Corkmodular General Terms and Conditions of Services, Sale and Delivery
_1 These Corkmodular General Terms and Conditions of Services Sale and Delivery (hereafter: “General Conditions”) apply to and form an integral part of all quotations, offers, confirmations and service or sale agreements concluded between Buyer on one hand and Corkmodular.
(i) Corkmodular established in Porto (Portugal);
The company has been established under the national laws of its respective country. Buyer in the General Conditions means: the counterparty of Corkmodular.
The application of any terms and conditions used by Buyer is expressly excluded.
2. Quotations / Agreement
_1 Unless otherwise stated, any offer or quotation by Corkmodular. is subject to contract.
_2 An agreement shall take effect once an offer accepted by Buyer has been confirmed by Corkmodular in writing. 3. Orders for goods made on demand (“specials”) cannot be cancel- led.
_3 Unless agreed otherwise all other orders may be cancelled or changed within ONE working day following the order confirmation by Corkmodular. Any other change or cancellation of an order is subject to Corkmodular’s written approval and is subject to conditions by Corkmodular.
_4 If the price, discounts or dates of delivery are based on an apparent error, Corkmodular may correct the mistakes or cancel the order.
_5 All agreements shall at all times be subject to credit approval by Corkmodular. The aforementioned does not prevent Corkmodular from requiring at any time security for compliance with Buyer’s financial obligations.
3. Price and payment
_1 All quoted prices by Corkmodular are in EURO.
_2 All prices are exclusive VAT and other government duties or taxes, as well as any costs incurred in the context of the agreement, such as administrative, transport and COD charges. These taxes and costs will be added to the sales price and form a part of the agreed invoiced amount due by Buyer.
_3 If discount is agreed for the purchase of a certain quantity or range in an order, Corkmodular is not obliged to apply the discount if fewer or different goods than those agreed are actually delivered.
_4 Unless expressly agreed otherwise, all orders are accepted on the basis of PRE-PAYMENT.
_5 Any invoice must have been paid on Corkmodular’s bank account not later than 30 (thirty) calendar days upon invoice date. In case delivery of any order agreed on a PRE-PAYMENT condition takes place within the aforementioned term, the invoiced amount must be settled at least 5 (five) calendar days prior to the scheduled delivery date. No discount is allowed for early payments.
_6 If the invoiced amount is not paid in within the payment term, then the Buyer is in default without any notice being required. In addition to any other rights and remedies Corkmodular may have under applicable law, interest will accrue on all late payments at the rate of 1% (one percent) per calendar month or part of the month or the applicable statutory rate, whichever is higher.
_7 In the event that collection is necessary all collection costs are payable by Buyer equal to 10% of the principal owed with a minimum of EUR 500 and in the US $ 650. If the debt collection involves court proceedings then all legal costs, including legal advice and representation in court and out of court, as well as all execution costs, shall be for the Buyer’s account.
_8 Even if the Buyer is of the opinion that the quality of the delivered goods or services is not in accordance with the agreed goods or services, this does not release him from the obligation to pay.
_9 If fewer goods are delivered, or received in good condition, then invoiced, and Buyer objects in good time, Buyer remains liable for the amount invoiced in respect of the goods received in undamaged condition.
_10 In the event of any default by Buyer in the payment of any amounts or charges due, Corkmodular has the right to postpone any further deliveries of any goods, without being liable for any losses by Buyer. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the agreement or at law.
4. Delivery / Transport cost or damage
_1 Corkmodular shall always use commercially reasonable efforts to deliver the services or goods within the delivery term. However, unless explicitly agreed otherwise in writing, delivery dates communicated in or acknowledged by Corkmodular are approximate dates. Corkmodular shall not be liable or be in breach of its obligations, when delivery is made sooner or later than the communicated delay.
_2 If the communicated delivery date is exceeded, Buyer is still obliged to take delivery of the goods or services, unless before delivery Buyer has put Corkmodular in default, allowingCorkmodular with a reasonable period to execute the agreement, and such term has also expired.
_3 Corkmodular may postpone any delivery in the case of production problems affecting the quantity of goods or the quality of goods produced. If such delay last longer than 3 (three) calendar months, either party may cancel the order. Corkmodular is not liable for any losses, including lost profits or savings by Buyer.
_4 Unless explicitly agreed otherwise, any delivery is made under Incoterms 2010 conditions:
(i) within the EU or EEA: DAP (Delivered At Place = delivery at premises Buyer; duties, taxes are for Buyer’s account); (ii) all other deliveries: EXW (ex works) Corkmodular-warehouse Vila Nova de Gaia, Portugal. Buyer is responsible for loading the goods onto a vehicle (even though the seller may be better places to do this); for all export procedures; for onward transport and for all costs arising after collection of goods.
_5 When Buyer fails to take delivery of the goods or services, or fails to provide the information or instructions to enable delivery it is fully liable to Corkmodular for all damages and losses suffered by Corkmodular, such as (but not limited to) transportation costs, extra storage, handling and insurance. Regarding (re-)delivery, Corkmodular may demand prior payment of all aforementioned costs.
_6 Corkmodular is entitled to partial delivery of the goods or services.
_7 Upon delivery, Buyer shall check the condition of the packaging and, if this has any defects, Buyer shall, in the presence of the carrier, open the packaging and check the goods for damage.
_8 If the goods are damaged Buyer shall refuse delivery of the goods and have the carrier take it back. It shall notify Corkmodular immediately by e-mail if possible with a picture of the condition in which the goods and packaging have been delivered.
5. Changes to specifications, complaints and returns
_1 Minor changes can occur in shape or colour depending on the material the good is made of or design of the good.
_2 Depending on the materials used for its manufacture, the original goods may change in the course of time, due to environmental influences (UV – light and other for lacquered goods, colours, fabrics and other).
_3 Corkmodular is constantly searching to improve its goods. Goods delivered may therefore technically differ from goods ordered.
_4 If the goods delivered are not, in the opinion of the Buyer, in accordance with the goods ordered or not all goods have been delivered, Buyer shall immediately notify Corkmodular by e-mail and in any event not later than the fifth working day following the delivery date. Corkmodular is not obliged to deal with complaints that have been received beyond this term. Any complaint filed by Buyer must be specified as detailed as possible with a digital photo annexed to the e-mail.
_5 If the complaint, according to Corkmodular, is justified, then Corkmodular has the choice: (i) to replace the defect or missing goods, or (ii) to credit Buyer the purchase price.
_6 Defect goods may ONLY be returned to Corkmodular at Corkmodular’s expense after Corkmodular has given its prior written approval or Corkmodular requested to return the defect goods. If the goods have not been received within 15 (fifteen) working days, Buyer is supposed to keep the goods and to have withdrawn its complaint.
_7 Extra costs for mounting, dismounting or re-installation for replaced goods or goods taken back are fully at Buyer’s charges.
6. Suspension and termination
_1 Corkmodular is entitled to suspend in whole or in part performance of its obligations under any agreement or to terminate the agreement if: (i) Buyer has failed to comply on time, in full or at all with its oblige- tions under previous agreements;
(ii) if having entered into the agreement, Corkmodular has good reasons to fear that Buyer will not (be able to) comply with its financial obligations;
(iii) Buyer failed to supply the requested security or any adequate security
_2 If, due to delay on the part of Buyer Corkmodular cannot reasonably be expected to comply with the agreement upon the terms originally agreed, then Corkmodular is entitled to cancel the agreement with immediate effect. Buyer shall be liable towards Corkmodular for any and all costs or damages, or loss in profits suffered by Corkmodular.
_3 Corkmodular is entitled to terminate the agreement if circumstances arise whose nature and extent means that Corkmodular cannot be expected according to the principles of reasonableness and fairness to perform the original agreement.
_1 For most products product specifications can be downloaded from the internet site www.corkmodular.com. a. Corkmodular warrants that under normal use and in accordance with the user – or installation instructions and taking into account the product specification the goods shall at the time of the delivery to Buyer and for a period of 12 (twelve) months from the date of delivery, be free from defects in material or workmanship and shall be conform to the product specifications. (b) The warranty sub 7 a. is considered void if the alleged defect or is found to have occurred as a result of environmental of testing circumstances, misuse, use other than normal use in respect to the specific good, neglect, improper installation, accident, improper storage, or repairs or modifications made without the prior written express consent of Corkmodular.
8. Limitation of liability
_1 Without prejudice to any mandatory legal rules, the following applies.
(i) Regarding goods delivered by Corkmodular:
(a) Corkmodular shall not be liable for any lost profits or savings, loss of reputation or goodwill, indirect or incidental or consequential damages arising out or in connection with the sale of the good(s) or the use of these whether or not any claim is based on tort, warranty, contract or any other legal possibility, even in the circumstances that Corkmodular has been advised of any risks. (b) Corkmodular’s aggregate and cumulative liability shall not exceed an amount equal to 50% of the purchase value aggregate and cumulative.
(ii) Regarding services rendered by Corkmodular: Corkmodular declines any liability for damages as a result of the use of services rendered by Corkmodular
_2 At all times Corkmodular’s liability shall at all times be limited to the maximum amount covered by Corkmodular’s insurance for the type of damages.
9. Force majeure
_1 In the event of force majeure, the obligations of either party are suspended until the situation of force majeure has ended. If the force majeure lasts longer than three (3) calendar months, then either party is entitled to terminate the agreement without any liability to compensate the other party.
_2. ‘Force majeure’ includes, in addition to the definition by law, import and export bans or controls by, or due to, any government or power, the failure of suppliers or service providers of Corkmodular to deliver on time or at all, suspension of work by, or a high amount of sick leave amongst, the employees of Corkmodular or its suppliers.
_3 Corkmodular is also entitled to rely on force majeure if the situation of force majeure begins after Corkmodular should have fulfilled its obligations.
_4 Insofar as at the time the situation of force majeure commences Corkmodular has partly fulfilled its obligations under the agreement or is still able to do so, then Corkmodular is entitled to invoice for all the parts of the agreement it has complied with or will comply with. In such a case Buyer is obliged to pay as if it were a separate agreement.
10. Retention of title
_1 All goods delivered remain the property of Corkmodular until Buyer has fulfilled its obligations to Corkmodular in full. If any invoice remains unpaid, Corkmodular’s retention of title shall also cover all goods previously delivered which have been paid for by Buyer.
_2 Goods that are subject to retention of title may only be sold in the context of normal business practice and may not be pledged or otherwise encumber the goods subject to retention of title.
_3 If any attachment is levied by a third party upon the goods subject to retention of title, then Buyer shall inform the third party levying the attachment of the retention of title and notify Corkmodular of this immediately.
_4 Buyer undertakes to keep insured the goods subject to the retention of title against fire, explosion, or water damage, as well as against theft. On demand by Corkmodular, Buyer shall provide a copy of the insurance policy, as well as ensure that the rights under the insurance policy covering the goods subject to the retention of title shall be transferred to Corkmodular or that Corkmodular is subrogated in these rights.
11. Intellectual property rights and copyrights
_1 Corkmodular retains the rights and powers it accrues on the basis of the Copyright Act and other intellectual and industrial legislation and regulations relating to all the goods or services it supplies, insofar as these rights do not belong to any third party.
_2 Buyer may not have goods supplied by Corkmodular copied elsewhere, or manufacture imitations thereof that differ in only minor details from the goods supplied, or become directly or directly involved in this.
_3 Copyright or any other intellectual property of sketches, designs or models in whatever phase of elaboration these are and have been delivered to or shown to Buyer, remain the full property of Corkmodular and may not be used otherwise that agreed in writing and solely for that specific purpose. Any permitted use does not mean that intellectual property rights have been transferred.
_4 Without a prior written permission by Corkmodular, Buyer is not allowed to copy pictures, designs, brochures, DVD’s and other material or to use the information on its internet site. Permission by Corkmodular does not affect the rights of the author of the information provided.
12. Applicable law / disputes
_1 All agreements are subject to the law of the Portugals. The court with exclusive jurisdiction is that covering the area where Corkmodular has its registered office at the time a dispute arises. This also applies if the goods have been delivered in part or entirely abroad or if Buyer has its registered office or is domiciled abroad, unless mandatory law provides otherwise.
_2 The parties shall always endeavour to resolve a dispute amicably, before any application is made by either party to the court.
_3 The terms of the Vienna Sales Convention shall not apply.
13. Final terms
_1 In the event that these general terms and conditions are available in a language other than English, and there is any dispute as to interpretation or explanation, the English text of these general terms and conditions shall prevail. 2. The version that is binding is the latest version published on www.moco.corkmodular.com/generalconditions at the time the agreement is entered into.
_2 If any provisions in these general terms and conditions are void or revoked by the courts, the remaining provisions remain in force. Corkmodular and Buyer shall negotiate substitute provisions that are in line with the original provisions in terms of purpose and scope.
Porto. Version May 2018.