Terms and Conditions
3995 GA Houten
Chamber of Commerce Registration Number: 55590705
These PalmSens BV Terms and Conditions of Sale shall be the sole terms and conditions governing the sale of products of PalmSens BV, to the party listed on the purchase order or other order documentation (“Buyer”). PalmSens BV’ acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these terms and conditions. Any and all Buyer terms and conditions are hereby rejected and shall be of no effect. Buyer shall be conclusively deemed to have accepted these terms and conditions upon any of the following by Buyer, its agents or representatives: (i) written or electronic acknowledgement or acceptance of the PalmSens BV terms and conditions, (ii) transmission to PalmSens BV, its agents or representatives of any order for PalmSens BV Products or services, or (iii) acceptance of or payment for any Product or service covered hereby. PalmSens BV’ failure to object to any provision contained in any communication from Buyer shall not be deemed a waiver of any provision hereof.
The “Subjected Product” being the Buyer’s product which is subject to PalmSens BV’s product(s), hereafter referred to as “Product”.
As a subgroup of products, PalmSens BV offers products that are used in Buyers’s end product, hereafter reffered to as “OEM Products”. For OEM Products, additional terms and conditions apply:
- PalmSens BV needs to be informed about the intended application for the Subjected Product.
- It is not allowed to use the OEM Products from PalmSens BV for other applications as initially informed, without prior consensus of PalmSens BV.
- It is not allowed to use the Subjected Product for generic research in a way similar to PalmSens BV’s instruments for research.
- All original designs and source code of software, firmware, enclosures, circuit diagrams, printed circuit boards, logo’s, illustrations and components as developed by PalmSens BV remain intellectual property of PalmSens BV
- PalmSens BV always keeps the right to sell OEM Products to any other customer even if this includes competition for the Subjected Product.
- Under no circumstances is it allowed to attempt copying or reverse-engineering any part of supplied OEM Products from PalmSens BV
3. Errors and misprints:
Clerical errors and misprints in computations, typing or otherwise in any PalmSens BV document are subject to correction by PalmSens BV by either re-issuing of the document or adjustment to the document, as the case requires. PalmSens BV shall not be liable for any cost, expense or damage incurred by the Buyer as a result of any correction of any document by PalmSens BV.
All prices are invoiced and payable in Euros. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions that are not a part of the original price quotation. Prices are exclusive of all federal, state, municipal or other government excise, value added tax, sales, use, occupational or like taxes, tariffs, customs, duties and importing fees, the payment of which shall be the sole responsibility of Buyer regardless of whether invoiced to Buyer by PalmSens BV. Prices are consequently subject to increase by the amount of any such tax, tariff, duty or fee that PalmSens BV pays or is required to pay or collect upon sale or delivery of the Products. Any certificate of exemption or similar document or proceeding required to exempt the sale of Products from sales or use tax liability shall be obtained by Buyer at its expense. Prices may be adjusted if Products are not tendered for delivery within twelve (12) months after PalmSens BV’ receipt of the order for such Products. If Buyer fails to take delivery of the quantity of Products upon which a quantity discount price, if any, is based, Buyer will be back-billed an amount based on the quantity actually delivered hereunder and upon the quantity pricing schedule in effect at the time the order was placed. Such charges will be in addition to any cancellation charges.
5. Terms of Payment:
Terms are payment before delivery, except where satisfactory open account credit is established, in which case terms of payment are net thirty (30) days from the date of invoice. PalmSens BV reserves the right at any time, in its sole discretion, to revoke any credit extended to Buyer. PalmSens BV will issue invoices on delivery in the case of all Products; and if deliveries are authorized in installments, each shipment shall be invoiced and paid when due without regard to other scheduled deliveries. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year). Amounts owed by Buyer with respect to which there is no dispute shall be paid without set-off for any amounts that Buyer may claim are owed by PalmSens BV and regardless of any other controversies that may exist. Buyer does hereby grant to PalmSens BV a security interest in the Products and proceeds therefrom as security for the performance by Buyer of all its obligations hereunder.
Unless specific instructions to the contrary are supplied by Buyer, PalmSens BV will select the carrier and ship the Products to Buyer’s address indicated on Buyer’s purchase order. All Products will be scheduled for shipment in accordance with PalmSens BV’ minimum order policy and applicable shipment sequence. PalmSens BV reserves the right to make shipments in installments. PalmSens BV reserves the right to make shipments when Product is available and shall invoice shipments as made. PalmSens BV reserves the right to allocate production and deliveries among its various customers under any circumstances. PalmSens BV will confirm in writing, and amend as appropriate, the shipment schedule. PalmSens BV will not assume any liability in connection with the shipment or constitute any carrier as its agent.
Buyer shall be responsible for making all claims with carriers, insurers, warehousers and others for non-delivery, loss, damage or delay. All claims for damages to the Products or shortages must be made within thirty (30) days of shipment. Under no circumstances shall PalmSens BV be liable to Buyer for any delay either in shipment or in delivery. In the absence of timely and specific shipping instructions from Buyer, or the failure of Buyer’s selected carrier to accept Products on the acknowledged shipment date, PalmSens BV may select another carrier and service level similar to that of Buyer’s selected carrier (if any), so as to complete the order as originally acknowledged by PalmSens BV.
8. Verification of Deliverables:
Buyer shall within 30 (thirty) days after receipt from the PalmSens BV review, examine and test each Product to determine whether it conforms to the applicable specifications as agreed upon in the quotation. Buyer may either: (i) accept the Product and so inform the PalmSens BV in writing; or (ii) reject the Product and provide the PalmSens BV with a written detailed statement of defects.
PalmSens BV shall, at its earliest convenience, correct all defects set forth in the statement of defects and redeliver the Product to A within fourteen (14) days after receipt of the statement of defects; or if PalmSens BV disagrees with Buyer’s statement of defects, the PalmSens BV shall promptly provide Buyer in writing the specific reasons for its disagreement. The Parties will then meet promptly and discuss in good faith to resolve the matter. Buyer shall, within 30 (thirty) days after any redelivery of a corrected Deliverable, accept or reject the redelivery in accordance with section “Verification of Deliverables”.
9. Title and Risk of Loss:
Except as otherwise stated herein, all Products will be shipped Ex Works point of origin (Incoterms 2010) point or as otherwise designated by PalmSens BV in a notice to Buyer. Products held or stored by PalmSens BV, at Buyer’s request or due to Buyer’s failure to accept delivery, after the scheduled shipment date in the applicable order, shall be at the sole risk of Buyer, and Buyer shall pay to PalmSens BV all PalmSens BV’ expenses associated with holding or storing such Products.
10. Cancellation, Rescheduling, Returns and Modifications:
Any request for order cancellation, rescheduling, return, or modification must be made in writing and such action must be approved in writing by an authorized agent of PalmSens BV. PalmSens BV, at its option, may accept or reject any such request by Buyer, and PalmSens BV reserves the right to impose charges on Buyer in connection therewith. Buyer shall not return any Products for any reason without issuance of a Return Material Authorization (RMA) number by PalmSens BV for such Products.
11. Source Inspection:
Source inspection by Buyer or Buyer’s customer must be mutually agreed in writing, at the time of ordering, and is subject to reasonable charges and safety and security conditions. Buyer shall have no right of access to any PalmSens BV facility except as specifically authorized in advance by PalmSens BV. Buyer shall indemnify and hold harmless PalmSens BV and its affiliates from any and all suits, damages, and expenses of Buyer, its agent or its customer resulting from personal injury including death or loss or damage of property occurring during, or in connection with, any visit to any facility of PalmSens BV or its affiliates.
12. Product Warranty:
Except as otherwise provided herein, PalmSens BV warrants to Buyer that for one (1) year for OEM Products and three (3) years for other Products, from the date title to the Product passes (transfer date of goods from seller to buyer), each Product sold hereunder will be free of defects in materials or workmanship and will conform to specifications set forth in PalmSens BV’ published data sheets or, where applicable, user manuals for PalmSens BV’ system products in effect at the time title passes.
13. Product Warranty Limitation:
Buyer assumes full responsibility to ensure compliance with the appropriate handling, assembly and processing of Products (including, as applicable, wire bonding and related assembly and test activities), and compliance with all guidelines set forth in the applicable PalmSens BV specifications. PalmSens BV assumes no responsibility for environmental effects on Products or for any activity of Buyer or a third party that damages the Products due to improper use, abuse, negligence, improper installation, accident, loss, damage in transit, or unauthorized repair or alteration by a person or entity other than PalmSens BV. Except as expressly provided herein, Buyer shall assume responsibility for all warranty issues with respect to its customers and end users.
14. Warranty Remedy:
PalmSens BV’ sole liability and responsibility for Products under this warranty is for PalmSens BV to repair or replace any Product that is returned to it by Buyer or credit Buyer’s account for such returned Product, provided that PalmSens BV shall have the right to reject any such remedy where PalmSens BV determines that the Warranty does not apply Product returned to PalmSens BV for warranty service will be shipped to PalmSens BV at Buyer’s expense and will be returned to Buyer at PalmSens BV’ expense. PalmSens BV’ obligation to honor its warranty for a Product is contingent upon receipt of payment in full for such Product.
15. Warranty Disclaimer:
EXCEPT AS PROVIDED HEREIN, PALMSENS BV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. LABELING ON PRODUCTS AND PACKAGING IS INTENDED SOLELY FOR COMPLIANCE WITH APPLICABLE LAW AND PALMSENS BV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARISE FROM SUCH LABELING OTHER THAN AS REQUIRED BY APPLICABLE LAW. IN NO EVENT SHALL PALMSENS BV BE RESPONSIBLE UNDER ITS WARRANTY FOR ANY DEFECT THAT IS CAUSED BY NEGLIGENCE OF BUYER OR A THIRD PARTY, STATIC DISCHARGE, MISUSE OF A PRODUCT OR MISTREATMENT OF A PRODUCT. PALMSENS BV SHALL HAVE NO RESPONSIBILITY FOR ANY PRODUCT THAT HAS BEEN ALTERED OR MODIFIED IN ANY WAY. PALMSENS BV SHALL HAVE NO RESPONSIBILITY TO THE EXTENT ANY DEFECT OR FAILURE IS CAUSED BY NONCOMPATIBILITY OF THE PRODUCTS WITH OTHER COMPONENTS USED BY BUYER. PALMSENS BV SHALL HAVE NO RESPONSIBILITY FOR NONSTANDARD PRODUCTS OR PRODUCTS PURCHASED THROUGH UNAUTHORIZED CHANNELS. THE WARRANTY OF REPLACEMENT PRODUCTS SHALL TERMINATE WITH THE WARRANTY OF THE ORIGINAL PRODUCT. UNLESS SEPARATE TERMS ARE PROVIDED, ALL SOFTWARE IS EXPRESSLY PROVIDED “AS IS”.
16. Limitations of Liability:
PALMSENS BV’ EXPRESS WARRANTY TO BUYER AND THE INTELLECTUAL PROPERTY INDEMNITY DESCRIBED HEREIN ARE SOLELY FOR THE BENEFIT OF BUYER AND NO OTHER PARTY, CONSTITUTE PALMSENS BV’ SOLE LIABILITY AND THE BUYER’S SOLE REMEDY WITH RESPECT TO THE PRODUCTS, AND ARE IN LIEU OF ALL OTHER WARRANTIES, INDEMNITIES, LIABILITIES AND REMEDIES. UNLESS OTHERWISE EXPRESSLY PROVIDED IN A WRITING SIGNED BY BOTH PARTIES, PALMSENS BV DOES NOT INDEMNIFY, NOR DOES IT HOLD BUYER HARMLESS, AGAINST ANY LIABILITIES, LOSSES, DAMAGES AND EXPENSES (INCLUDING ATTORNEY’S FEES) RELATING TO ANY CLAIMS WHATSOEVER, INCLUDING WITHOUT LIMITATION, CLAIMS FOR PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE RELATING TO THE PRODUCTS SOLD HEREUNDER. IN NO EVENT SHALL PALMSENS BV BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE DAMAGES, DUE TO ANY CAUSE WHATSOEVER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF PALMSENS BV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST PALMSENS BV MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED. THE TOTAL LIABILITY OF PALMSENS BV TO BUYER AND/OR ANY OTHER PARTY FROM ANY LAWSUIT, CLAIM, WARRANTY OR INDEMNITY SHALL NOT EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY BUYER TO PALMSENS BV FOR THE SPECIFIC PRODUCTS (AS IDENTIFIED BY PART NUMBER) SOLD UNDER THE ORDER SHIPMENT(S) AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS THAT GAVE RISE TO THE LAWSUIT, CLAIM, WARRANTY OR INDEMNITY. THE EXISTENCE OF MULTIPLE CLAIMS RELATED TO THE SAME PRODUCT AT ISSUE SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
17. Use in Life Support and Other Critical Applications:
Products sold by PalmSens BV are not designed, intended or approved for use in life support, implantable medical devices, transportation, nuclear, safety or other equipment where malfunction of the Product can reasonably be expected to result in personal injury, death, severe property damage or severe environmental harm. Buyer represents and warrants that it will use appropriate safeguards to minimize potentially dangerous consequences associated with Product failure. Notwithstanding the foregoing, if Buyer uses or sells Products for in such critical applications, it does so at Buyer’s own risk and Buyer agrees to defend, indemnify and hold harmless PalmSens BV from any and all damages, claims, suits or expenses resulting from such use.
These terms and conditions are not assignable by Buyer without PalmSens BV’ prior written consent and any unauthorized attempt to assign any rights, duties or obligations arising hereunder shall be void. PalmSens BV may, as it deems necessary, subcontract any part of the work or services to be provided pursuant to these terms and conditions. These terms and conditions shall be binding upon each party and their successors and permitted assigns.
19. Governing Law:
Any and all matters in dispute between the parties, whether arising from or relating to these terms and conditions or arising from alleged extra-contractual facts including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of contract, shall be governed by, construed, and enforced in accordance with the laws of The Netherlands, without resort to Dutch conflict of laws provisions and regardless of the legal theory upon which such matter is asserted and the sole jurisdiction and venue for all actions related to the subject matter hereof shall be Den Hague, The Netherlands.
20. Force Majeure:
PalmSens BV shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond PalmSens BV’ control, including, without limitation, acts of nature, pandemics, epidemics, unavailability of supplies or sources of energy, riots, wars, terrorist acts, sabotage, fires, strikes, labor difficulties, delays in transportation, delays in delivery or defaults by PalmSens BV’ vendors, or acts or omissions of Buyer. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of one-hundred-twenty (120) days, PalmSens BV or Buyer shall have the right by written notice to the other to cancel the order for the Products subject to the delayed delivery without further liability of any kind.
The Buyer hereby acknowledges PalmSens BV has a lien over all goods in its possession belonging to PalmSens BV to secure payment of any or all amounts outstanding from time to time.
22. Bankruptcy or Insolvency:
PalmSens BV reserves the right, by written notice of default, to cancel any order, without further obligation or liability to Buyer, on the occurrence of any of the following: (i) the insolvency of Buyer; (ii) the filing of a voluntary petition in bankruptcy by Buyer; (iii) the filing of an involuntary petition to have Buyer declared bankrupt; (iv) the appointment of a receiver or trustee for Buyer; (v) the execution by Buyer of an assignment for the benefit of creditors; (vi) the discontinuance of business by Buyer; or (vii) the sale by Buyer of the bulk of its assets other than in the usual course of business.
Should any of these terms and conditions be held by a court of competent jurisdiction to be contrary to law, that term or condition will be enforced to the maximum extent permissible and the remaining terms and conditions will remain in full force and effect.
24. No Agency:
PalmSens BV and Buyer are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these terms and conditions. Buyer is solely responsible for its employees and agents and shall indemnify PalmSens BV against any claim, liability, cost or damage related to Buyer’s actions or those of its employees or agents, including, but not limited to, the making of unauthorized warranties or representations on behalf of PalmSens BV.
25. Third Party Beneficiaries:
Buyer represents and warrants that there exist no third party beneficiaries to Buyer’s rights hereunder.
26. Basis of Bargain:
THE PARTIES AGREE THAT THE WARRANTY DISCLAIMER, THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY PROVISIONS ARE MATERIAL, BARGAINED TERMS THAT ARE FUNDAMENTAL TO THESE TERMS AND CONDITIONS AND ARE REFLECTED IN THE CONSIDERATION TO BE GIVEN BY BOTH PARTIES UNDER THESE TERMS AND CONDITIONS AND IN THE DECISION BY BOTH PARTIES TO ACCEPT THESE TERMS AND CONDITIONS.
27. Separate Transactions:
Each shipment made hereunder shall be considered a separate transaction. In the event of any default by Buyer, PalmSens BV may decline to make further shipments. If PalmSens BV elects to continue making shipments, such action shall not constitute a waiver of any default by Buyer or in any way affect PalmSens BV’ legal remedies for such default.
28. Entire Agreements and Amendments:
These terms and conditions constitute the entire agreement between the parties and supersede all previous communications, whether oral or written. Any change to these terms and conditions may be made only upon mutual agreement of the parties in writing.