General terms and conditions OF SALES AND DELIVERY
Version March 2024

These are the General Terms and Conditions of Sale and Delivery (“Terms”) of PodoPrinter B.V. (“PodoPrinter”), a limited liability company incorporated under the laws of the Netherlands, registered in the Dutch Chamber of Commerce under number 75275333, having its registered address at Zwaanstraat 31F, 5651 CA Eindhoven, the Netherlands.

These Terms constitute the general terms and conditions governing any Offer and Agreement between PodoPrinter and Buyer relating to the sale by PodoPrinter and purchase by Buyer of Products or Services and/or the licensing of Software. Any terms and conditions set forth on any document issued by Buyer are hereby explicitly rejected by PodoPrinter and any such document shall be wholly inapplicable to any Offer, Agreement, sale or licensing made by PodoPrinter and not be binding in any way on PodoPrinter.

1.        Definitions

Agreement           the agreement between PodoPrinter and Buyer regarding the delivery of the Product, Software and/or Services by PodoPrinter of which these Terms form an inseparable part. This includes all accepted Purchase Orders.

Buyer                 PodoPrinter’s contracting party that desires to purchase or purchases Products, Software and/or Services from PodoPrinter, or that desires to acquire Products, Software and/or Services under a lease agreement.

Terms                these Terms of sales and delivery which govern all Offers, Purchase Orders and Agreements of whatever nature between PodoPrinter and Buyer.

IP rights              all intellectual and industrial property rights including, but not limited to, patents, designer rights, copyrights and other forms of protection afforded by law to inventors, designers or technical information as well as applications for any such rights vested in the name of one of the Parties.

Offer                  all quotations and offers by PodoPrinter to Buyer.

Parties                PodoPrinter and Buyer.

Product(s)           the good(s) including embedded firmware if not excluded in the Agreement, (to be) supplied by PodoPrinter under these Terms of Sale and Delivery.

Purchase Order     a request from a Buyer to PodoPrinter for the delivery of Products, Software and/or Services.

Services              services such as development, integration, training or support, provided by PodoPrinter in connection with Products and/or Software.

Software             computer programs licensed by PodoPrinter for use in connection with the Products, excluding firmware embedded in Products.

Writing               written communication including emails when send to an email address which is regularly used for conversations between Parties.

2.        Applicability, Offers and Agreements

2.1 Unless explicitly agreed upon otherwise in Writing, these Terms apply to all legal relationships in which PodoPrinter acts as the vendor and/or supplier of Products and/or Services within the context of its business activities. In case of lease, PodoPrinter or its designated legal entity will act as lessor and Buyer will act as lessee and will agree on specific additional lease conditions in a lease agreement.
2.2 In addition to these Terms, other (additional) terms and conditions may apply to certain Services and/or Products. Should there be deviations between these Terms and the additional terms and conditions, the additional terms and conditions will prevail, unless explicitly stated otherwise.
2.3 An Agreement between PodoPrinter and Buyer is only concluded once PodoPrinter has accepted a Purchase Order from Buyer in Writing. In principle, PodoPrinter accepts a Buyer’s Purchase Order by signing a written document in which the Purchase Order, including the expected delivery period, is confirmed.
2.4 Based on mutual consultation, the Parties may amend the content of a concluded Agreement. An amendment of the Agreement is only binding for PodoPrinter once it has agreed to the amendment in Writing.
2.5 Offers are open for acceptance within the period stated by PodoPrinter in the Offer or, when no period is stated, within two (2) weeks from the date of the Offer, but any Offer may be withdrawn or revoked by PodoPrinter at any time prior to PodoPrinter’s receipt of Buyer’s acceptance related thereto.
2.6 For goods or work for which no Offer or Purchase Order is sent based on their nature and scale, the invoice and/or delivery slip is likewise considered to be an Agreement, which is also deemed to correctly and completely reflect the Agreement.
2.7 Buyer shall be responsible for compliance with all applicable laws, regulations and orders, including any and all national and international sanctions, import and export controls and bans, anti-bribery, anti-slavery, data privacy, environmental, health, safety, child welfare, wage and hour, labour and other workplace laws and regulations in all jurisdictions involved in the sale and purchase of the Products. Buyer shall also be responsible for obtaining all permits and approvals as necessary in connection with the use of the Products and the Software, including import and export licenses and other permits or approvals required. Buyer shall provide PodoPrinter with applicable export classification numbers related to the Products and Software, complete end use statements reasonably requested by PodoPrinter for Products and/or the Software. Buyer shall provide PodoPrinter with applicable export classification numbers related to any IP rights or other information or materials provided by PodoPrinter, and reasonably assist PodoPrinter with any export licenses required by the European Union as it relates to the Products and/or the Software, IP rights, information or materials.
2.8 Buyer is not entitled to add or remove any item to a Purchase Order that has already been placed. Purchase Orders cannot be combined before or after they are placed, unless agreed upon in Writing by PodoPrinter.
2.9 Information, images, oral announcements, records, etc. regarding all offers and the most relevant characteristics of the Products, Software or Services that are provided by telephone or e-mail are always as accurate as possible. PodoPrinter does not guarantee that all offers and Products completely correspond to the information provided. Deviations can never lead to reimbursement or dissolvement of the Agreement.

3. Prices and Payment

3.1 Prices in any Offer, Purchase Orders or Agreement are in Euro’s unless explicitly indicated or agreed upon otherwise and do not include any freight, insurance and delivery charges or any taxes, duties, tariffs, or similar levies, now or hereafter enacted, applicable to the Products, Software, or Services.
3.2 Where it is necessary or desirable to convert any sum from one currency to another, this is at the sole risk of Buyer. This means among others that Buyer shall bear all exchange risks, reasonably incurred losses, commission, fees and charges which may thereby arise.
3.3 Errors in any Offer can be corrected by PodoPrinter even after concluding the Agreement.
3.4 In the event of an amendment to the Agreement implemented at Buyer’s request, PodoPrinter is entitled to charge any additional costs caused by the amendment to Buyer.
3.5 At any time prior to the delivery of Products, Software, or Services, PodoPrinter reserves the right to vary the price to take account of any increase in the cost of Products, Software, or Services which is beyond PodoPrinter’s control, including but not limited to, increases in materials, labour and other manufacturing costs, delivery charges, increases in taxes, duties, tariffs and foreign exchange fluctuations.
3.6 Unless agreed otherwise 50% of the price of the total Purchase Order is paid upon signing the Agreement between Parties or when a Purchase Order is accepted, the remaining 50% shall be invoiced upon shipment of the Product. Services shall be invoiced in accordance with article 7 of this Agreement.
3.7 All payments to be made by Buyer must be received by PodoPrinter within the term stated on the invoice. Unless the Parties have made deviating arrangements in Writing, the term of payment will be twenty one (21) days after the invoice date.
3.8 Buyer will take responsibility for timely payment of the amounts due by transferring these to PodoPrinter’s bank account as indicated on the invoice.
3.9 If Buyer has any objections to the invoice, Buyer must send the Written and documented objections to PodoPrinter within eight (8) days of receipt of the invoice.
3.10 Buyer may not set off any amounts owed to PodoPrinter against any claim Buyer might have against PodoPrinter.
3.11 PodoPrinter may require security for payment of Buyer’s payment obligations.
3.12 If Buyer fails to pay within the agreed term, Buyer will be in default by operation of law without a notification of default being required. From the moment that Buyer is in default, Buyer will owe compensation for interest of 1,5% per month or part thereof by which the due date is exceeded.
3.13 If the unpaid invoice is not paid in full on the due date, all judicial and extrajudicial costs incurred for collection will be borne by Buyer. The extrajudicial costs amount to fifteen percent (15%) of the unpaid amount due with a minimum of EUR 150 (hundred fifty Euro).
3.14 In the event of non-payment, after notifying Buyer, PodoPrinter may suspend performance of its contractual obligations until PodoPrinter has received full payment. This right shall be in addition to, and not in lieu of, any other rights and remedies available under these Terms or at law or in equity.
3.15 Buyer irrevocably authorizes PodoPrinter to pledge or assign PodoPrinter’s existing and future claims against Buyer to third parties as security.
3.16 In the event that a Product, Software or Service is mistakenly listed at an incorrect price, PodoPrinter reserves the right to refuse or cancel any Purchase Orders placed for the Product, Software or Service listed at the incorrect price.

4. Delivery

4.1 PodoPrinter aims to deliver the Products within thirty (30) days after sending the order confirmation, or, when a down payment is agreed upon, within thirty (30) days after receiving the down payment. An agreed delivery term is always indicative and never a deadline, nor can any rights be derived from exceeding the agreed delivery term. PodoPrinter can announce information regarding delivery terms on its website or by other written means. Such information is always indicative.
4.2 In the exceptional case that items cannot be shipped in the desired period, PodoPrinter will contact Buyer to try to arrive at an agreement on how to process, including the option to cancel the Purchase Order.
4.3 Unless agreed upon otherwise, the delivery condition shall be Ex Works (EXW – Incoterms 2020) PodoPrinter’s warehouse in the Netherlands. PodoPrinter shall not be responsible for loading the Product on the vehicle provided by Buyer or for clearing the Products for export, unless otherwise agreed. Buyer bears all costs and risks involved in taking the Product from the ‘PodoPrinter’s premises to the desired destination.
4.4 When Parties agree that PodoPrinter arranges any additional services, like shipping, packaging, export clearance and insurance, these services will be invoiced separately to Buyer. Furthermore, Buyer shall indemnify PodoPrinter for the costs of recovery and recycling of any transportation or packaging of Products which it does not choose to dispose of itself. This indemnification obligation shall also apply where PodoPrinter is under a statutory obligation to recover and/or recycle packaging.
4.5 If PodoPrinter undertakes at Buyer’s request to ship the Product to its destination, the risk will transfer to Buyer upon transfer of the Product to the first carrier, even if the transport documents indicate otherwise. If requested in Writing by Buyer, PodoPrinter will arrange for insurance on the Product while in transit at Buyer’s additional expense.
4.6 Delivery dates communicated or acknowledged by PodoPrinter are approximate only, and PodoPrinter shall not be liable for, nor shall PodoPrinter be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. PodoPrinter will use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the agreed delivery date.
4.7 The term of shipment or delivery indicated commences once (all of the following conditions have been met):
• the Agreement has been concluded;
• all official formalities have been met;
• the payments due from Buyer upon conclusion of the Agreement have been made; and
• all other terms and conditions have been met.
4.8 With the exception of intent or gross negligence on the part of PodoPrinter, PodoPrinter is not liable for the consequences of exceeding the term of delivery or shipment indicated.
4.9 If PodoPrinter experiences Product shortages, or production is curtailed for any reason, PodoPrinter may allocate its available production and Products, in its sole discretion, among its customers and as a result may sell and deliver to Buyer fewer Products than specified in Offer or Agreement, without liability to Buyer, as the case may be.

5. Inspection, acceptance and complaints

5.1 Buyer shall inspect the Products on arrival at the delivery destination and shall within seven (7) calendar days inform PodoPrinter in Writing of:
i. any damage to the Products;
ii. any discrepancy between the Products and PodoPrinter’s specification which is, or should be, apparent from inspection; or
iii. any discrepancy between the quantity of Products received and the quantity specified on the paperwork accompanying the delivery,
otherwise the Product will be deemed to be accepted by Buyer.
5.2 Should a Product(s) delivered by PodoPrinter fail to comply with the acceptance criteria, Buyer must notify PodoPrinter of this in Writing. This notification must contain a clear description of Buyer’s complaint. Buyer shall give PodoPrinter reasonable opportunity to inspect the Products concerned and propose a solution in case of actual nonconformity. In case damage has been inflicted to the Products, Buyer will take all possible provisions to obtain compensation from the transporter.
5.3 PodoPrinter does not take back any assembled machine or opened kit. Products in a total value below EUR 50 cannot be returned to PodoPrinter.
5.4 Operational use or processing of the Product shall be deemed to be an unconditional acceptance of the Product and a waiver of all claims in respect of the Product. After the Product is accepted in accordance with this article and if the warranty still applies, PodoPrinter will only be obliged to deal with any complaints if PodoPrinter receives such complaints as soon as possible but no later than eight (8) days after the discovery of any fault by Buyer or after Buyer should reasonably have discovered the fault. Irrespective of the eight-day period, Buyer must always complain within fifteen (15) days after the invoice date. PodoPrinter will extend the time period for filing a complaint upon showing of good cause.
5.5 In the event Buyer contests that Products were delivered, Buyer must request a proof of delivery from PodoPrinter within ninety (90) days of the date of PodoPrinter’s invoice, otherwise delivery shall be deemed completed. Buyer will give PodoPrinter Written notice of failure to deliver and thirty (30) days within which to cure. If PodoPrinter does not cure within thirty (30) days, Buyer’s sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.

6. Warranty

6.1 PodoPrinter warrants within the limits of the applicable statutory law and the period as defined in the Agreement, that the Products at the time of delivery and subjected to normal use are free of defects and the use of the Products by Buyer in accordance with this Agreement shall not infringe the IP rights of any third parties. All other statutory, implied or other warranties are hereby excluded.
6.2 In the event of any defect of a Product, including material deviation from agreed specifications and/or any violation of rights of third parties (collectively “Defects”) Buyer may, within the warranty period, exercise the agreed remedies for repair, return or replacement of the Products.
6.3 Except as provided in subsection 6.4 below, Products (excluding embedded software) are warranted for a period of one (1) year from date of delivery to Buyer. Filament performance (e.g. quality insole production) is guaranteed one (1) year after production date of filament. Third party Software shall, insofar possible, be warranted as indicated by the third party Software provider which warranty shall be passed on “as is” to Buyer.
6.4 The following Products, Software and Services are provided “as is” and are not covered by the above warranties: (i) development Products (including without limitation prototypes and pre-production samples, whether or not paid for by Buyer), (ii) experimental Products; (iii) beta testing Products, (iv) reference designs, (v) Software, (vi) Services, and (vii) information and technology external to the Product.
6.5 Defect Products may be returned on the expense of PodoPrinter. Buyer shall pay for returned Products that are not found to be Defect together with associated freight, testing and handling costs.
6.6 Notwithstanding the foregoing, PodoPrinter shall have no obligations for breach of warranty if the alleged Defect is found to have occurred as a result of normal wear and tear, environmental or stress testing, misuse, neglect, improper installation, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling of the Products, after the risk of loss in the Products has passed to Buyer. This warranty will not be expanded, and no obligation or liability will arise, due to technical advice or assistance, referrals, qualification/testing data, facilities or any Services in connection with Buyer’s purchase.
6.7 PodoPrinter makes no representations or warranties that the Products, Services or the Software will meet Buyer’s requirements, that the Products or Software will be free of security vulnerabilities, or that the use of the Software will be uninterrupted or error-free.
6.8 The express warranty granted above will extend directly to Buyer and not to Buyer’s customers, agents or representatives. Except as expressly set forth in these terms, all Products, Software, and Services are furnished by PodoPrinter and accepted by Buyer “as is”. The express warranty granted above is in lieu of all other warranties, whether express or implied, including without limitation (i) any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of IP rights, (ii) that any Products, Software, or Services will conform to any demonstration or promise by PodoPrinter, or (iii) or that may arise through any course of dealing between the Parties. All other warranties are hereby specifically disclaimed by PodoPrinter.
6.9 PodoPrinter’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty is limited, at PodoPrinter’s option, either to (a) the replacement or repair of a defective or nonconforming Product, or (b) an appropriate credit for the purchase price of the defective Product. PodoPrinter will have a reasonable time and a reasonable amounts of attempts to repair, replace or credit, at PodoPrinter’s sole discretion. The non-conforming or defective Products shall become PodoPrinter’s property as soon as they have been replaced or credited for.
6.10 Return shipment is the responsibility of the Buyer. All returns are credited as store credit upon receipt. A return merchandise authorization (RMA) is required for returns.
6.11 Return shipment is only possible if PodoPrinter has been informed beforehand with a clear definition of the reason of returning the Product, partially or completely. Buyer cannot claim any rights if the Product arrives unannounced.

7. Services

7.1 Services will be provided on a time and materials basis at PodoPrinter’s then current hourly rates or at rates mutually agreed to in Writing. PodoPrinter will use commercially reasonable efforts to provide any agreed deliverables in accordance with the delivery schedule as agreed by PodoPrinter.
7.2 PodoPrinter will invoice Buyer on or after the date of performance of the relevant (part of the) Services.
7.3 PodoPrinter owns and will continue to own all worldwide right, title and interest in any materials, documentation, and software that are used in performing the Services, as well as any deliverables created during the performance of or resulting from the Services. Title to all IP rights created by or on behalf of PodoPrinter in performing Services shall vest in PodoPrinter, including without limitation IP rights created by PodoPrinter in the design, development and manufacture Products or Software and no transfer of title to, or license in favor of, Buyer of any IP rights used by or on behalf of PodoPrinter in the provision of Services shall occur.

8. Software

8.1 Unless explicitly described otherwise in the Agreement Software is licensed and not sold by PodoPrinter. PodoPrinter grants Buyer a non-transferrable, non-exclusive license to use the Software in machine-readable form, only in combination with or as part of the Product for which the Software has been provided and only one copy for each unit of Product. No rights or licenses with respect to any Software source code are granted to Buyer.
8.2 PodoPrinter does not guarantee that the Software functions faultlessly and without interruptions (for example if non-common or out-of-date operating systems, browsers, plugins, scripts, other software and hardware are used). Buyer accepts the Software as is at the moment of delivery, with all observable and non-observable deficiencies. PodoPrinter shall spend reasonable endeavours to remedy the defects or malfunctions in the Software of which Buyer properly informs it in writing by sending a letter by registered mail within fourteen (14) days after the delivery of the Products, or if it concerns a deficiency that was not immediately observable upon delivery within fourteen (14) days after the defects or malfunctions were first discovered, within a reasonable period of time if it concerns Software developed by PodoPrinter itself. This remedy may be suspended until a new version of the Software is released.
8.3 PodoPrinter shall not be liable if the operating system of Buyer is incompatible with the Software, or if the relevant computer system of Buyer does not have the minimum specifications with which the Software normally works or operates.
8.4 Notwithstanding another written Agreement, PodoPrinter is not obligated to perform maintenance or provide support with respect to the Software. If and to the extent that support has been agreed between PodoPrinter and Buyer, PodoPrinter shall endeavour to conduct this under the agreed conditions.
8.5 To the extent that firmware is embedded in a Product, the sale of the Product shall not constitute the transfer of ownership rights or title in the firmware, and all references to “sale” or “sold” of any firmware shall be deemed to mean a license to use the firmware with the Product.
8.6 PodoPrinter and its licensors own all right, title, and interest (including, without limitation all IP rights) in and to the Software, any technical requirements and end-user documentation for the Software made available to Buyer by PodoPrinter and any content provided by PodoPrinter and used in connection with the Product. PodoPrinter may also license rights owned by third parties with whom it has agreements.
8.7 If applicable, Software or third party software (including any open source software) may be provided under different or additional license terms if specified to Buyer accordingly in the documentation, Software, or otherwise.
8.8 If Buyer is in default of any of the terms in an Agreement, Buyer’s license to Software and documentation will automatically terminate. Buyer shall indemnify PodoPrinter against and hold PodoPrinter harmless from any damage or costs arising from or in connection with any breach of the provisions of this Section and Buyer shall reimburse all costs and expenses incurred by PodoPrinter in defending any claim, demand, suit or proceeding arising from or in connection with such breach. Upon any termination Buyer will no longer be permitted to use the Software of PodoPrinter. All licenses granted hereunder will terminate.
8.9 PodoPrinter has no responsibility or liability for damages or claims relating to any use of the software of any third parties connected to or put forward by PodoPrinter.
8.10 In accessing or using the Software, Buyer agrees not to (or permit anyone else to) do or attempt any of the following:
• use distribute, rent, loan, lease, sell, sublicense, or otherwise transfer or offer the Software for any commercial purpose outside the purposes described in or explicitly compatible with the Agreement;
• modify, translate, adapt, arrange, or create derivative works of the Software;
• decompile, disassemble or reverse engineer, or determine any source code, algorithms, methods, or techniques of the Software;
• interfere with, damage, or disrupt the operation or any security-related features of the Software, gain unauthorized access, or restrict or inhibit use by others;
• use the Software, any feature thereof in a way that could or does violate any law or the rights (including without limitation, the copyright, trademark, patent, trade secret other intellectual property, proprietary or other rights) of any person, firm or entity or expose to PodoPrinter a legal liability.
8.11 PodoPrinter reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.
8.12 Buyer is responsible for Buyer’s use of the Software and for any consequences thereof.
8.13 PodoPrinter shall not be liable to you or third parties for any loss or damage resulting from any use of the Software or the Software of third parties, except in cases of wilful intent or gross negligence on the part of PodoPrinter.
8.14 Buyer is responsible for establishing the adequacy of independent procedures for testing the reliability, accuracy and completeness of Buyer’s designs, output, products or materials used and/or developed in connection with the Software.
8.15 Buyer allows PodoPrinter to collect information obtained for the purpose of improving its Software and Products.

9. Intellectual Property Rights

9.1 All IP rights owned or obtained by PodoPrinter with regard to the Product, Software, Service, documentation, technical information and drawings will remain vested in PodoPrinter or any third party from whom PodoPrinter has a license to use the IP-rights.
9.2 Buyer acquires the right to use the PodoPrinter IP rights embodied in the Product. Therefore, as part of the Agreement and subject to the payment of all amounts due under the Agreement, PodoPrinter grants Buyer a non-exclusive and non-transferable license to use the PodoPrinter’s IP rights as incorporated in the Product. Buyer is not allowed to act in a way that violates the IP rights of PodoPrinter. Thus, it is, inter alia, prohibited to:
• design, manufacture or sell any product which makes use of or incorporates the PodoPrinter IP that is not compatible with the Agreement between Parties;
• disassemble or reverse engineer the Products or determine any methods, or techniques of the Products;
• modify Software embedded in the Products;
• share, without Written permission of PodoPrinter, technical information which is protected by IP rights with third parties;
• remove logos, trade names or trademarks of PodoPrinter from the Products or add logos, trade names or trademarks from Buyer to the Products.
9.3 All right and title worldwide in or to any upgrades modifications, alterations or derivate works of a Product, even if discovered, developed or created by or for Buyer, shall exclusively be owned by PodoPrinter. Buyer hereby transfers such right and title to PodoPrinter who accepts such transfer.
9.4 If Buyer becomes aware of an infringement of IP rights belonging to PodoPrinter, Buyer will inform PodoPrinter accordingly as soon as possible.
9.5 If any Product is, or in PodoPrinter’s opinion is likely to become, the subject of a claim of infringement, PodoPrinter shall have the right, without obligation and at its sole option, to: (i) procure for Buyer the right to continue to use or sell the Product, (ii) replace or modify the Product in such a way as to make the modified Product non-infringing, or (iii) terminate any Agreement to the extent related to the Product. If PodoPrinter terminates the agreement based on this section, Buyer may return to PodoPrinter all affected Products in Buyer’s possession at the time of the termination, which are then subject to the claimant’s continuing claim of infringement; and upon return PodoPrinter will credit Buyer the sum paid to PodoPrinter by Buyer for returned Products, less appropriate depreciation.
9.6 The foregoing indemnity is personal to Buyer and is not assignable, transferable or subject to passthrough to any third party including Buyer’s customers.
9.7 PodoPrinter’s liability for damages under this Section are limited by the limitation described under Section 11.
9.8 Upon request by PodoPrinter, Buyer shall execute a joint representation agreement and waiver of conflicts of interests that will allow counsel retained and directed by PodoPrinter to represent both PodoPrinter and Buyer in the suit, and that will also allow counsel retained and directed by PodoPrinter to represent PodoPrinter in the future and be averse to Buyer in the future.
9.9 If any IP right infringement claim against any Product or Software is asserted prior to completion of delivery of the Product, PodoPrinter may decline to make further shipments.

10. Confidentiality

10.1 Buyer may have access to information that is confidential to PodoPrinter and its licensors or suppliers (“Confidential Information”). Such Confidential Information shall include, but is not limited to, the knowhow and software embedded in the Products, features and design of the Products, the Software, Services, Documentation, formulas and methods, knowhow, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the terms and pricing under the Agreement, all information clearly identified in writing at the time of disclosure as confidential and all information which Buyer ought reasonably to regard as confidential.
10.2 PodoPrinter’s Confidential Information shall not include information that:
i. is or becomes a part of the public domain through no act or omission of Buyer;
ii. was in Buyer’s lawful possession prior to the disclosure and had not been obtained by Buyer either directly or indirectly from PodoPrinter;
iii. is lawfully disclosed to Buyer by a third-party without restriction on disclosure; or
iv. is independently developed by Buyer without use of or reference to PodoPrinter’s Confidential Information.
10.3 Buyer agrees, unless required by law, not to make PodoPrinter’s Confidential Information available in any form to any third party or to use PodoPrinter’s Confidential Information for any purpose other than in the performance of the Agreement. Buyer agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of the Agreement.
10.4 Buyer agrees to hold PodoPrinter’s Confidential Information in confidence as from disclosure, during the term of the Agreement and for an unlimited period thereafter. Buyer acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this article 10 and that such breach would cause irreparable harm to PodoPrinter; therefore, PodoPrinter shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under the Agreement.
10.5 This article 10 will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that Buyer shall first have given notice to PodoPrinter and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.

11. Liability

11.1 PodoPrinter’s liability for direct damage and indirect damages, such as consequential damages, consequential losses, lost profits, lost savings, loss of goodwill, damages through business interruptions, damages ensuing from claims by Buyer’s buyers, mutilation or loss of data, damages relating to the use of objects, materials or software of third parties prescribed by Buyer for PodoPrinter, damage relating to engagement of suppliers prescribed by Buyer for PodoPrinter and all other forms of damage or injury on any account whatsoever, shall be excluded. This restriction of liability does not apply in the event of intent or wilful recklessness on the part of PodoPrinter.
11.2 In so far as PodoPrinter is liable, irrespective of the grounds for such liability, PodoPrinter’s aggregated liability for Products, Software and Services including defects or malfunctioning and late delivery or non-delivery of Products, Software and/or Services, shall be limited at all times to the amount paid out under PodoPrinter’s liability insurance policy and shall never exceed an aggregate total amount of EUR 250,000 (two hundred and fifty thousand Euros) per calendar year, including but not limited to liability with respect to alleged infringement of any IPRs by Products or any part thereof, Software, or Service, or liability based in contract, tort (including negligence), product liability, or otherwise.
11.3 The limitations set forth above are essential elements of each Agreement and shall apply notwithstanding the failure of essential purpose of any exclusive or limited remedy, and whether or not PodoPrinter has been advised of the possibility of such damages. Buyer understands and agrees that the foregoing liability limitation allocates the risks and is an essential element under all Agreements and PodoPrinter’s pricing reflects this allocation of risk and the above liability limitations.
11.4 PodoPrinter’s liability because of an imputable failure to perform an Agreement shall in all cases only arise if Buyer immediately and properly provides a Written notice of default to PodoPrinter, with a reasonable time period for remedying the failure being given and PodoPrinter still imputably failing to perform its obligations after that period as well. The notice of default must contain a description of the breach which is as complete and specific as possible, so that PodoPrinter can respond adequately.
11.5 For any right to damages to exist, Buyer must always report the damage or injury to PodoPrinter in Writing as soon as possible after it occurs sufficiently substantiated by evidence. Any claim to damages against PodoPrinter shall be deemed waived by the mere lapse of three (3) months after the claim arises or when no lawsuit is filed within one (1) year of its occurrence.
11.6 Unless agreed upon otherwise, Buyer indemnifies PodoPrinter for all claims from third parties for damages they have suffered. In particular, Buyer indemnifies PodoPrinter against all third-party claims on account of product liability resulting from a fault or defect in a Product and/or Software delivered by Buyer to a third party that consisted entirely or partly of Products and/or Software delivered by PodoPrinter.
11.7 PodoPrinter does not bear any liability for damage or loss of whatever nature arising from incorrect, careless, improper or incompetent use of Products and/or Software or from any use of Products and/or Software for other than the purpose for which the Product and/or Software is intended.

12. Retention of title

12.1 Ownership title to Products will not pass to Buyer until Buyer has met all of its payment obligations under the Agreement.
12.2 If Buyer fails to meet its payment obligations, PodoPrinter will be entitled to collect its property or to have such collected. Costs related to the collection of its property by PodoPrinter will be borne by Buyer.

13. Termination

13.1 Each of the Parties shall only be entitled to – partially or entirely or only for the future – dissolve the Agreement if the other Party imputably fails to perform material obligations under the Agreement, but in all cases, only after having sent a proper Written notice of default which is as detailed as possible and in which it has been given a reasonable time period to remedy the breach.
13.2 In addition to dissolution grounds that exist under the applicable law, PodoPrinter shall have the right to dissolve the Agreement and every claim that PodoPrinter has against Buyer will then become immediately due and payable in full, in the event:
i. Buyer does not meet its payment obligations or otherwise materially breaches any term hereof and fails to cure such breach within ninety (90) days after written notice of such breach; or
ii. Buyer fails to accept ordered Products, Software and/or Services; or
iii. if Buyer becomes insolvent, or if Buyer makes an assignment for the benefit of its creditors, or if proceedings in bankruptcy or under any insolvency or similar law or for reorganization, receivership or dissolution are instituted by or against Buyer, which proceedings if involuntary are not dismissed within sixty (60) days of filing thereof, or
iv. Buyer is prevented by a Force Majeure Event from full performance under this Agreement for more than sixty (60) days.

14. Force Majeure

14.1 Parties shall not be liable for any failure or delay in performance in case a failure is not attributable to that Party, the performance of the relevant part(s) of the Agreement will be suspended while the failure continues, without that Party being responsible or liable to the other party for any damage resulting from the failure.
14.2 The expression “Force Majeure” means and includes any circumstances or occurrences beyond a Parties reasonable control (whether or not foreseeable at the time of the Offer or Agreement) as a result of which PodoPrinter cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, terrorism, insurrections, strikes, fires, floods, earthquakes, labour disputes, pandemics, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labour, materials or components. If the Force Majeure extends for a period of three (3) consecutive months (or if the delay is reasonably expected by PodoPrinter to extend for a period of three (3) consecutive months), PodoPrinter may cancel all or any part of the Agreement without any liability of PodoPrinter towards Buyer.

15. Use of the website

15.1 Use of PodoPrinter’s website and portal shall always be subject to specific terms and conditions published on that website or portal.
15.2 Harassment in any manner or form on PodoPrinter’s website, e-mail, chat, or use of obscene or abusive language, is strictly forbidden. Impersonation of others, including employees or representatives of PodoPrinter as well as other members or visitors on PodoPrinter’s website is prohibited.
15.3 Buyer may not upload to, distribute, or otherwise publish through the website any content which is libellous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal or other behaviour which may constitute a criminal offense, violate the rights of any party or which may otherwise give rise to liability or violate any law.
15.4 Buyer may not upload commercial content on PodoPrinter’s website or use PodoPrinter’s website to solicit others to join or become members of any other commercial online service or other organization.

16. Participation Disclaimer

16.1 PodoPrinter does not and cannot review all communications and materials posted to or created by users accessing the website, and is not in any manner responsible for the content of these communications and materials.
16.2 Buyer acknowledges that by providing the ability to view and distribute user-generated content on the website, PodoPrinter is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any contents or activities on the website. However, PodoPrinter reserves the right to block or remove communications or materials that it determines to be abusive, defamatory, obscene, offensive, fraudulent, deceptive, misleading or in violation of a copyright, trademark or other intellectual property rights or otherwise unacceptable to PodoPrinter in its sole discretion.

17. Privacy

17.1 For the terms and conditions regarding personal data protection, PodoPrinter refers to the privacy policy on its website which can be found on https://podoprinter.com/podoprinters-privacy-policy/.

18. Miscellaneous

18.1 This English version of the Terms will be the only official and legally binding version, regardless of whether a translation into another language is or will be made.
18.2 Buyer shall not assign any rights or obligations under these Terms or any Agreement without the prior Written consent of PodoPrinter. PodoPrinter may assign, in whole or in part, any rights or obligations under these Terms and any Agreement (i) to its Affiliates, or (ii) in connection with a corporate reorganization or restructuring, business combination, or sale of all or a substantial portion of the assets of a division, business unit or entity, in one or a series of related transactions. Any attempted assignment in violation of this Section will be void.
18.3 The failure or delay by PodoPrinter to exercise any right or remedy arising from any Offer or Agreement, or these Terms, shall not operate as a waiver of the right or remedy; and no single or partial exercise of any right or remedy will preclude any other or future exercise of the right or remedy or the exercise of any other right or remedy arising from any Offer or Agreement, or these Terms or by law.
18.4 Specific provisions in any Agreement deviating from these Terms prevail over the provisions of these Terms.
18.5 The applicability of Buyer’s general purchasing or other Terms is herewith explicitly excluded.
18.6 The Parties intend to establish a relationship of buyer and seller and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.
18.7 The invalidity or nullity of any provision of these Terms of Sale and Delivery will not affect the validity of the remaining provisions of these Terms of Sale and Delivery.

19. Changes

19.1 PodoPrinter reserves the right to modify these Terms at any time.
19.2 Such modifications shall have effect:
iv. on all Offers and Agreements referring to the modified Terms from the date of the Offer or Agreement; and
v. (b) on any existing Agreement thirty (30) days from notification of the modifications by PodoPrinter to Buyer, unless Buyer has notified PodoPrinter within the thirty (30) day period that it objects thereto.

20. Applicable law and Disputes

20.1 All Offers, Agreements and their performance are construed in accordance with and shall be governed by the laws of the Netherlands.
20.2 The applicability of the Vienna Sales Convention is expressly excluded.
20.3 All disputes arising in connection with Offers, Agreements and their performance shall be finally settled in accordance with the Rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut). The arbitral tribunal shall be composed of three arbitrators. The place of arbitration shall be Amsterdam, the Netherlands. The arbitral procedure shall be conducted in the English language.
20.4 Nothing in this Section shall be construed or interpreted as a limitation on either PodoPrinter’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
20.5 Any claim the Buyer has in relation to the Offer, Terms, Agreement or further agreements between Parties, must be commenced within one (1) year after the cause of the claim arises.

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