets due to attachment, placement under guardianship or otherwise. In the aforementioned cases the parties shall also be entitled to suspend performance of the Agreement.
- Pimbio is also entitled to dissolve the Agreement in whole or in part, if unaltered maintenance of the Agreement can no longer be required of Pimbio according to standards of reasonableness and fairness.
- By termination mutually existing claims become immediately due and payable. The Client is liable for any damage suffered by Pimbio, including loss of earnings.
Article 17 – Modification of Terms and Conditions
- Pimbio has the right to change the Terms and Conditions unilaterally. In this case, Pimbio will notify the Client of the change in a timely manner, with the period of one month between the notification and the entry into force being in any case timely.
- The most recent version of the Terms and Conditions are also available on Pimbio’s website pimbio.com/terms-and-conditions.
Article 18 – Applicable law and disputes
- The Agreement and these Terms and Conditions are governed by Dutch law. Applicability of the Weens Koopverdrag (United Nations Convention on Contracts for the International Sale of Goods, Vienna, 11 April 1980, Treaty Series 1981, 184 and 1986, 61) and foreign laws is expressly excluded.
- The District Court of Oost-Brabant, location 's-Hertogenbosch, is exclusively competent to adjudicate disputes between the Parties.