Legal Notice – PearlSnow

General Terms and Conditions PearlSnow B.V.

General terms and conditions in relation to offers, sale, lease, rental, use and delivery of the products of Pearlsnow B.V., with statutory seat in Amsterdam, the Netherlands, registered at the trade register with the Chamber of Commerce of the Netherlands (hereinafter: “Pearlsnow”).

Applicability and Language

1.1 These general terms and conditions apply to all offers, orders and/or agreements between Pearlsnow and customers in relation to the sale, lease, rental, use and delivery and/or the granting of a right to use the products of Pearlsnow. The applicability of any general terms and conditions which may be used by the customer is explicitly excluded, and such general terms and conditions will in no event bind Pearlsnow, unless Pearlsnow has explicitly accepted these general terms and conditions of the customer in writing.
1.2 In the event the customer has entered into an agreement with Pearlsnow under these terms and conditions once, the customer is deemed to tacitly agree with the applicability of these general terms and conditions to any and all repeating offers and/or orders and/or to any future agreements to be entered into with Pearlsnow.
1.3 Pearlsnow is entitled to unilaterally change these general terms and conditions anytime.

The offer

2.1 Customers may request an offer by email, fax, telephone or by filling in the quotation form on the Pearlsnow website. A request for an offer is no legal offer but – as the last sentence implies – a request for an offer.
2.2 On the basis of the request for an offer, Pearlsnow will propose the customer a written offer.
2.3 Pearlsnow is entitled to reject a request for an offer without stating the reason at any time;

Agreement

3.1 An agreement will be entered into as soon as the customer accepts Pearlsnow’s offer in writing and expressed conditions are met.
3.2 Pearlsnow and the customer can enter into an agreement for a certain period of time. Such an agreement will be entered into for the period of time as referred to in that agreement. The agreement may be terminated in writing in accordance with the provisions of the agreement, as follows: a. by either party at the end of the initial contract period by giving one (1) month’s written notice; b. by either party at any time after completion of the initial contract period by giving three (3) month’s written notice;
3.3 Pearlsnow and/or the customer furthermore are entitled to terminate an agreement with immediate effect and without judicial intervention being required, in the event that: a. the other party fails to perform or breaches any obligations, guarantee, duty or responsibility to the other and does not fully remedy such failure, breach or default within thirty (30) days of having been given written notice; b. the other party files a petition in bankruptcy; files a petition seeking any reorganisation, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors; or makes an assignment for the benefit of its creditors; c. a receiver, trustee or similar officer is appointed for the business or property of the other party; d. any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against the other party and not stayed, enjoined, or discharged within sixty (60) days; e. the customer adopts a resolution for, or undertakes to effect, a discontinuance of its business (or a substantial part thereof) or dissolution; f. the customer is subject to a change of control whether directly or indirectly.
3.4 Upon termination or expiration of any agreement: a. the customer shall pay any amounts due within thirty (30) days following the date of expiry or termination of the Agreement; and b. all products and/or documentation delivered to the customer under the agreement shall be returned to Pearlsnow within thirty (30) days following the date of expiry or termination of the agreement

Performance

4.1 Pearlsnow shall to its best knowledge and ability perform its obligations under any agreement.
4.2 Pearlsnow shall agree all the delivery terms to the best of its knowledge and comply with these terms as much as possible. As soon as Pearlsnow becomes aware of any circumstance that may prevent the timely delivery of products, Pearlsnow will consult with the customer. The customer is under no circumstances entitled to any compensation or other relief in relation to late delivery. Pearlsnow is at all time entitled to make partial deliveries (if possible).

Prices and Payment

5.1 Unless indicated otherwise, all prices are exclusive of value added tax (VAT).
5.2 The customer must pay to Pearlsnow the amounts due within thirty (30) days following the date of the invoice from Pearlsnow.
5.3 In the event of sale the customer must pay an initial deposit of 50 % of the purchase price. Upon receipt of the initial payment Pearlsnow shall start production. Upon completion of the production the remaining amount of 50 % of the price has to be paid by the customer. Upon receipt of complete payment of the price Pearlsnow shall release the shipment.
5.4 In the event the customer, whether wholly or in part, fails to meet his payment obligations, or fails to meet his payment obligations on time, the customer is in default without any further notice being required. Once in default the customer must pay interest of 1.5 % per month or part thereof, commencing on the date payment was due. All costs, including reasonable attorney fees, incurred by Pearlsnow, either through the courts or otherwise, as a result of the customer not meeting his obligations under an agreement will be at the expense of the customer. The extrajudicial (collection) costs incurred by Pearlsnow will be set at a minimum of 15 % of the principal amount of the claim.
5.5 Failure to execute full and/or on-time payment by customer shall entitle Pearlsnow to withhold or postpone any delivery of products or other obligations to the customer until any amounts due are fully paid by the customer and received by Pearlsnow.
5.6 Pearlsnow charges a fixed €200 storage cost per palletspot, per week starting from 14 days after completion of the production.
5.7 Payment by the customer shall be made in a legal Dutch tender, without the right to invoke any rights to set-off, withhold or postpone on account of an attributable failure of Pearlsnow, whether alleged or not, in the performance of its obligations under the agreement.
5.8 Payment by the customer shall be made in a legal Dutch tender, without the right to invoke any rights to set-off, withhold or postpone on account of an attributable failure of Pearlsnow, whether alleged or not, in the performance of its obligations under the agreement.

Transport and risk

6.1 Unless otherwise agreed in writing, Pearlsnow shall deliver ex works (EXW INCOTERMS ICC edition 2010).

Force Majeure

7.1 Neither party is obliged to comply with a contractual obligation resulting from an agreement, with the exception of any and all payment obligations, and neither party as such shall be liable to the other party for any delay or non-performance of its obligations under an agreement, in the event of, and to the extent such delay or non-performance is due to, Force Majeure. Force Majeure are events beyond the reasonable control of a party, which occur after the date of signing of the Agreement, which were not reasonably foreseeable at the time of signing of the Agreement and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the party concerned. Events of Force Majeure shall include, but are not limited to, war, acts of government, natural disasters, fire, explosions and labor disputes.
7.2 If an event Force Majeure results in delay or non-performance of a party for a period of 3 months or longer, then the other party shall have the right to terminate the agreement forthwith and without liability towards the other party.

Warranty

8.1 Subject to the following provisions, Pearlsnow solely warrants that products delivered pursuant to an agreement shall comply with all properties and characteristics expressly agreed in writing or to be expected pursuant to the legal provisions at the time when risk passes to the customer. Pearlsnow does not undertake any warranty in respect of defects caused by improper handling, wear and tear, storage or other acts or omissions of the customer or of third parties.
8.2 Warranties should be invoked by returning the product to Pearlsnow no later than one (1) year after the date of shipping (carry-in warranty).
8.3 Expenses and/or any damage, occurred by or related to returning the products as stipulated in article 8.2, including loss of profits, will be for the account of the customer.
8.4 The fulfilment of any warranty obligations of Pearlsnow shall be dependent to the customer fully fulfilling any and all of its contractual obligations, in particular its payment obligations as agreed.

Liability

9.1 Under no circumstances will Pearlsnow be liable for damages and any costs incurred, suffered by the customer or any third party, except in case of willful conduct or gross negligence.
9.2 Any liability for Pearlsnow, insofar as this is covered by its liability insurance, is limited to the amount paid out by the insurer.
9.3 If Pearlsnow’s liability insurer does not make payment or if damage are not covered under the insurance, Pearlsnow’s liability will be limited to the invoice value of the agreement concerned.
9.4 Pearlsnow is under no circumstances liable for consequential damage, whether damage for loss of profits or any other indirect damages.
9.5 The customer indemnifies Pearlsnow against any third party claims for damages in relation to the sale, lease, rental, use and delivery of the products of Pearlsnow and/or the granting of a right to use the products of Pearlsnow, if and in so far these damages are not for Pearlsnow’s account and risk pursuant to these general terms and conditions.

Intellectual Property Rights

10.1 Under no circumstances will an agreement between Pearlsnow and the customer be construed to be a transfer by Pearlsnow of its intellectual and/or industrial property rights (hereinafter: “IP rights”) or any right of license in relation thereto, to the customer.
10.2 The customer acknowledges that all IP rights in relation to the products and information of Pearlsnow are exclusively vested in Pearlsnow. Nothing in the agreement between Pearlsnow and the customer shall be construed as limiting Pearlsnow’s rights to use its IP rights, whether or not acquired before, under or after any agreement with the customer.
10.3 Pearlsnow is exclusively entitled to register or record possible IP rights in relation to the products and information made available by Pearlsnow to the customer. Furthermore, the customer shall not derive any rights of prior use vis-à-vis Pearlsnow due to having knowledge of such possible IP rights or such information.
10.4 The customer undertakes never to challenge or assist third parties in challenging the IP rights of Pearlsnow or the validity thereof. Furthermore, the customer undertakes not to design, manufacture, import, distribute, promote or sell products when this (possibly) infringes the IP rights of Pearlsnow.
10.5 The customer will promptly inform Pearlsnow of any possible infringement on the IP rights of Pearlsnow that comes to its attention.
10.6 If a certain design (such as, but not limited to, prints/motifs, text personalization or images) is printed on the products of Pearlsnow at the request of the customer, or if the customer otherwise influences the products of Pearlsnow, the customer guarantees Pearlsnow that this does not infringe an IP right of a third party. The customer fully indemnifies Pearlsnow against third-party claims based on Pearlsnow’s use of the design (as aforementioned), or claims that are otherwise in connection with the customer's request as mentioned above, and hereby undertakes to fully indemnify and hold harmless Pearlsnow on a euro-for-euro basis for all damage suffered or incurred by Pearlsnow, liabilities (including fines and penalty payments), costs and/or expenses.
10.7 The customer gives Pearlsnow explicit permission to use imagery of the products of Pearlsnow (such as, but not limited to, images and videos) made by, made on behalf of, or used by the customer, or otherwise originates from the customer, or from the manufacturer of the customer. The customer guarantees Pearlsnow that it is qualified to grant this permission and that this does not infringe any IP rights of a third party. The customer indemnifies Pearlsnow against third-party claims based on Pearlsnow's use of the imagery in accordance with the indemnification referred to in article1 10.6.

Non-competition

11.1 During the term of the agreement between Pearlsnow and the customer and during one year after the termination or expiration thereof, the customer undertakes that it will not engage directly or indirectly in any part of the world in the manufacturing, importation, distribution, promotion or sale (either on its own account or for or on behalf of any other party) of products which are identical or similar to the products and/or designs of Pearlsnow to third parties without the prior written consent of Pearlsnow.

Applicable Law and Competent Jurisdiction

12.1 All offers, orders and/or agreements between Pearlsnow and the customer, including these general terms and conditions and all activity related thereto, shall be exclusively governed by and construed in accordance with the laws of The Netherlands.
12.2 Any dispute arising out of or in connection with any offer, order and/or agreement between Pearlsnow and the customer, shall be settled exclusively by the competent court in Amsterdam (the Netherlands), to whose exclusive jurisdiction the parties hereby irrevocably submit.

Miscellaneous

13.1 If any provision of a contract or of these General Terms and Conditions should be unenforceable in whole or in part, the remaining provisions shall remain in force. In case of (such) partial unenforceability, the contracting parties undertake to replace the unenforceable provisions with enforceable provisions that reflect the intention of the unenforceable provisions as closely as possible.
12.2 Any dispute arising out of or in connection with any offer, order and/or agreement between Pearlsnow and the customer, shall be settled exclusively by the competent court in Amsterdam (the Netherlands), to whose exclusive jurisdiction the parties hereby irrevocably submit.