Applicability of these terms
1. These terms and conditions apply to all offers made by PGE B.V. (h.o.d.n.) PowerGear Europe, hereinafter referred to as: PGE, and to all agreements concluded by PGE with customers or clients,
hereinafter referred to as: the other party. Deviating stipulations only bind PGE after written agreement by PGE and only for the agreement to which the agreement relates.
2. Reference by the other party to its own terms and conditions is not accepted by PGE and are expressly rejected by PGE.
1. All quotations are always without obligation, unless they contain a term for acceptance. If a nonbinding offer is accepted, PGE has the right to revoke that offer within two working days of receipt of the acceptance.
2. If no offer has been made by PGE, an agreement is only concluded when PGE confirms it in writing or has started the execution within 8 days after PGE has received the order.
3. Images, drawings, weight indication, technical specifications and other data, included in
prospectuses, catalogues, circulars, advertisements and price lists, notified by PGE to the other party with or after the offer or order confirmation, have the nature of an approximate indication.
Information derived from this is only binding if expressly agreed.
4. All rights to offers, calculations, models, artistic and technical designs, descriptions (technical and other), drawings, sketches, diagrams and the like created by or via PGE are vested in PGE.
5. Offers, images, drawings, calculations, schemes, designs and other documents created or
published by or via PGE remain the inalienable property of PGE and may not be made available to third parties in any form for inspection or be made available without permission from PGE.
6. If the other party expressly requests this, the quotation may be accompanied by calculations, drawings, descriptions, designs, calculations, models, etc., all this in the broadest sense. In that case, the associated costs will be charged to the other party. Reimbursement of the costs mentioned does not mean the transfer of rights as referred to above in paragraph 4 of this article.
7. Documents as referred to in paragraph 4 of this article must be returned complete and
undamaged at PGE's first request; if the order is not provided to PGE by the other party, they must be returned to PGE immediately.
1. Prices quoted by PGE are based on factory prices, foreign currency exchange rates, import duties and equivalent levies, insurance rates, wages, freight, taxes and other such factors applicable at the time of the statement. If one or more of the aforementioned price-determining factors change after the date of the offer, PGE is entitled to change the agreed price accordingly.
2. Unless expressly stated otherwise, the prices quoted are per item and exclusive of VAT. All prices are ex-warehouse and exclusive of freight, handling costs and other applicable surcharges, unless expressly agreed otherwise.
3. The costs prescribed by the government for producer responsibility in the context of a waste management contribution are passed on by PGE to the other party.
1. Each agreement is subject to the suspensive conditions that the information to be obtained shows the creditworthiness of the other party. PGE is at all times entitled to demand security from the other party for timely and full payment of its payment and other obligations. PGE is also at all times entitled to deliver only against cash payment, advance payment or cash on delivery.
2. Unless expressly agreed otherwise and without prejudice to the provisions of paragraph 1 of this article, the other party is obliged to pay the invoice from PGE within 14 days of the invoice date in a manner to be indicated by PGE in the currency in which the invoice was issued.
3. Negligence on the part of the other party regarding the purchase of goods and/or not giving the PGE the opportunity to perform the agreed work does not affect the other party's payment obligation.
4. If partial deliveries are made, PGE is not obliged to make further deliveries before invoices relating to earlier partial deliveries have been paid, without prejudice to the provisions of the other paragraphs of this article.
5. If the other party has not fulfilled its payment obligations on the due date, it is in default without notice of default being required. In that case, the other party is liable for all damage suffered and to be suffered by PGE.
6. In the absence of timely payment, the other party will owe interest equal to the statutory interest, plus 3% on the unpaid part of the principal amount, without a reminder or notice of default.
7. Costs of collection, both judicial and extrajudicial, are for the account of the other party. The extrajudicial collection costs are set at the collection rate as laid down in the calculation schedule for lawyers' bills.
1. Agreed delivery times can never be regarded as deadlines, unless expressly agreed otherwise. In the event of late delivery, the other party must give PGE written notice of default and PGE must be given a reasonable period to still fulfill its obligations.
2. PGE is permitted to deliver sold goods in parts, without prejudice to the provisions of paragraph 1 of this article. If goods are delivered in parts, PGE is authorized to invoice each part separately.
3. If the other party remains in default to purchase after a summons, PGE can decide to deliver at a time to be determined by PGE, or the agreement or the unexecuted part of the agreement, without judicial intervention and without notice of default being required, declare dissolved without prejudice to PGE's right to compensation.
Non-attributable shortcomings (force majeure)
1. Force majeure shall be any circumstance beyond the control of PGE, which prevents the normal execution of the agreement. Such circumstances giving rise to force majeure shall in any case include failure to deliver from the suppliers of PGE for whatever reason, strikes, lockouts, disruption of energy supplies, traffic disruptions, machine breakdown, government measures, as well as the consequences thereof, loss or damage during transportation etc.
2. In the event of impediment to the execution of the agreement as a result of force majeure on the part of PGE, PGE is entitled, without judicial intervention, either to suspend the execution of the agreement for a maximum of six months, or to dissolve the agreement in whole or in part, without that PGE would be obliged to pay any compensation. During the suspension, PGE is authorized and at the end thereof, PGE is obliged to opt for implementation or for full or partial dissolution of the agreement.
1. The other party bears the risk of the goods ordered by it from the moment they have left the warehouse of PGE or – upon delivery or supply from warehouses of third parties – of these third
parties. In addition, the goods are also loaded and unloaded at the risk of the other party.
1. Full or partial dissolution of the agreement takes place by means of a written statement from the person entitled to do so. Before the other party sends a written notice of dissolution to PGE, the other party will at all times first give PGE written notice of default and allow it a reasonable period to still fulfill its obligations or to remedy shortcomings, which shortcomings the other party must accurately, report in writing.
2. The other party has no right to dissolve the agreement in whole or in part or to suspend its
obligations if it itself is already in default with the fulfillment of its obligations.
3. If PGE agrees to dissolution, without there being any default on its part, it is always entitled to compensation for all financial loss, such as costs and lost profit. This financial loss is set at at least 30% of the price (excluding VAT) that the other party should have paid to PGE during the execution of the agreement.
4. In the event of partial dissolution, the other party cannot claim cancellation of performances already performed by PGE and PGE is fully entitled to payment of the performances already performed by it.
Retention of title and right of retention
1. PGE reserves the ownership of the goods delivered or to be delivered by it, as long as the
receivables regarding goods delivered or to be delivered by PGE to the other party pursuant to an agreement or pursuant to such an agreement performed or to be delivered for the benefit of the other party activities performed, as well as receivables due to failure to comply with such agreement, have not been paid to PGE by the other party.
2. If the other party does not fulfill any obligation under the agreement with regard to goods sold or work to be performed towards PGE, PGE is entitled to take back the goods, both the originally delivered and the newly formed goods, without notice of default being required. The other party authorizes PGE to enter the place where these items are located.
3. As soon as the other party has fulfilled all its payment obligations under this and similar
agreements, PGE grants the other party the ownership of the delivered goods subject to PGE's pledge, for the benefit of other claims that PGE has against the other party. At the first request of PGE, the other party will cooperate with actions that are desired in that context.
Resale and Tracking
1. As long as the delivered goods have not yet been paid in full, the other party is not authorized to resell, deliver or pledge the goods or transfer them to another party under whatever title, whether in use or not. or make it available.
2. Nor is the other party authorized to place delivered goods, as long as they have not yet been paid in full, in such a way that they lose their legal independence.
Penalty clause and control
1. The other party that acts contrary to the provisions of Article 10 forfeits a fine in favor of PGE for every act that falls under one of the prohibitions stated there. The fine is equal to twice the invoice amount, but at least EUR 5,000 per transaction.
2. PGE is authorized to have an independent accountant audit the books of the other party, to be able to monitor compliance with the provisions of Article 10.
1. PGE grants no liability whatsoever regarding delivered goods or parts thereof, other than the liability which PGE regarding the relevant good and/or the relevant part is granted by the supplier of that good or that part.
2. PGE guarantees the soundness of the work delivered by it.
3. The guarantee of PGE lapses if a defect in the item or part thereof is the result of improper or injudicious use, maintenance or other negligence on the part of the other party or if work has been performed on the item or changes have been made to the item by anyone other than PGE without its permission or instruction.
4. The costs of detecting and repairing defects not covered by PGE's warranty under this provision shall be charged to the other party at the applicable rates.
Indemnification against claims by third parties
1. If execution of an agreement takes place using drawings, data or advice supplied by the other party to PGE and if this violates intellectual property rights (including copyrights, patent rights, trademark rights, design rights and/or other rights) of third parties, the other party is required to indemnify PGE against any claims it may have against PGE as a result.
2. If a third party objects to the manufacture and/or delivery on the grounds of any alleged
right as referred to in Article 13.1, PGE shall be entitled on that ground to immediately cease
manufacture and/or delivery and to demand reimbursement of the costs incurred, without prejudice to any further claims of PGE for compensation against the other party.
1. As soon as the goods have been received by the other party, the other party shall determine whether the goods are in order in every respect and/or whether they comply with the order placed.
2. Any complaints concerning the delivery of goods, the performance of work/repairs or the
amount of the invoice shall be submitted in writing to PGE within a reasonable period after receipt of the goods, or the performance of work/repairs, or receipt of the invoices, respectively, accurately stating the facts to which the complaint relates.
3. Reasonable time means within 14 days after receipt of the goods or after performance of the work/repairs or after receipt of the invoices.
4. The right of complaint lapses if the other party has not submitted a complaint within the
above-mentioned period and/or if the other party has not given PGE an opportunity to repair the defects.
5. Complaints, including complaints regarding the guarantee obligations, shall never entitle the other party to suspend fulfilment of its obligations towards PGE.
1. PGE shall only be liable for direct damage sustained by the other party, which damage is the direct and exclusive consequence of PGE's fault, with the proviso that only damage against which PGE is insured shall be eligible for compensation.
2. PGE shall not be liable for any indirect damage (including business and/or stagnation
damage) due to any cause whatsoever.
3. If, notwithstanding the exclusion of liability contained in paragraph 2 of this article, PGE
incurs any liability for indirect damage, such liability shall in any event be limited to a maximum of the net invoice amount for the goods supplied or work performed by PGE. Net invoice amount means exclusively the net invoice amount of the goods supplied by PGE or of the work performed by PGE in respect of which PGE is liable to pay damages.
4. If and to the extent that a continuing performance contract has been concluded between the parties, PGE's liability, for any reason whatsoever, shall in any event be limited to the price (excluding VAT) stipulated in the relevant contract for the services provided by PGE during the three-month period preceding PGE's default.
5. PGE shall not be liable for any damage caused by auxiliary persons, including as a result of
their willful misconduct or gross negligence.
1. All concluded contracts with PGE and any subsequent contracts for the purpose of executing such contracts shall be governed exclusively by Dutch law.
2. All disputes arising from the metioned agreements shall be adjudicated exclusively by the
competent court in Breda without prejudice to the jurisdiction of any other court in respect of provisional, precautionary or executory measures - unless within 1 month after PGE has invoked this provision in writing, the other party opts for adjudication by another court that is competent by law.
These Terms and Conditions shall take effect from 24.06.21, and have been filed with the Chamber of Commerce and Factories for Western North Brabant in Breda. From that date they replace all previous conditions.
PGE B.V. (h.o.d.n.) PowerGear Europe
4838 GZ BREDA