Terms and Conditions
1.1. Terms which are capitalized in these General Terms of Sale have the following meaning:
(a) “Agreement” means any agreement between PNBV and Buyer related to the sale of Goods by PNBV;
(b) “Buyer” means each person or entity that enters into an Agreement with PNBV;
(c) “Confidential Information” means all information disclosed by PNBV to Buyer, in any form, that is designated as confidential or can reasonably be assumed, which at least includes the content and existence of the Agreement, the Parties’ relationship, personal details, designs, drawings and samples;
(d) “Goods” means all items supplied or to be supplied by PNBV to Buyer in the implementation of an Agreement, as well as any services related to the supply of such items;
(e) “Intellectual Property Rights” means all patent rights (including reissues, divisions, continuations and extensions thereof), copyrights, moral rights, Trademarks, design rights, rights to utility models, trade secret rights, database rights, neighboring rights to the Goods;
(f) “Party” means a party to an Agreement;
(g) “PNBV” means either Paskal Nederland B.V. and/or one or more of its affiliates that enter(s) into an Agreement with Buyer;
(h) “Trademarks” means trademark, service mark, trade name, logo or any other indicator of source or origin owned by or licensed to PNBV and its affiliates.
2. Formation of the Agreement
2.1. These General Terms of Sale apply to and form part of any Agreement and all other legal relationships between PNBV and Buyer connected with the sale of Goods by PNBV.
2.2. An Agreement shall be concluded at the earliest of (i) conclusion of a written agreement signed by both Parties, sending a purchase order (“PO”) (ii) PNBV issuing an order confirmation or (iii) PNBV fulfilling the order. Any orders submitted by Buyer are requests and do not bind PNBV in any way.
3. Specification of the Goods
3.1. Buyer acknowledges and agrees that all information provided by PNBV relating to the Goods and their use, such as weights, dimensions, capacities, performance, colors and other data contained in catalogs, prospectuses, circulars, advertisements, illustrations, price lists, written or oral representations or presented by prototypes or demonstration models, shall only be part of the Agreement if accepted by PNBV in writing.
3.2. Buyer acknowledges and agrees that, bearing in mind the characteristics and ordered quantities, rounding differences may occur at the time of packaging the Goods. PNBV shall use its best efforts to ensure that the difference between the ordered and the delivered quantity of Goods shall not exceed 1% up to 2.5%.
3.3. High wire hooks – twine length is measured from the upper hanging point both for the main winding and the free fall. The main winding has a maximum allowed tolerance of -0 cm / +50 cm. The free fall has a maximum allowed tolerance of -5 cm / +10 cm.
3.4. Buyer may sell the Goods purchased from PNBV to third parties only under the Trademarks and specifications under which the Goods were delivered by PNBV to Buyer. Buyer may not modify the Goods it purchased from PNBV nor may Buyer alter, deface, remove or cover in any way any Trademarks or any serial, model and/or type numbers attached or affixed to the Goods, including their labelling, packaging, imprints and instructions. Buyer is not allowed to alter the primary packaging or repackage the Goods as purchased from PNBV without PNBV’s prior written approval.
4. Delivery, delivery time, storage and cancellation
4.1. All Goods shall be delivered CIF ROTTERDAM (as defined in the Incoterms 2010), unless the Parties agree otherwise.
4.2. Buyer shall be obliged to take delivery of the Goods and to do all the acts which can reasonably be expected of Buyer in order to enable PNBV to make the delivery according to the agreed Incoterm. If Buyer breaches this obligation, the risk in the Goods shall, irrespective of what trade term applies, pass to Buyer on the moment of such breach and all costs incurred by PNBV in connection with the delivery, as well as any further costs of transport, safekeeping and storage shall be borne by Buyer.
4.3. PNBV shall be entitled to make partial deliveries and to invoice each delivery separately.
4.4. PNBV’s failure to meet a delivery date or delivery period shall not constitute a breach of the Agreement.
4.5. PNBV shall be entitled to suspend its obligations under any Agreement in the event there are reasonable grounds to doubt whether Buyer is able or willing to fully and timely fulfil its payment obligations.
4.6. A request by Buyer to cancel or modify any order (or part thereof) must be submitted in writing and is subject to PNBV’s written approval. Buyer may incur charges for order modifications or cancellations. In the event Buyer requests expedited delivery of shipments, PNBV reserves the right to charge Buyer for associated costs.
5.1. Unless otherwise agreed in writing, price does not include value added tax (VAT) or other taxes due as a result of the sale of the Goods and does not include the transportation costs, (special) packaging, insurance or import / export formalities. These costs shall be the responsibility of Buyer, and may be charged by PNBV in addition to the prices quoted.
6.1. Unless otherwise agreed in writing, all Goods shall be paid in advance. PNBV may invoice Buyer for the price of the Goods, upon receiving an order. Any invoice shall be due and payable within 8 calendar days of the date of such invoice.
6.2. The amounts due shall, unless otherwise agreed in writing, be paid by electronic funds transfer to PNBV’s bank as indicated by PNBV. Buyer shall be deemed to have paid when the respective sums due have been received by PNBV’s bank in immediately available funds. All costs related to the method of payment shall be the responsibility of Buyer.
6.3. At PNBV’s first request, Buyer shall provide any type of security requested, whether or not additional, to secure its payment obligations to PNBV on conditions approved by PNBV. Buyer shall provide such security at least twenty (20) calendar days before (i) the agreed date of delivery or (ii) the earliest date within the agreed delivery period.
6.4. All amounts due under the Agreement to be paid by Buyer to PNBV shall be paid in full and without any deduction. Buyer shall not be entitled to any right of setoff.
6.5. PNBV shall be entitled to setoff any amount due by PNBV to Buyer against amounts due by Buyer to PNBV or one of its affiliates. PNBV is at all times entitled to assign its accounts receivables from Buyer to any financial institution, without Buyer’s consent and without having to notify Buyer thereof.
6.6. Any amounts which Buyer owes PNBV under any Agreement shall become immediately due and payable in full if PNBV is entitled to terminate the Agreement pursuant to Section 16.1.
7. Delayed payment
7.1. If Buyer does not timely pay any amount which is due and payable, PNBV is entitled to late payment interest on such amount, to be calculated from the time such amount became due until the time such amount is paid in full.
7.2. To the extent permitted by law, the rate of late payment interest referred to in Section 7.1 shall be one (1) percent per month (i.e. twelve (12) percent per annum) on the outstanding amount.
7.3. In addition, PNBV may, in the event of any overdue payment, suspend any delivery of Goods to Buyer. As soon as PNBV has received the overdue payment, PNBV shall resume delivery of the Goods, in which case a new delivery period shall start based on delivery lead times quoted by PNBV for such Goods at the time of receipt of payment.
7.4. If a payment has not been received within a period of five (5) working days after a demand notice is sent to Buyer, PNBV shall be entitled to terminate the order with immediate effect, either in whole or in part, without prejudice to PNBV’s other rights.
8. Retention of title
8.1. The ownership of Goods shall remain PNBV’s sole and absolute ownership until such time as Buyer has paid the agreed price for the delivered Goods in full to PNBV, as well as any interest, collection costs, or other amounts due with respect to such Goods.
8.2. If applicable law does not permit a reservation of ownership as provided for under Section 8.1, Buyer shall warrant that PNBV has rights that have the same effect as the agreed retention of ownership, to the fullest extent possible under the applicable law.
8.3. Until Buyer becomes the full and unconditional owner of the Goods in accordance with Section 8.1:
(a) Buyer shall store the Goods separately from other goods and shall identify these as the property of PNBV and preserve all labels, identifying marks and stock records identifying them as the property of PNBV;
(b) Buyer shall, to the satisfaction of PNBV, adequately insure the Goods against loss, theft and damage;
(c) PNBV shall have absolute authority to retake, sell or otherwise dispose of, all or part of the Goods in which title remains vested in PNBV and Buyer shall fully cooperate to exercise such right; and
(d) Buyer shall not, without PNBV’s prior written consent, assign, pledge, lease or otherwise dispose of any product or enter into any agreement by which the Goods are subjected to any security right or right to surrender the Goods.
9.1. If PNBV has undertaken to arrange the transport of the Goods, Buyer must examine the Goods for transport damage and must verify that the correct quantity of Goods has been delivered immediately upon arrival at the agreed destination.
9.2. If any transport damage or deviation in the delivered number of Goods against the ordered quantity of Goods is found, Buyer must make a detailed description thereof on the transport document to be signed after receipt of the Goods. The reporting of damages, non-conformities or deficiencies will not relieve Buyer from its payment obligations for the Goods.
10. Warranty and non-conformity
10.1. Notwithstanding Section 9.1, Buyer shall notify PNBV in writing of any non-conformity of the Goods within five (5) calendar days from the date when this was discovered by Buyer and in no event after expiration of the warranty period specified in Section 10.3, specifying the nature of the non-conformity and providing all available documents, reports and other evidence necessary to evaluate the non-conformity by PNBV, subject to forfeiting the right to invoke any action based on non-conformity.
10.2. Upon receiving a notice of non-conformity as set forth in Section 10.1, Buyer shall arrange shipment to PNBV. PNBV shall, upon receipt of the Goods, be granted a reasonable time to evaluate the notice and, where relevant, propose an appropriate solution. If PNBV confirms the non-conformity in writing to Buyer, PNBV shall reimburse the shipment costs incurred by Buyer. No Goods shall be returned to PNBV without prior approval from PNBV.
10.3. PNBV warrants that all items shall, from the date of delivery to Buyer and for a period of twelve (12) months thereafter (or such other period as may be agreed upon in writing by the Parties), conform to the published specifications for the use of such Goods, provided that the Goods shall be stored inside the original boxes in a cool and dry place with temperatures between 5˚ Celcius to a maximum of 40˚ Celcius and a maximum humidity of 50% and not to be exposed to direct sun radiation. The Goods shall be deemed to conform to such published specifications despite minor discrepancies that do not essentially affect the normal use of the Goods, unless the Parties have concluded a separate quality agreement in which case the latter shall prevail.
Biodegradable items. Biodegradable items are not covered by the foregoing warranty and must be put into use as soon as possible from the moment of delivery. Durability: one growing season under the following conditions: temperatures between minus 5˚ Celcius to a maximum of 40˚ Celcius. Installation: no more than nine (9) months from production. Storage: life time of nine (9) months under the following conditions: cool and dry place: temperatures between minus 5˚ Celcius to a maximum of 40˚ Celcius and a maximum humidity of 50% and not to be exposed to direct sun radiation. Inside the original boxes. Stored indoor (not exposed to direct sun radiation). For the biodegradable plastic items, PNBV will be able to supply the “Certificate for awarding and use of the ‘OK COMPOST’ conformity mark” dated 26 February 2015 valid till 26 February 2020.
Biodegradable twine. For all biodegradable twine delivered under an Agreement, PNBV shall grant the Buyer with the same warranty terms as provided for by PNBV’s supplier.
DrainVision. PNBV warrants that the DrainVision system will from the date of commissioning and for a period of twelve (12) months thereafter conform to the published specifications for the use thereof. The foregoing shall not apply in case of defects caused by normal wear and tear, damage caused by impacts or accidents attributable to Buyer and in case Buyer has not complied with instructions given by PNBV. The warranty period shall immediately come to and end if Buyer (or any third party instructed by Buyer) has opened the system without PNBV’s prior (written) approval.
10.4. The warranty granted above shall extend directly to Buyer only and not to Buyer’s customers, agents or representatives and is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by PNBV.
10.5. PNBV shall have no obligations under warranty if the alleged defect or non-conformity is found to have occurred as a result of normal wear and tear, stress testing, exceeding specified maximum operation conditions, misuse, neglect, improper handling, improper installation, improper storage, improper transportation, modification, combining it with other goods, or other circumstances attributable to Buyer.
10.6. PNBV’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at PNBV’s option, either to the replacement or repair of non-conforming Goods and/or Services or to an appropriate credit for the purchase price thereof. To the extent title has already passed to Buyer, the non-conforming Goods shall become PNBV’s property as soon as they have been replaced or credited. Unless otherwise agreed in writing, Buyer shall not take any legal action based on non-conformity of the Goods and/or Services, or make a counterclaim based thereon, as a result of any action taken by PNBV against Buyer based on non-performance of the Agreement, after expiry of the warranty period pursuant to Section 10.3.
11. Compliance with Laws
11.1. Buyer shall at all times comply with all applicable laws and regulations, including but not limited to laws and regulations on anti-bribery, anti-trust, data protection, anti-corruption, environmental compliance and export control.
11.2. Buyer shall furnish to PNBV any information required to enable PNBV to comply with any applicable laws, rules, and regulations in its sale of the Goods and/or Services.
11.3. Buyer agrees to indemnify and hold PNBV and its affiliates harmless from any claims, liabilities, penalties and associated costs and expenses, which PNBV may incur due to Buyer’s non-compliance with applicable laws, rules and regulations as set forth in, but not limited to, Section 11.
12. Intellectual Property
12.1. PNBV reserves all Intellectual Property Rights in respect of the Goods and/or Services. Without PNBV’s prior written permission, Buyer shall not use, reproduce, modify, publish or imitate the Goods and/or Services, in whole or in part, in any way.
12.2. The Agreement does not entail any transfer of or license to any Intellectual Property Rights or know how relating to the Goods and/or Services which may have been made available to Buyer, other than a limited license to use the Goods and/or Services as set forth in, and in accordance with, the Agreement.
12.3. In the event of any third party claim against Buyer for infringement of Intellectual Property Rights arising directly from the use of the Goods and/or Services as supplied by PNBV to Buyer, PNBV may at its own expense conduct any ensuing litigation and all negotiations for a settlement of the claim. PNBV will bear the costs of any payment (either by way of a lump sum or a continuing royalty payment) to be made in settlement or as a result of an award in a judgment against PNBV in the event of litigation. The benefit of this Section 12.3 is granted to Buyer by PNBV only in the event that Buyer (i) gives PNBV prompt notice in writing of any such claim being made or action threatened or brought against it, (ii) takes reasonable steps to mitigate any losses or damages incurred as a result of the claim, (iii) makes no admission of liability or takes any other action in connection therewith, (iv) permits PNBV to handle the defense or settlement of the claim as set forth above, and (v) gives all reasonable information, cooperation and assistance to PNBV in relation to the handling of the claim. In addition, if it is made a condition of any settlement made by PNBV, or judgment awarded against Buyer, Buyer will return or destroy, as applicable, all infringing Goods still under its control and stop using any affected Services subject to a refund by PNBV of any price already paid for such Goods or already paid for future use of the Services. The foregoing states PNBVs entire liability and Buyer’s exclusive remedies for intellectual property claims with respect to the Goods and/or Services.
12.4. The foregoing shall not apply to any custom or semi-custom Goods manufactured and/or supplied by PNBV in accordance with Buyer’s specifications.
13. Data Protection
13.1. Where Buyer in the performance of the Agreement processes PNBV’s personal data (as defined by applicable law) (hereafter collectively referred to as “Personal Data”), Buyer shall:
(a) process Personal Data only insofar necessary to perform its obligations under the Agreement, PNBV’s written instructions, or as required by law;
(b) promptly, but in any case within twelve (12) hours, inform PNBV of any actual or suspected security incident involving the Personal Data and to provide all data required under applicable law or requested by PNBV with regard to such security incident; and
(c) enter into a separate data processing agreement with PNBV at PNBV’s first written request.
14. Limitation of Liability
14.1. The Parties agree that Buyer shall in no event be entitled to claim any compensation under the Agreement for indirect, incidental, consequential or punitive damages including but not limited to loss of profit, decreased turnover, cost of cover, or property damage, regardless of whether PNBV has been advised of the possibility of such damages. PNBV shall in no event be liable for damages of any kind resulting from loss of crop and/or production.
14.2. Without limitation to the obligations of PNBV under Section 10, PNBV’s liability for direct damages under an Agreement shall not exceed fifty (50) percent of the purchase price paid to PNBV for the affected Goods under such Agreement in the twelve (12) months preceding the event giving rise to the claim, with a maximum amount of € 25,000 (twenty five thousand euros).
14.3. PNBV shall not be liable for any damage caused to third parties resulting from defects in the design and/or manufacturing of the Goods, unless and to the extent to be established in accordance to applicable mandatory provisions of law regarding the liability for death or bodily injuries or damage to personal property, directly caused by defective Goods.
14.4. Buyer shall indemnify and hold PNBV and its affiliates harmless from all claims for damages of third parties who, for whatever reason, allege to have suffered damage through Goods delivered by PNBV, unless PNBV is liable for these damages pursuant to Sections 12.3 or 14.3.
14.5. Limitations of liability will not apply against the injured Party in case the damage resulted from gross negligence or willful misconduct of the other Party’s senior management or where liability cannot be excluded or limited under applicable mandatory laws.
15. Force Majeure
15.1. PNBV is not responsible for any delay or other suspension or deviation in the performance of PNBV’s obligations under the Agreement which is (in whole or in part) caused by (i) fire, flooding or other natural disasters, (ii) strikes or industrial actions or disputes, (iii) acts or omissions of governmental agencies (including customs agencies in the country of origin or destination), (iv) default of suppliers or sub-contractors (including but not limited to carriers), (v) shortages on the market of required materials or labor, (vi) theft from warehouses of PNBV or its suppliers, (vii) any change in currency laws or regulations or other adverse economic or financial developments in or relating to Buyer’s place of business, or (viii) any other circumstances outside PNBV’s reasonable control (each hereafter a “Force Majeure” event or condition).
15.2. The estimated delivery dates specified in the Agreement shall be extended by that period of time during which PNBV is unable to perform due to a Force Majeure event; provided, however, that in the event that such delay exceeds three months, PNBV or Buyer may cancel the affected Agreement(s) by written notice, in which case PNBV is not liable for any resulting damages.
15.3. Nothing in this Section 15 will excuse Buyer from its payment obligations for Goods and/or Services received.
16.1. A Party shall only be entitled to terminate the Agreement or suspend the performance of its obligations thereunder in whole or in part if:
(a) the other Party files a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, assignment for the benefit or creditors or similar proceeding; or
(b) the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or
(c) the other Party is in material breach of the Agreement and that breach (a) is not capable of being cured, or (b) if capable of being cured, remains uncured for thirty (30) calendar days after receiving written notice of the breach. Any breach of Sections 7.1, 12, 11, 13, and 17 shall be deemed a material breach that is incapable of cure.
16.2. Buyer shall inform PNBV as soon as reasonably possible of any change of control with respect to Buyer, in which case PNBV shall have the right to terminate the Agreement within thirty (30) calendar days of the date of receipt of such notice.
17. Confidentiality and Publicity Restrictions
17.1. Except as otherwise provided hereunder, all Confidential Information communicated by PNBV to Buyer shall be kept in confidence and shall be used only for the purpose of any Agreement, except:
(a) as may be necessary to comply with laws, statutes and regulations, provided that, prior to disclosure, Buyer notifies PNBV of such requirement and cooperates with PNBV’s efforts to avoid or minimize the disclosure;
(b) to the extent such Confidential Information is already known to Buyer, becomes known to Buyer without confidentiality obligations attached or is independently developed by Buyer without use of Confidential Information;
(c) to the extent such Confidential Information is or becomes known to the public other than by a breach of this Section 17;
(d) to professional advisers of Buyer who are under duties of confidentiality; or
(e) with prior written consent of PNBV.
17.2. Buyer will take all reasonable measures to ensure safe preservation or storage with respect to the Confidential Information and shall obtain appropriate undertakings of confidentiality from its employees. Buyer shall promptly return or destroy all Confidential Information when requested.
18. Governing law and Competent Court
18.1. The Agreement, the (overall supply) relationship between the Parties and any dispute (whether contractual or non-contractual) arising out of or in connection with the Agreement, as well as any claims based on tort, shall be governed by the laws of the Netherlands, without regard to its choice of law rules or the UN Convention on the International Sale of Goods (CISG).
18.2. Any controversy or claim arising out of or relating directly or indirectly to the Agreement, not capable of satisfactory amicable resolution within thirty (30) days after written notice sent by one Party to the other Party setting forth with specificity any such controversy or claim, shall be finally settled by the competent courts of Amsterdam, the Netherlands.
18.3. Nothing prevents or prohibits Buyer or PNBV from seeking urgent interim relief in any court of competent jurisdiction, temporary restraining orders, temporary or permanent injunctions and/or orders of specific performance, as may appear reasonably necessary to preserve its rights.
19.1. Buyer shall not subcontract, transfer, pledge or assign any of its rights or obligations under the Agreement without the prior written consent of PNBV, which consent shall not be unreasonably withheld. Any such pre-approved subcontracting, transfer, pledge or assignment shall not release Buyer from any of its obligations under the Agreement. PNBV may assign or transfer the Agreement or any of its rights and obligations under the Agreement to any of its affiliates upon written notice to Buyer.
19.2. The applicability of any general terms or conditions used or to be used by Buyer is expressly rejected.
19.3. The Agreement is the entire agreement between the Parties concerning its subject matter and supersedes all prior and contemporaneous oral and written agreements and understandings concerning its subject matter.
19.4. In the event that any provision(s) of these General Terms of Sale and/or the Agreement shall be held invalid and/or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions of the Agreement. Any such provision held invalid, unlawful or unenforceable, shall be substituted by a provision of similar importance reflecting the original intent of the provision to the extent permissible under applicable law.
19.5. All terms and conditions of the Agreement which are destined, whether express or implied, to survive the termination or the expiration of the Agreement, including but not limited to Sections 12, 11.3, 11.3, 14, 17, 18, 19.5, and 19.6, shall survive.
19.6. Neither the failure nor the delay of a Party to enforce any provision of the Agreement shall constitute a waiver of such provision or of the right of that Party to enforce each and every provision of the Agreement.
19.7. PNBV may amend these General Terms of Sale from time to time by sending a new version of the General Terms of Sale to Buyer.