Terms and conditions
Article 1. Applicability and definitions
1.1 These general terms and conditions are applicable to all offers, and sale-agreements, assignments and deliveries by Pirox International BV (hereafter referred to as Pirox) and all legal relationships following from such offers, sale-agreements, assignments and deliveries. Changes can only be agreed upon by a written statement duly signed on behalf of Pirox. The provisions in these general terms and conditions of Pirox are also made for the benefit of the producers, licensors and suppliers at the side of Pirox and Pirox is allowed to enforce these provisions in its own name on behalf of these parties.
1.2 In these terms the “client” is considered to be the buyer or principle, or anyone who enters into an agreement with Pirox or desires or expects to enter into an agreement, or for whom Pirox makes an offer or a delivery or performs work. In case of multiple clients (for instance by giving a joint order or assignment), these parties are individually responsible towards Pirox for the entire payment of the assignment (irrespective of the name on the invoice). The client and Pirox are jointly and severally referred to as “parties”.
1.3 The term “product” refers to any material or good which originates from Pirox or its suppliers. The term product includes (i.e.) manuals, wrappings, outer-sleeves, boxes, printed-warrantees and accessories such as power-adapters and audio-cables. The term may also refer to software, marketing material and other goods delivered by Pirox not with the intention to transfer legal title.
1.4 In case Pirox does not pursue the strict fulfilment of these terms, this does not mean that these terms are not applicable or that Pirox would lose its right to require strict fulfilment of these terms in future or similar cases.
1.5 If any article of these general terms or another understanding between the parties, is or becomes not enforceable for whatever reason, the other understandings remain in force and the parties also agree that the unenforceable understanding shall understood to be replaced by an understanding as close as possible to the previous article, without being unenforceable.
1.6 The applicability of other stipulations of the client and possible general terms of the client are herewith explicitly rejected by Pirox. These stipulations are only binding to Pirox, as far as they, intentionally and expressly have been accepted in writing and signed by Pirox.
Article 2. Offers
2.1 All offers, quotes and estimates, in whatever form, made by Pirox are free of obligations. The client bears all risks relating to its own information, designs, drawings and perceived characteristics of a products.
2.2 An offer is only binding when communicated in writing by Pirox thereby stipulating a term during which the offer is open for acceptance.
2.3 Price lists, brochures, printed matter etc. provided by Pirox are subject to change and are not considered to be a quote or as complete statements.
2.4 Pirox reserves the right to refuse orders without stating the reason, to deliver them only C.O.D., or demand payment in advance.
2.5 In the event the client expects any act, right, capacity, functionality, material or monetary-satisfaction from Pirox, which is not explicitly included in Pirox’s signed orders, signed other forms communication and signed documentation, such expectation is for the sole risk of the client.
Article 3. Use of the brand
3.1 The client shall use the trade names, brand names or any other symbols of Pirox and/or the trade names, brand names or any other symbols of the products solely for the purpose of identification and active sale of products within the agreed are. Pirox reserves all rights, property rights and interests with regard to its trade names, brand names or any other symbols. The client is not allowed to change the trade names, brand names or any other symbols on the products, or to add other trade names to the products, except with prior written consent of Pirox.
3.2 The client is not allowed to place the trade names, brand names or any other symbols of Pirox or third parties/suppliers of Pirox on other products anywhere.
3.3 The limited rights of the client to make use of the trade names, brand names or any other symbols such as are described in article 3.1 are discontinued immediately upon termination of the agreement.
3.4 All expressions by the client for which the trade names, brand names or any other symbols of Pirox or of the products are used, should be signed for approval by Pirox in advance. The expressions should be presented for inspection and approval in digital form per e-mail to firstname.lastname@example.org.
Article 4. Agreement
4.1 An agreement is made after Pirox has confirmed an order or assignment in writing or after Pirox has started with the performance of the order or assignment. Also in the latter circumstance, these general terms and conditions of Pirox shall apply. The confirmation by Pirox is presumed to describe the agreement correctly and completely.
4.2 Deliveries for which no order confirmation is sent for whatever reason (for instance due to the nature and/or size of the order), the invoice is also considered to be the order confirmation. It is presumed to describe the agreement correctly and completely, unless the client protests in writing within five working days after the date on the invoice.
4.3 Additions and changes to an agreement are only binding to Pirox in so far they are confirmed by Pirox in writing and signed.
4.4 Pirox is authorised, if considered necessary or desirable, to enlist third parties for a correct performance of the order or assignment. The charges for this shall be borne by the client.
Article 5. Prices
5.1 All prices and amounts mentioned by Pirox are in Euro's (unless indicated differently by Pirox), excluding VAT (BTW) and other taxes and levies, licence-fees and costs.
5.2 These prices are based on the prices, exchange rates, wages, taxes, rights and expenses, etc. that exist during the offer. In case of an increase of one or more of the cost price factors, Pirox is authorised to raise the price accordingly. Such a price increase does not give the client the right to dissolve the agreement.
5.3 The prices are always excluding taxes that may or may not be levied by a government in connection with the sale or the use of the products to be delivered by Pirox, amongst which environmental taxes, removal contribution and packaging arrangements; Pirox is authorised to pass on these taxes and charges to the client.
Article 6. Delivery
6.1 The client, or third party acting on behalf of the client, must carefully check the products delivered by Pirox immediately after the products are physically handed over, or shipped, to the client or said third party.
6.2 Complaints concerning shortages or visible defects with respect to the entire or partial delivery, should be brought to the notice of Pirox in writing within five (5) working days after delivery expressed in 6.1 above, stating the delivery or invoice number of the shipment concerned, failing which, any right of the client is forfeited.
6.3 The client will render all necessary cooperation for investigation of the complaint, amongst others by providing Pirox the opportunity to investigate all relevant circumstances that are involved with the complaint. If the client does not cooperate or if an investigation is no longer possible, the complaint is null and void. The client shall bear the costs of the investigation. These costs shall be reimbursed by Pirox pro-rata-parte in the event the complaint was predominantly correct.
6.4 From dealing with a complaint, a client cannot derive rights. Complaints of whatever nature do not discharge the client from its payment obligations towards Pirox.
6.5 In case of complaints, the client is obliged to discontinue the use, the treatment, processing and/or installation of the products concerned , and similar products, immediately and furthermore to do anything reasonably possible to prevent (further) damage to itself and third parties including its customers and other end-users.
6.6 On the condition that complaints have been received timely, correctly and in accordance with this article and client has satisfactorily shown that the delivery does not live up to the agreement, Pirox has the choice to replace the products that were not sound upon return by new products, or to repair the products concerned, or to refund the purchase price, resp. to credit the invoice amount, or to grant the client a discount on the price to be determined in consultation with the client. If this is not reasonably possible for Pirox, the client has the right to dissolve the agreement, save when the shortcomings do not justify dissolution. By adhering to one of the above mentioned stipulations, Pirox has completely acquitted itself of its obligations also in respect of any (assumed) claims by the client for loss of profits or other assumed damages at the side of the client. The client is not entitled to return the products before Pirox has agreed to this conform the stipulations of the applicable RMA terms of Pirox.
Article 7. Payment
7.1 Unless agreed to otherwise in writing, payment must occur by deposit or money transfer to a bank account as indicated by Pirox. The currency day mentioned on the bank statements of Pirox is considered to be the day of payment.
7.2 Payment by the client must take place without settlement (in Dutch “verrekening”), postponement (in Dutch “opschorting”), deduction (in Dutch “korting”) and self-attachment (in Dutch “eigen-beslag”) for whatever reason.
7.3 Payment should be made at once, unless instalments of the payment have been agreed on, in which each expired period is considered to form a separate payment.
7.4 If the client does not pay the owed amounts within the date stipulated by Pirox, the client will legally be in default and Pirox shall legally be entitled to additionally charge the Dutch legal interest for commercial transactions (in Dutch “wettelijke rente voor handelstransacties”) over the entire amount owed increased by 3%, from the day the amount would have to be paid by the client. In the event that full payment has not been made within the agreed term, the client will be in default by operation of law and it will also be obliged to pay extrajudicial costs equal to a minimum of 15% (fifteen percent) of the outstanding amount, subject to a minimum of EUR 500,-- (five hundred euros). The client shall also bear all costs of Pirox, including all court-costs and all costs charged by its lawyers, in the event the collection of the debt shall take place via the court.
7.5 If Pirox deems necessary, Pirox can require further security to be vested by the client, in absence whereof Pirox is allowed to postpone its obligations under the agreement.
7.6 In case the client does not or not timely fulfil any obligation arising from the agreement, offers or when the client makes a debt arrangement with its creditors, requests a moratorium, requests or enters into bankruptcy or a formal or informal pre-pack procedure, closes or transfers the company, if seizure occurs or in case a complete and timely fulfilment by the client cannot reasonably be expected any longer, each right and entitlement of Pirox can be claimed immediately and totally. Also, Pirox has the right to wholly and partially dissolve the agreement without prior default notice or legal interference. Apart from that, Pirox is allowed to physically take back all the delivered products, including but not limited to those who are not paid. The foregoing measures do not limit or prejudice Pirox’s other rights, such as the right to demand complete payment, damages, and its right to postpone the execution of the agreement.
Article 8. Property conditions / retention of title by Pirox
8.1 All products delivered by Pirox remain the full and exclusive property of Pirox until all current and future amounts due by the client (resulting from the sale and rendered services in relation thereto, and/or the neglect of the client in the fulfilment these arrangements) have been received by Pirox on its bank account.
8.2 The client is obliged to ensure careful treatment of the products and to insure them against the usual risks and does not have the right to entail, rent, loan and/or establish property rights, as long as the client has not completely fulfilled its current and future obligations towards Pirox. Also the client is obliged to transfer to Pirox any and all future rights against the insurer and to inform the insurer of the same.
8.3 The client will immediately inform Pirox when the products are (threatened to be) seized, attached or any claim which is made on (any part of) the products. Additionally the client will inform Pirox at Pirox’s first request of the whereabouts of the products. In case of seizure, attachment or a formal or informal insolvency procedure the client will immediately inform the confiscating bailiff resp. administrator or trustee of the (property) rights of Pirox. The client guarantees that a seizure on the products will immediately be lifted.
8.4 If the same type of products is delivered on one or more (partially) unpaid invoices, all products in the possession of the client are considered to be delivered on the unpaid invoices.
8.5 In the event an agreement between the parties may qualify as a “consignment agreement” or as any other agreement not designed to transfer legal title to the products or materials to the client, the client shall never become owner and the full and unencumbered ownership of the products remains with Pirox. The same applies to all marketing materials delivered by Pirox and other materials which are not designated for sale to the client or to end-users. Pirox is and remains fully entitled to take back these materials at its own discretion, at any time.
Article 9. Delivery time
9.1 All terms (meaning “dates”) stipulated by Pirox (for the delivery of the products) are approximate and have been determined on the basis of the information and circumstances that were assumed by or known to Pirox at the time of the agreement. These terms should never be considered as a fatal terms. If a change in the information and/or circumstances, regardless of the foreseeability thereof, results in delay, the delivery date is delayed accordingly, such without prejudice to the other rights of Pirox.
9.2 Exceeding the delivery periods provided by Pirox, for whatever reason, does not provide the client the right of damages or non-observance of any obligations.
Article 10. Delivery and risk
10.1 Unless agreed otherwise in writing, delivery takes place from warehouse designated by Pirox. From the moment of delivery the risk (of physical loss, perishability, fire, damages etc.) are the responsibility of the client, regardless of the cause.
10.2 If it has been agreed that the delivery will take place in phases, Pirox may delay delivery of the following phases until the client has approved the delivery in the previous phase in writing and has fulfilled all its (financial) obligations.
Article 11. Transportation
11.1 For deliveries other than those described in article 10.1 Pirox determines the method of transportation, shipment and packaging. Shipment and transportation of products occurs on account and for the risk of the client.
Article 12. Circumstances beyond Pirox’s control
12.1 If, due to circumstances beyond Pirox's control of a permanent or temporary nature, Pirox is prevented to (further) observe the agreement, Pirox is justified to completely or partially dissolve the agreement (via a mere written communication) without any obligation to pay damages , notwithstanding Pirox’s right to demand payment by the client for the already delivered products In case of postponement Pirox will still be justified to dissolve the entire agreement or part thereof.
12.2 Under circumstances beyond Pirox’s control are included all circumstances, through which Pirox is temporarily or permanently unable to fulfil its obligations, such as – for instance – a strike, transportation difficulties, fire, internet-failure, IP-issues at the side of its suppliers or alleged IP-issues by its competitors, foreign or national government regulations including import and export prohibitions or limitations, levies and duties, its resp. its suppliers or subcontractor's operational failures, as well as shortcomings by its suppliers or subcontractors, as a consequence of which Pirox no longer can fulfil its obligations towards the client (in time).
Article 13. Warrantee
13.1 Subject to different stipulations in the RMA Terms of Pirox if agreed on and subject to that which is determined in 13.4, Pirox guarantees the client that the delivered products will comply with the current specifications delivered by the manufacturer for twenty-four (24) months after delivery. If the product specifications should be unknown or unrecognizable, Pirox guarantees client for the same period of time that the delivered products will not show production errors. The warrantee mentioned in the previous sentences is only valid if the products are used and stored normally and with care and all the instructions for use and other warrantee requirements included in the agreement, the RMA Terms of Pirox and in the proof of warrantee, have been and are strictly and completely fulfilled. The warrantee only guarantees that Pirox will restore these errors to the best of its ability, or will replace the products, such according to the choice and determination of Pirox. Shortcomings should be reported to Pirox in writing in order to be dealt with. Pirox is not responsible for the recovery of data that was lost for whatever reason or for (other) damages at the side of the client, even when these originate from end-users.
13.2 The warrantee is not applicable if the errors are entirely or partially the result of incorrect, careless or incompetent use, use for other than normal objectives, external causes, such as for instance fire or water damage, or if the products are changed or repaired by others besides Pirox or have not been maintained regularly and expertly. Neither can the warrantee be called upon if replacement of any part has taken place with less compatible products and/or products that are qualitatively at least equivalent to the original parts.
13.3 By complying with one of the mentioned performances of art. 13.1 Pirox has acquitted itself entirely of its obligations. Client is not justified to claim damages of whatever nature, nor is client justified to dissolve all or part of the agreement.
13.4 Restoration outside the framework of the applicable warrantee will be billed by Pirox to the client.
13.5 In case of repair of defective products under warrantee, the client is obligated to return the products at his own cost to an address to be provided by Pirox.
Article 14. Liability and protection
14.1 Pirox is not liable for damages related to the deliveries and the delivered products other than as expressed in the provisions in this article. 14. In any event, the contractual and legal liability of Pirox shall in all circumstances be maximised to the amount of the purchase price of the unique specific defective product.
14.2 Pirox is not responsible, neither on the basis of the law, nor from agreement, for so-called resulting and/or consequential damages which client or a third party may have suffered from (the use of) the delivered products, included in this are company damages, loss of profits, environmental damages and immaterial damages.
14.3 The determinations in the previous headings leave unimpeded the liability of Pirox against certain third parties on the basis of Title 3, Department 3, Book 6 Civil Code (Product liability).
14.4 Pirox will not appeal to the liability restrictions in articles 14.1 and 14.2, if and to the extent the client can prove that the damage is a direct result of intent or gross neglect by Pirox.
14.5 Unless the client can prove that damage is caused by gross neglect or intent by Pirox, the client will protect Pirox from all claims by third parties, directly or indirectly connected to (the use of) the delivered products and the client will compensate Pirox all damages Pirox suffers as a result of such claims.
Article 15. Secrecy
15.1 Both parties are obliged to observe secrecy towards third parties about confidential (company) information and the commercial contracts and stipulations between each other. The client is obliged to take steps to ensure that this secrecy is observed by its employees.
15.2 The client of Pirox is not permitted to copy, multiply, sell or change, products models, software, IP and the documentation, for which the IP belongs to Pirox or its suppliers, both during and after the termination of the agreement.
15.3 By failing to observe that which is stated in this article, the client forfeits an immediately claimable penalty, payable to Pirox, of EUR 50,000,-- per incident and EUR 7,500,-- per day such a breach continues, whereby each separable action qualifies as a separate breach (for instance, the mere production of a 10 similar routers by the client in violation of 15.2, results in a penalty of EUR 500,000,-- and each day that these products are still sold by the client entitles Pirox to claim in addition EUR 75,000,--).
Article 16. Applicable law and disputes
16.1 All relationships, understandings and agreements between parties and the consequences thereof are exclusively governed by the laws of the Netherlands. The applicability of the United Nations Convention on Contracts for the Sale of Goods (Vienna Treaty) is explicitly excluded.
16.2 All disputes between the client and Pirox will be brought before the authorised judge in Rotterdam or, when Pirox so decides, the authorised judge at the place of residence of the client or its main assets, unless the parties later agree differently.
Article 17. Realisation of assignment
17.1 Pirox makes an effort to provide a good representation in its offers. However, the client shall explicitly inform Pirox in writing of any queries it may have and without a written and signed answer from Pirox, the client cannot assume (for instance) that a product has the specifications the client desires.
17.2 Pirox can only be legally represented by those who are qualified according to registration in the trade register of the Chamber of Commerce.
17.3 As long as an offer by Pirox has not lead to an assignment, Pirox reserves the right to dedicate its capacity elsewhere.
17.4 If according to the judgement of Pirox or according to the judgement of the client third parties need to be enlisted for the assignment, the client is obliged to cooperate in all reasonableness.
17.5 All contacts with enlisted third parties are handled by Pirox. The client can only involve third parties in the duties of the assignment after consulting with Pirox and cannot independently make agreements about the activities with these third parties.