General Terms of Sale and Delivery

GENERAL TERMS OF SALE AND DELIVERY OF PODOBRACE (version September 2022)

Table of contents:

• Article 1 — Definitions
• Article 2 — Applicability
• Article 3 — Offer and conclusion of agreement
• Article 4 — Delivery and execution period
• Article 5 — Complaints and warranty
• Article 6 — Payment, interest and costs
• Article 7 — Retention of title
• Article 8 — Price increase
• Article 9 — Liability
• Article 10 — Expiry and termination of agreement
• Article 11 — Force majeure
• Article 12 — Cancellation and suspension
• Article 13 — Translation
• Article 14 — Final provisions

Article 1 — Definitions

In these general terms and conditions, the following definitions are used in the following sense, unless the contrary follows from the nature or tenor of the clauses.

1. Podobrace: the private company with limited liability Podobrace B.V., having its registered office and place of business in (1131 JW) Volendam at the Marconistraat 9, the user of these general terms and conditions, registered in the trade register under chamber of commerce number 69003211.
2. Client: the natural person acting in the exercise of a profession or business, or legal person with whom Podobrace has concluded or intends to conclude an agreement.
3. Agreement: any agreement entered into between Podobrace and the client whereby Podobrace has undertaken towards the client to deliver products.
4. Parties: Podobrace and client if an agreement has been concluded between them.
5. written: both traditional written communication and digital communication to be stored on a durable medium, such as e-mail.

Article 2 — Applicability

1. These general conditions apply to all legal relationships between Podobrace and client, insofar as the parties have not deviated from them in writing.
2. The general conditions can also be invoked by that natural person and/or legal entity directly or indirectly connected to Podobrace and/or involved in any way in the implementation of the agreement by or on behalf of Podobrace.
3. General or other terms and conditions of the client shall not apply, unless expressly agreed otherwise in writing. Any reference by the Client to his conditions is expressly rejected. If, in any dispute, it should nevertheless be determined that the conditions of the client are also applicable, the conditions of Podobrace shall prevail in case of conflict with one or more provisions included in those general conditions.
4. If any provision of these general conditions is invalid, the remaining provisions of these conditions shall continue to apply. In such a case, Podobrace shall consult with the client in order to arrive at a substitute provision. In doing so, the purpose and meaning of the original provision will be taken into account as much as possible.
5. In case the contents of agreements made in writing between Podobrace and client deviate from what is stipulated in these general conditions, the agreements made in writing shall prevail.

Article 3 — Offer and conclusion of agreement

1. All offers made by Podobrace are one and indivisible, completely non-binding and are valid for 30 days, after the date, unless otherwise indicated in writing by Podobrace.
2. The prices stated in an offer are exclusive of VAT and any costs (e.g. shipping, transport and administration costs), unless otherwise indicated. In the case of composite quotations, there is no obligation to deliver a part at the quoted price for the part, unless expressly agreed otherwise in writing.
3. The offer and the prices stated therein do not automatically apply to repeat orders.
4. Models, examples, specifications of colours, dimensions, weights and/or other descriptions of the products shown serve only as an indication without any rights being derived from them. Any deviations accepted in the branch are no shortcomings on the part of Podobrace and also do not justify any reliance on the guarantee provided.
5. Podobrace is only bound to an order given by the client if and after the order has been confirmed by Podobrace in writing or after Podobrace has started the actual implementation of the order.
6. The contents of (digital) price lists, leaflets, printed matter and the like of Podobrace shall not bind Podobrace, unless that content is expressly referred to in the agreement. Any changed price listing in price lists of Podobrace shall render the preceding inoperative.

Article 4 — Delivery and execution period

1. An agreed delivery and/or completion period shall not be a deadline, unless agreed otherwise in writing. In case of late delivery/fulfilment, the client shall give Podobrace notice of default in writing, including a reasonable period for fulfilment.
2. Unless otherwise agreed in writing, delivery shall be made by the actual transfer of the goods.
3. Unless otherwise agreed in writing, delivery shall be 'free delivery address', provided that the place of delivery is accessible via a paved road and is situated on the ground floor and without prejudice to the provisions of Article 4 paragraph 7 of these general terms and conditions.
4. An agreed (delivery) period shall only commence at the time when the client has provided Podobrace with all the information necessary for the delivery or that information which the client should reasonably understand to be necessary within the framework of the implementation of the agreement, and Podobrace has received any agreed (advance) payment from the client. If this causes a delay, the (delivery) period shall be extended proportionately.
5. If changes in the order to Podobrace result in the time required to execute the agreement being longer, the delivery time shall be extended by this additional time required.

Article 5 — Complaints and warranty

1. Client shall examine the goods (or have them examined) upon delivery - as soon as possible thereafter. In doing so, the principal shall check whether the delivered goods comply with the agreement, namely: - whether the correct goods have been delivered, and - whether the goods delivered correspond in quantity (e.g. the number and quantities) to what has been agreed, and - whether the delivered goods meet the agreed quality requirements or - if these are lacking - the requirements that may be set for normal use and/or commercial purposes.
2. On penalty of lapse of any guarantee by or liability of Podobrace, the client shall notify Podobrace in writing of any defects within seven (7) days after delivery. If the client does not complain within this period, he shall be deemed to have accepted the delivered goods.
3. In case of complaints, purchased goods can only be returned by the client after agreement has been reached with Podobrace. Podobrace can attach conditions to the return of purchased goods, including the way in which the return must take place. The goods must also be returned in the original packaging or packaging materials. The goods must belong to the stock range of Podobrace. Goods specially ordered by Podobrace for the client will in no case be taken back. Goods should be returned undamaged and in the original packaging.
4. The client shall in no case be able to enforce any claim against Podobrace after he has taken the delivered goods into use, processed or treated them or had them processed or processed, there are imperfections in or properties of goods manufactured from natural materials, if these imperfections or properties are inherent to the nature of the materials, discolourations and slight mutual colour deviations, as well as a situation as referred to in paragraph 7 of this Article 5. The client is responsible for the consequences of unsoundness and lack of clarity of models and/or data provided by him to Podobrace that are important for a correct implementation of the agreement.
5. Subject to the provisions of these general terms and conditions, Podobrace shall only provide warranty in accordance with the warranty provisions of the supplying manufacturer/producer. The guarantee issued by the manufacturer or producer shall apply between the parties in the same way.
6. The guarantee only includes the repair or replacement, at Podobrace's discretion, of (parts of) the delivered goods during the guarantee period that show defects as a result of design, material and/or manufacturing faults, to be carried out during office hours. All replaced goods and parts thereof shall become the property of Podobrace.
7. The guarantee does not apply if the delivered goods have been damaged as a result of an accident, abuse, improper/incompetent use and/or wrong application(s) and/or use contrary to the purpose of the delivered goods and/or use contrary to the instructions, advice, directions for use, leaflet etc. provided by or on behalf of Podobrace, and/or is the result of improper storage/storage or maintenance of the goods and/or as a result of (repair) work not carried out by Podobrace on the delivered goods and/or if the damage is the result of incorrect treatment in any other way and/or if the damage was caused by errors or incompleteness in the information provided by or on behalf of the client to Podobrace. The guarantee also does not apply if the client has not, not in time and/or not completely fulfilled one or more of his obligations towards Podobrace.
8. Even if the client complains in time, his obligation to pay and take delivery of orders made shall remain. Client shall not be entitled to delay, withhold or refuse payment based on a claim under the guarantee, otherwise client shall not be entitled to claim under the guarantee.
9. Except for the guarantee described above, Podobrace does not provide any guarantee on the delivered goods.

Article 6 — Payment, interest and costs

1. Payment shall be made in the manner indicated by Podobrace on the invoice or otherwise and within 30 days of the invoice date, unless expressly agreed otherwise in writing. This is a fatal term in the sense of the law. After the expiry of this payment term, without full payment having taken place, the client is immediately in default. In addition, the correctness of the invoice is established if the customer has not objected to the invoice within the aforementioned payment term.
2. If an invoice is not or not fully paid after expiry of the period referred to in the previous paragraph, or no automatic collection could take place, the client owes Podobrace the statutory commercial interest, to be calculated cumulatively on the principal sum. Parts of a month shall be counted as full months.
3. All costs, both judicial and extrajudicial, incurred by Podobrace to enforce its rights, shall be borne by the client. This also includes all costs, by whatever name, incurred by Podobrace as plaintiff/petitioner or defendant/defendant in or for the benefit of possible indemnification proceedings. These costs are set at 15% of the amount owed by the client, with a minimum of € 250,-. Podobrace expressly reserves the right to claim more costs if these were actually incurred by it.
4. For the calculation of the costs due as referred to above, Podobrace may increase the principal amount of the claim after expiry of one (1) year with the default interest accrued in that year.
5. If client is in default, Podobrace is entitled to suspend its obligations from the agreement in whole or in part, or to dissolve the agreement in whole or in part without further notice of default by a written statement.
6. In case of liquidation, bankruptcy (or an application therefor) or suspension of payment (or an application therefor) of the client, the client's obligations will be immediately due and payable.
7. Payment by the client shall be made without discount, deduction and/or set-off.
8. Payments made by the client shall always first serve to reduce all costs due, then to reduce the interest due, then to reduce the longest outstanding payable invoices, even if the client states that the payment relates to a later invoice, and then to reduce the current interest.
9. Podobrace expressly reserves the right at all times to require advance payment, cash payment on delivery and/or further securities prior to production and/or delivery, if it considers this necessary. Podobrace shall not be obliged to (further) fulfil the agreement as long as the client is in default of payment of the advance payment and/or requested security. In case Podobrace requires a down payment, it shall amount to at least 30% of the total amount due for the order(s). The remainder of the amount due to Podobrace shall in any case have to be paid before the order is shipped and/or otherwise transported to the agreed delivery address.

Article 7 — Retention of title

1. All goods delivered by Podobrace shall remain the property of Podobrace until client has paid all that he owes to Podobrace, this expressly includes invoices relating to other deliveries and Podobrace's claim for compensation for damages suffered by Podobrace and/or any claim(s) of Podobrace due to non-fulfilment by client of one or more of his obligations under the agreement. This retention of title extends to all delivered goods, not only as security for payment of the purchase price of the delivered goods but also for (additional) services provided. In a situation as referred to here, Podobrace is thus entitled to take back its (paid) goods as well.
2. Despite Podobrace's retention of title, the delivered goods shall be held by the client for his own account and risk.
3. Goods delivered by Podobrace that are subject to retention of title pursuant to paragraph 1 may only be resold in the context of normal business operations, provided that the client has also stipulated retention of title on the delivered goods with his buyer(s). In case of (an application for) bankruptcy, (an application for) liquidation or (an application for) suspension of payments of the customer, reselling within the framework of normal business operations is also not (or no longer) allowed.
4. As long as the goods are subject to retention of title, the principal shall not be authorised to pledge the goods and/or place them under the effective control of a financier and/or encumber them in any other way or otherwise serve as security for a claim of (a) third party (parties) against the principal.
5. If identical, non-indivisible goods are delivered, the goods belonging to the oldest invoices shall be deemed to have been sold first by the customer. Reservation of title shall therefore always apply to all goods delivered which are still in the principal's stock, shop, household effects or storage (regardless of the location) when reservation of title is invoked.
6. If the client does not fulfil his obligations, if Podobrace invokes its reservation of title and/or if there is a wellfounded fear that the client will not, not in time and/or not completely fulfil the obligation(s) resting on him, Podobrace shall be entitled to remove or have removed from the client or from third parties holding the goods for the client the delivered goods on which the reservation of title referred to in paragraph 1 rests. The client is obliged to give his full and unconditional cooperation to this end on penalty of a fine of 10% of the amount he owes per day or part of the day. In that case, Podobrace shall also claim compensation for all damage, direct and indirect, resulting from this. This shall not detract from Podobrace's right to dissolve the agreement immediately, without further notice of default.
7. If third parties wish to establish or assert any right to the goods delivered under retention of title, the client is obliged to inform Podobrace as soon as can reasonably be expected.
8. The Client must keep the goods carefully and as identifiable property of Podobrace as long as they are subject to retention of title.
9. Client shall provide such business or contents insurance that the goods delivered under retention of title are at all times co-insured and remain insured against fire, explosion and water damage as well as against theft and shall allow Podobrace inspection of the insurance policy and the corresponding premium payment receipts on first request.

Article 8 — Price increase

1. If Podobrace agrees a certain price with client, Podobrace shall nevertheless be entitled to increase the price, whether or not as a result of changes in laws and regulations, government measures, currency fluctuations or changes in the prices of the required materials and/or raw materials. Podobrace may thus charge Client the price applicable at the time of delivery.

Article 9 — Liability

1. Outside the explicitly agreed or written guarantees given by Podobrace, Podobrace does not accept any liability.
2. Without prejudice to the provisions in the previous paragraph, Podobrace shall only be liable for direct damage. Any liability of Podobrace for consequential damage, such as, but not exclusively, trading loss, loss of profits and/or losses suffered, damage caused by delay and/or personal or bodily injury, is expressly excluded.
3. Client must take all measures necessary to prevent or limit damage.
4. If Podobrace is liable for any damage suffered by the client, Podobrace's obligation to pay compensation shall always be limited to a maximum of the amount paid out by Podobrace's insurer in the relevant case. If the insurer does not pay out, or the damage is not covered by an insurance concluded by Podobrace, Podobrace's obligation to pay compensation is limited to a maximum of the net invoice value of the agreement concerned, or at least to a maximum of the invoice value of the part of the agreement to which the liability relates.
5. Podobrace accepts no responsibility whatsoever for defects caused by or arising to the delivered goods through the fault and/or actions of Client and/or third party/parties, or through external causes.
6. Advice, whether or not requested by the client, is provided by Podobrace to the best of its knowledge and entirely in good faith, but it expressly does not accept any liability for loss or damage, directly or indirectly resulting from the content of the advice it provides.
7. Podobrace is not liable for printing, writing and/or typing errors and/or lack of clarity in offers, order confirmations and/or prospectuses, nor for the consequences thereof. In the event of a difference in interpretation of offers, order confirmations and/or prospectuses, Podobrace's interpretation shall be considered fixed and binding.
8. Podobrace is not liable and the client cannot invoke the applicable warranty if the damage was caused by a situation as referred to in Article 5 paragraphs 4 and 7 of these general conditions. In the cases referred to in the aforementioned article 5 paragraphs 4 and 7, the client is fully liable for the resulting damage and indemnifies Podobrace fully, irrevocably and unconditionally for any claims by third parties in this regard.
9. Any liability of Podobrace towards the client shall lapse six months after the goods have been delivered or made available to the client according to the agreement, unless the client has previously filed a legal claim against Podobrace.
10. The limitations of liability included in these conditions do not apply if the damage is due to intent or gross negligence of Podobrace.

Article 10 — Expiry and termination of agreement

1. The claims of Podobrace on client shall be immediately due and payable in, inter alia, the following cases:

• if after the conclusion of the agreement circumstances come to Podobrace's knowledge that give Podobrace good reason to fear that client will not fulfil his obligations;
• in case of (an application for) bankruptcy, (an application for) suspension of payments or (an application for) liquidation of (the company of) the principal;
• if Podobrace has asked client to provide security for the fulfilment of the obligations resting on client and this security is not provided or insufficient;
• if client is affected by foreclosure;
• if the client is otherwise in default and fails to fulfil one or more of its obligations under the agreement.

In said cases, Podobrace is entitled to suspend the further implementation of the agreement or to proceed to (full or partial) dissolution of the agreement, all this subject to the obligation of the client to compensate the damage suffered by Podobrace and without prejudice to the other (legal) rights to which Podobrace is entitled.

2. The right of Podobrace mentioned in paragraph 1 to dissolve the agreement shall not apply if the shortcoming in view of its special nature or minor importance does not justify this dissolution with its consequences.

3. If circumstances arise with regard to persons and/or material and/or equipment which Podobrace uses or tends to use in the implementation of the agreement, which are of such a nature that the implementation of the agreement becomes impossible or so difficult and/or disproportionately expensive that fulfilment of the agreement can no longer reasonably be required, Podobrace is entitled to dissolve the agreement (in full or in part) without being obliged to pay any compensation.

Article 11 — Force majeure

1. In addition to what is understood by force majeure in the law and jurisprudence, force majeure means any circumstance independent of the will of Podobrace, as a result of which the fulfilment of its obligations towards the client is fully or partially impeded or as a result of which the fulfilment of its obligations cannot reasonably be required from Podobrace, irrespective of whether this circumstance could have been foreseen at the time of concluding the agreement. Force majeure shall further mean in any case, but not exclusively: incapacity for work on the part of the natural person carrying out the assignment for or on behalf of Podobrace, the outbreak of an epidemic or pandemic and the government measures taken as a result thereof, which hinder, limit, frustrate or otherwise make the performance of the assignment (wholly or partly) impossible, loss of data as a result of computer failure, virus infection or computer hacking by third parties, and other disasters (including any natural Page 5 or 5 disasters and/or other (extreme) weather conditions) that (wholly or partly) prevent or limit the business operations of Podobrace and/or its supplier(s).
2. In the event Podobrace is hindered by force majeure to carry out the work in whole or in part, it shall be entitled, without judicial intervention at its discretion, to suspend the performance of the work or to consider the agreement as dissolved in whole or in part, without Podobrace being obliged to compensate any damage suffered by the client.
3. In case Podobrace has partially carried out the assignment at the time of the force majeure, Podobrace shall be entitled to charge the client for this work and the client shall be obliged to pay for it.

Article 12 — Cancellation and suspension

1. In case the client wishes to cancel the agreement prior to or during the performance, Podobrace shall be entitled to a (fixed) (compensation) for all costs incurred and the damage suffered by the cancellation, including loss of profit. At the discretion of Podobrace and depending on the deliveries already made, this (compensation) amounts to 20% - 100% of the agreed price.
2. Client shall fully, irrevocably and unconditionally indemnify Podobrace for all third party claims resulting from the cancellation.
3. Podobrace shall be free to set off the (damage) compensation as referred to in paragraph 1 of this article against all amounts paid by the client and any counterclaims of the client.
4. In case of suspension of the delivery(s) at the client's request, the payment for all deliveries made is immediately due and payable and Podobrace may charge it to the client. This also applies to all costs incurred as a result of the suspension.
5. All costs arising for Podobrace from the resumption of the delivery(s) shall be entirely for the account of the client. If the performance of the agreement is not resumed after suspension as a result of a circumstance situated on the part of the client, Podobrace shall be entitled to dissolve the agreement(s) in whole or in part. This makes client liable for damages.

Article 13 — Translations

1. In case of differences between translations of these general terms and conditions and the Dutch text of the terms and conditions, the Dutch text shall prevail.

Article 14 — Final provisions

1. Any agreement between Podobrace and the client shall be exclusively governed by Dutch law.
2. The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
3. Deviations from and/or additions to these general terms and conditions are only binding for Podobrace insofar as they have been expressly agreed in writing between the parties.
4. Podobrace is entitled to unilaterally amend the contents of these general conditions in the interim. In the event Podobrace proceeds to do so, it shall notify the client simultaneously with the modified general conditions. The client is entitled to object to the applicability of the modified conditions within 30 days from the date he was informed of the changes. In that case, parties shall consult on the contents of the applicable general terms and conditions. If the client does not object to the amended content of the general conditions, they shall govern the agreements made between the parties from the date mentioned by Podobrace.
5. The parties will not resort to court until after they have made efforts to settle the dispute by mutual agreement.
6. Contrary to the legal rules for the competence of the civil court, any dispute between the client and Podobrace shall be settled by the competent court of the District Court of Amsterdam. However, Podobrace remains competent to submit a dispute to the court with jurisdiction according to the law.