Terms and conditions
of Sale and Supply

1. General Provisions; Orders; Pricing

1.1 These terms and conditions (“Terms and Conditions”) will apply to all offers, orders and agreements of sale and supply concluded or to be concluded by Palmedic B.V. (“Palmedic”) and the counterparty to such agreement of sale (“Buyer”) and to all advice, works or other services provided by Palmedic to the Buyer in relation to any goods or services (including consultancy services) sold, offered or made available by Palmedic.

1.2 Any oral offers or commitments will bind Palmedic only after and to the extent that Palmedic has confirmed them in writing. All offers of Palmedic, however they are made, will be free of obligation unless provisions to the contrary have been laid down in writing.

1.3 Palmedic is allowed to accept and reject orders of Buyer at its sole discretion. An agreement will be deemed to have been concluded after Palmedic has provided written confirmation of an order placed by the Buyer.

1.4 In the event that an agreement is concluded by e-mail or through another means of electronic communication (such as the Palmedic EDI-system), such e-mail message or statement made through another means of electronic communication is deemed to be equal to a written statement and the principle will apply, without prejudice to the provisions laid down in Clause 1.3, that an agreement may be concluded without Palmedic having to fulfill any conditions provided by law pertaining to electronic communication.

1.5 All images and specifications of goods in catalogues, price lists, advertisements, etc. must be deemed to be representations by approximation only, unless Palmedic has explicitly indicated the contrary in writing regarding a specific delivery.

1.6 Palmedic is always entitled to effect adjustments in the goods to be delivered, to improve them or comply with government or other applicable regulations.

1.7 The Buyer will be entitled to cancel an order only after receiving written consent from Palmedic, which consent may be made subject to conditions as deemed appropriate by Palmedic.

1.8 Palmedic will be entitled to charge the costs of any packaging separately. The packaging will not be taken back. Should Palmedic, however, be obliged by law or any regulations to take packaging back, any costs related to taking back or processing packaging will be borne by the Buyer.

2. Delivery

2.1 Unless otherwise agreed in writing, delivery will be effected Ex Works, Incoterms 2020 or, if any, a more recent version of the Incoterms.

2.2 Any delivery times quoted by Palmedic shall not be firm deadlines, unless provisions to the contrary have been explicitly agreed upon in writing between the parties. In the event of late delivery, the Buyer must notify Palmedic in writing, and must grant Palmedic a reasonable term of at least 14 working days as of the date of the receipt of notification to fulfill its obligations. If such extended term is exceeded, the Buyer will be entitled to rescind the order or agreement or part of the order or agreement only with respect to the goods not delivered. In such event, Palmedic will not be liable for damages, unless such damages are the consequence of willful misconduct or gross negligence by Palmedic’s executive management.

2.4 Palmedic is entitled to deliver the goods piecemeal to Buyer.

2.5 The Buyer is obliged to accept delivery of the goods upon Palmedic’s first request thereto. If Buyer fails to accept delivery, the Buyer will be liable for all costs and damages resulting therefrom, including but not limited to the costs of storing and re-delivering the goods.

3. Prices

3.1 Buyer shall pay Palmedic for the goods according to Palmedic’s then current prices.

3.2 Prices indicated on any price lists are exclusive of all applicable levies or taxes such as governmental excise, sales, use, and similar taxes, VAT, duties, or tariffs, which will be charged to Buyer, and Buyer agrees to pay all such taxes, duties, and tariffs. Buyer must provide Palmedic with written certification for any claim of tax or other exemption prior to shipment of Buyer’s order. If Palmedic is required to pay or remit such levies or taxes at a higher rate than initially charged or pay additional taxes, Buyer shall immediately compensate and hold Palmedic harmless for all such taxes (i.e., including any (additional) VAT that may arise).

3.3 Palmedic reserves the right to change prices on its price list at any time. Palmedic furthermore reserves the right to adjust prices agreed upon before delivery in the event of increases in cost-determining factors such as fluctuations in exchange rates, raw materials, labor costs or in the event of government measures, provided that such increases or measures occurred after the conclusion of the agreement but before delivery. In addition, Palmedic may, by giving notice to the Buyer at any time before delivery, increase the price of the goods to reflect any increase in the cost of the goods that is due to (a) any request by the Buyer to change the delivery date(s), quantities or types of goods ordered; or (b) any delay caused by any instruction of the Buyer or failure of the Buyer to give Palmedic adequate or accurate information or instructions.

4. Payment

4.1 All payments must be made in euros.

4.2 The Buyer shall pay through transfer to or deposit into an account indicated by Palmedic, or in any other way indicated by Palmedic.

4.3 Unless agreed otherwise in writing and without prejudice to Clause 4.2, the Buyer shall pay the entire purchase price within 30 days after the invoice date, without any deduction, discount or set-off. Time for payment shall be of the essence.

4.4 Submission of a complaint will not suspend the Buyer’s obligation to pay. Palmedic will be entitled to require the Buyer to effect advance payment of a portion of such invoice in amount to be determined at Palmedic’s discretion before it commences the execution of an order.

4.5 If the Buyer fails to pay within 30 days after the invoice date (or within another payment term agreed in writing based on Clause 4.3), it will be in default and all claims of Palmedic will become fully due and payable immediately. In that event, Palmedic will also be entitled to compensation of the statutory interest (as it applies to trade agreements) plus 2% (so if the statutory interest for trade agreements is 11%, the applicable interest will be 13%), with respect to the outstanding amount until the date of payment in full. The amount subject to this contractual interest will, as the case may be, be calculated after the end of each year, and increased by the interest owed over that year.

4.6 In the event of untimely payment, Palmedic will be entitled to compensation of all extra-judicial costs, including but not limited to costs involved in sending reminders, one or more notices of default or demand notices, which extra-judicial costs will amount to at least 15% of the total amount payable, subject to a minimum of EUR 500.

4.7 In the event that Palmedic is successful in legal proceedings against the Buyer, the Buyer will be obliged to compensate all costs incurred by Palmedic in connection with such proceedings, even to the extent that such costs exceed the cost award made by the court. Palmedic may invoke this clause irrespective of whether the Buyer has appealed against the relevant judgment at the court of appeal or the Supreme Court.

4.8 If Buyer fails to fulfill previous terms of payment or in case Palmedic shall have any doubt at any time as to Buyer’s creditworthiness, Palmedic may request Buyer – and Buyer shall promptly comply with the same – to meet certain additional payment conditions or offer payment security before making further deliveries and accept further orders from Buyer. Such payment and/or security conditions may include, amongst others, that Buyer (i) makes certain advance payments; (ii) provides an irrevocable letter of credit meeting Palmedic’s conditions; (iii) provides any other payment security to the benefit of Palmedic as deemed fit by Palmedic or (iv) fulfills another special payment arrangement as reasonably requested by Palmedic.

5. Retention of Title

5.1 Palmedic will retain title to all goods delivered and to be delivered to the Buyer until the Buyer will have fully (i) paid all purchase amounts, (ii) paid any amounts owed by the Buyer pertaining to work performed or to be performed by Palmedic for Buyer in connection with such purchase agreements, and (iii) fulfilled its obligations based on any claims pursuant to any failure in the performance of such agreements on the part of the Buyer.

5.2 The Buyer will be obliged to store the goods delivered under retention of title with due care (including but not limited to unopened and under proper conditions) and in accordance with applicable law and regulations, ensuring that they are recognizable as the property of Palmedic. In addition, it will be obliged to insure such goods against, inter alia, fire and water damage and theft. The Buyer will pledge to Palmedic any claims it has pursuant to such insurance policies upon Palmedic’s first request, as additional security with respect to Palmedic’s claims against the Buyer.

5.3 In the event that the Buyer fails in the performance of any obligation vis-à-vis Palmedic, or in the event that Palmedic has good reason to fear that the Buyer will fail in the performance of its obligations, Palmedic will be entitled to recover the goods delivered under retention of title or to have such recovered, even when the goods have to be detached. The Buyer will cooperate accordingly. The Buyer will bear the costs of recovery, without prejudice to Palmedic’s right to further damages.

6. Force Majeure

6.1 If Palmedic fails in the performance of its obligations due to an event of force majeure, it will not be liable. To the extent that the circumstance making performance impossible is not of a permanent nature, Palmedic’s obligations will be suspended. If the period during which performance is not possible due to force majeure exceeds 2 months or is expected to exceed 2 months, both parties will be entitled to cancel the agreement, without any obligation to pay the damages that may arise as a result.

6.2 In the event that Palmedic has already partially fulfilled its obligations upon the occurrence of the situation of force majeure, or is only able to fulfill its obligations in part, it will be entitled to separately invoice the part already supplied or the part that can still be supplied and the Buyer will be obliged to pay that invoice as if it pertained to a separate agreement.

6.3 A situation of force majeure affecting Palmedic within the meaning of this Clause will be deemed to have occurred in the event of, inter alia, any circumstance not in Palmedic’s reasonable control, including, but not limited to (i) a shortage of raw materials, (ii) acts of God, flood, drought, earthquake or other natural disaster; (iii) epidemic or pandemic; (iv) terrorist attack, civil war, civil commotion or riots, sabotage, war, threat of or preparation for war, full or partial mobilization, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (v) nuclear, chemical or biological contamination or sonic boom; (vi) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition; (vii) collapse of buildings, fire, explosion, accident, other forms of destruction; (viii) transport problems, any labor or trade dispute, strikes, industrial action or lockouts; (ix) non-performance by suppliers or subcontractors; (x) breakdowns of machines or tools or other breakdowns within Palmedic’s  company, (xi) digital sabotage, hacking or digital hostage situations, or (xi) interruption or failure of utility service. A situation of force majeure must also be deemed to have occurred on the part of Palmedic if one or more of the above-mentioned circumstances occurs within the companies of Palmedic’s suppliers and Palmedic cannot or could not perform its obligations, or cannot or could not perform such in good time, as a consequence.

7. Quality

7.1 The goods supplied to the Buyer will conform with their description and any applicable specification. In the absence of any specification, the goods will meet the requirements typically applicable to such goods.

7.2 The Supplier does not provide the Customer with any other warranties in respect to the goods and in particular does not warrant that the goods shall be fit for any (specific) purpose held out by the Customer.

7.3 Palmedic shall not be liable for the goods’ failure to comply with the provision set out in Clause 7.1 if (a) the Buyer makes any further use of those goods after giving notice in accordance with Clause 8.1; (b) the defect arises because the Buyer failed to follow Palmedic ’s oral or written instructions for the storage or use of the goods or (if there are none) good trade practice regarding the same; (c) the defect arises as a result of Palmedic following any specification supplied by the Buyer; (d) the Buyer alters those goods without the written consent of Palmedic; (e) the defect arises as a result of fair wear and tear, willful damage, negligence or abnormal storage or working conditions; or (f) the goods differ from their description or the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

7.4 This Clause 7 contains an exhaustive description of the rights granted by Palmedic in respect of the goods and applies to the exclusion of any other rights (such as any warranties or guarantees), statutory, contractual or otherwise, express or implied and whether oral or written, including any statements contained in (standard) sales documentation provided by Palmedic. This Clause 7 and the obligations set forth in Clause 8.3 constitute Buyer’s sole remedies and Palmedic’s sole obligations with respect to any defective and/or non-conforming good or breach of warranty and is subject to and without prejudice to Clause 8.1 of these Terms and Conditions.

8. Complaints and Inspection

8.1 The goods delivered must be checked by or for the Buyer upon delivery with respect to numbers and visible defects and any shortages or visible defects must be reported to Palmedic immediately after delivery. The Buyer must report defects not visible upon delivery within 48 hours of their discovery, though in any event within 48 hours after the time that the Buyer should reasonably have discovered them. The Buyer will not be entitled to any claim if the defect results from any incorrect operation, installation, storage, maintenance or from transport or any other event that must be attributed to the Buyer.

8.2 The Buyer will be obliged to perform the inspection or to have the inspection performed with due care, upon receipt of the goods. The Buyer will bear the risk for inspecting the goods by means of random checks and may not rely on the fact that it did not observe a defect that was visible and could have been discovered upon delivery because it – or a third party engaged by it – did not inspect the entire shipment.

8.3 In the event of a complaint on good grounds, Palmedic will only be obliged – to be decided at the Palmedic’s discretion – to repair the defect, to replace the relevant good or to credit or refund the amount charged in connection with the defective good in whole or in part, according to its own reasonable judgment and to the exclusion of any other rights of the Buyer by law.

8.4 Any and all claims for payment of an amount of money and/or repair of the relevant good and/or replacement of the good and/or supply of any missing part, on whatever basis, as well as any right (if any) to rescind the agreement will lapse at the earliest of the following times: a) upon late reporting pursuant to Article 7.1 or b) 12 months after the delivery date.

9. Liability

9.1 Any liability on the part of Palmedic in relation to the offers, orders and agreements as referred to in Clause 1.1, on any basis whatsoever, will be restricted to the provisions laid down in Clause 8.3.

9.2 Without prejudice to Clause 9.1 and to Clause 7, Palmedic’s total, aggregate and cumulative liability towards Buyer with respect to any good – on any basis whatsoever –  shall be limited to either (i) the amount ultimately paid out by Palmedic’s insurance company supplemented with the applicable deductible or alternatively, failing any such payment (for any reason whatsoever), (ii) an amount equal to the aggregate amount paid or payable by Buyer under the relevant sales agreement of the good to which the liability relates, regardless of whether such liability consists of an obligation to pay damages or repayment of an amount received from Buyer. Palmedic will assume no liability with respect to damage as a consequence of or related to any errors or omissions in advice rendered by it, nor will it assume any liability with respect to damage as a consequence of or related to errors or omissions in the processing instructions recommended by it.

9.3 Palmedic will not – irrespective of the legal basis of the Buyer’s claim – be liable for any consequential, special, incidental, punitive, or indirect damages, including but not limited to lost profits, loss of sales or business, loss of turnover, loss of revenue, loss of production, missed savings and penalties forfeited by the Buyer, loss of use or corruption of software, data or information; loss of or damage to goodwill, or damage or loss due to or in connection with interruption, ceasing or shutdown of business operations.

9.4 Nothing in these Terms and Conditions shall exclude or limit Palmedic’s liability (i) if the damage is the consequence of gross negligence or willful misconduct by Palmedic’s executive management, or (ii) if it involves liability that cannot be limited or excluded based on applicable mandatory law.

9.5 The Buyer will compensate and indemnify Palmedic against any claims by third parties and all resulting costs in connection with goods sold to Buyer by Palmedic.

10. Suspension and Dissolution

Without prejudice to Palmedic’s  rights under these Terms and Conditions, under the law or otherwise, Palmedic will at any event be entitled to suspend (further) performance or to terminate (“beëindigen” in Dutch, not rescind (“ontbinden” in Dutch”)) with immediate effect any agreement concluded with the Buyer, in whole or in part, without liability to the Buyer, if (i) any goods made available by Palmedic to the Buyer become subject to attachment, (ii) the Buyer is granted a suspension of payments or is declared bankrupt, (iii) any permits or licenses required for the performance of the agreement are withdrawn, (iv) the Buyer fails to fulfill one or more of its obligations ensuing from any agreement with Palmedic, and (if such a breach is remediable) fails to remedy that breach within 14 calendar days of the Buyer being notified in writing to do so (v) Palmedic has sound reasons to believe that the Buyer is or will be unable to fulfill its obligations under any agreement, (vi) the Buyer violates any applicable laws, or (vii) the Buyer ceases its business or if a change occurs in the control of that business. Any right of the Buyer to rescind or terminate any agreement (unless expressly provided otherwise in these Terms and Conditions) or to suspend performance is hereby excluded.

11. Applicable Law and Dispute Resolution

11.1 These Terms and Conditions and all offers, orders and agreements as referred to in Clause 1.1 as well as any ensuing agreements will be governed by Dutch law.

11.2 In the event that the Buyer is domiciled in a Member State of the European Union or in Norway, Switzerland or Iceland at the time that proceedings are commenced, any and all disputes relating to these Terms and Conditions and all offers, orders and agreements as referred to in Clause 1.1 as well as any ensuing agreements, on any basis whatsoever, shall be settled by the competent court in Amsterdam, the Netherlands. The above will not affect Palmedic’s right to submit a dispute to the court that would be competent in the absence of this provision.

In the event that the Buyer is not domiciled in a Member State of the European Union or in Norway, Switzerland or Iceland upon the commencement of proceedings, any and all disputes relating to these Terms and Conditions and all offers, orders and agreements as referred to in Clause 1.1 as well as any ensuing agreements, on any basis whatsoever, shall be settled in accordance with the rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut, or NAI). Arbitration will take place in Amsterdam, the Netherlands. The case will be submitted to three arbitrators and the arbitration proceedings will be conducted in Dutch. The arbitrators shall apply Dutch law.

The above will not affect Palmedic’s right to submit a dispute to the court that would be competent in the absence of this provision.

12. Miscellaneous

12.1 Revisions. Palmedic reserves the right to change any of the terms and conditions contained in these Terms and Conditions at any time and in its sole discretion. Any changes will be effective upon notification thereof to the Buyer. The Buyer shall be responsible for reviewing any revised terms, conditions, policies, guidelines, and information, and any notices of revisions.

12.2 Confidentiality. The information and material contained herein and any other information provided to Buyer either prior to entering any agreement or after conclusion of an agreement is submitted in confidence and with the condition that it will not be copied or otherwise reproduced and will not be used or disclosed to anyone outside Buyer’s company except with the prior written authorization by Palmedic.

12.3 Intellectual Property Rights. All current and future intellectual property rights, including but not limited to trademark rights, copy rights, patent rights, design rights with respect to Palmedic’s goods and any specifications regarding the same shall always exclusively vest in Palmedic (or its relevant licensors). Buyer may not reproduce, copy or in any manner disclose the specifications of the goods to third parties without Palmedic’s prior written consent. Notwithstanding delivery of and the passing of title in any goods, nothing in any agreement shall have the effect of granting, licensing, or transferring to, or vesting in, Buyer any intellectual property rights, including but not limited to trademark rights, copy rights, patent rights, design rights in or to any goods.

12.4 Assignment. The Buyer may not transfer or assign any agreement or any of its rights or obligations thereunder without the prior written consent of Palmedic. This will have property law effect. The foregoing does not aim to exclude the transferability or pledgeability of monetary claims arising from the exercise of a profession or business as referred to in Article 3:83(3) of the Dutch Civil Code. Palmedic is entitled to transfer any agreement or any part thereof to any third party on notice to the Buyer (and the Buyer consents and cooperates to this assignment or transfer in advance).