TERMS AND CONDITIONS DIABSHOP
Terms and Conditions for delivery and payment of DIABSHOP, a subsidiary of JP Willpower Co.Ltd. (Hereunder to be named as: Diabshop)
Made in October 2018 / ตุลาคม 2561
These Terms and Conditions for delivery and payment, hereinafter ‘Conditions, are part of all by Diabshop released quotations, special offers and/or (resulting) agreements. Deviations from, or additions to, these conditions require the explicit written permission from Diabshop. “Other Party” shall mean every (legal) person, its representatives, agents, legal successors or heirs, who have concluded or wish to conclude an Agreement with Diabshop. Diabshop accepts no applicability of general purchasing, tender or other conditions of the Other Party. Should any provision of these conditions or part thereof become void or voidable, the remaining provisions or the remainder shall remain in force. Diabshop and the Other Party agree to replace the void or voidable provision by a provision that they would have agreed upon, if they would have known the voidability or the voidness. These conditions have been drawn up in English, in case of any dispute about the contents or scope of these conditions, the English text shall prevail.
SPECIAL OFFERS, FORMATION, CONTENT AND IMPLEMENTATION OF THE AGREEMENT
Diabshop reserves the right to refuse orders without giving any reasons. The quotations offered by Diabshop are valid for a period of 14 days, unless stated otherwise. It is not possible to buy products for the special offer price outside this period. The documents issued by Diabshop that accompany the special offers remain the property of Diabshop. This may not be copied, nor handed to third parties without the express consent. An agreement with Diabshop is only concluded if an assignment has been accepted verbally, or it is confirmed in writing. The order confirmation is deemed to display the agreement accurately, unless the Other Party objects against it immediately or in any case within 7 days in writing. The powers to conclude binding agreements is solely reserved to the directors of Diabshop. Agreements concluded by anyone other than the directors are only binding if they are confirmed by the directors. After the conclusion of the agreement additional agreements are deemed to be part of the agreement. If no quotation or order confirmation is sent, the invoice is deemed to display the agreement accurately, except when objected to within 7 days after the invoice date. Each agreement is established under the suspensive condition that the Other Party is sufficiently creditworthy for the monetary fulfilment of the agreement. The assessment thereof shall be on the side of Diabshop. Diabshop is entitled to demand a collateral from the Other Party, so both the monetary, as well as the other obligations will be met, regardless of the situation in the execution of the Agreement. In respect of the proper execution of the Agreement the Other Party has an information obligation. In case of incomplete and/or inaccurate information Diabshop shall not be liable for any inaccuracies in the execution. Diabshop is free to engage third parties for proper execution of the Agreement. These costs shall borne by the Other Party. If the Other Party uses an order of goods on site, the Other Party shall ensure a suitable location and all necessary facilities that enable the proper execution of the Agreement.
All prices are stated in Thai Baht and include VAT, any other government-imposed levies and transport / packing / shipping costs. An increase of one or more cost price factors will be charged in the order price; all this with due observance of any existing legal regulations. Any already known future price increases must be stated at the order confirmation. Any costs incurred due to reasons beyond the company’s OR Diabshop control and that require a change in the work, may be charged at the Other Party. Also the entry into force of government regulations, that were and/or could not have been known at the time of concluding the Agreement, could cause additional costs to be borne by the Other Party.
If the Other Party – after an Agreement has been established – wishes to cancel this Agreement, Diabshop shall be entitled to charge 10% of the order price (excl. VAT) as a cancellation fee, without prejudice to the right to full compensation including loss of profit. No cancellation shall be possible with regard to the goods originating from Diabshop as these are customized products.
All word- and/or trademarks, trade and/or fantasy names and/or a combination of words in which the word or trademarks, trade names and fantasy names of Diabshop or one of its affiliated companies, patents and/or patent applications, drawings, calculations, descriptions, models, moulds, tools, software, know-how, work methods, methods and technology, developed and/or filed and/or obtained by Diabshop and of which the Other Party has obtained knowledge, are and remain the property of Diabshop. The information that is based on, or is the basis of, the manufacturing and construction methods, products etc., remains exclusively reserved to Diabshop, even if these are subject to charges. The Other Party warrants that said information, except for the implementation of the Agreement, is not used, copied, registered, filed, shown to third parties, disclosed or otherwise controls without the written consent from Diabshop. Any images, drawings, sizes and measurements etc. details stated in catalogs only bind Diabshop if and to the extent that these are included in an agreement or order confirmation signed by Diabshop.
Unless agreed otherwise in writing, delivery will take place within Thailand carriage paid (in accordance with Incoterms 2010) and outside Thailand Ex Works (in accordance with Incoterms 2010). The specified delivery times do not commence before receiving the agreed advance payments and all data and documents to be provided by the Other Party have been received. Diabshop reserves the right to terminate the deliveries agreed with the Other Party if the Other Party fails to pay outstanding claims regarding the deliveries of Diabshop. Exceeding the estimated delivery time or the time at which the work will commence, will not entitle the Other Party to claim compensation for damage, right on full or partial termination of the Agreement, except in the event of intent or gross negligence on the part of Diabshop. In case of excessive overruns of the delivery time Diabshop will consult with the Other Party. A duty of information applies for the Other Party and an adequate insurance obligation with respect to goods which are placed at third parties. Diabshop wishes to be informed at any time where the delivered goods are located. For such goods also a duty to cooperate applies for the Other Party. The Other Party will therefore have to respond to the request of Diabshop when Diabshop wishes to receive goods.
EXCHANGE AND RETURN
At Diabshop you can exchange or return your purchases within 7 days after purchase in the original packaging. This except for special orders/customized items, such as customized hearing protection equipment and earpieces.
Complaints with respect to invoices and the delivered and installed work must be made in writing, within 7 days after the invoice date respectively after the delivery and the installation of the work. Upon expiry of this period the invoice is deemed to have been approved. Admissibility and merits of the complaint can only lead to delivery of the agreed performance. Complaints shall not suspend the obligation to make payment. If the complaint is found to be justified, the payment obligation can only be suspended to the extent that this relates to the part to which the complaint relates.
Payment must be made, without any discount, deduction or offsetting, cash upon delivery or by transfer to a bank account number designated by Diabshop within 7 days after the invoice date, unless agreed otherwise in writing. The currency date will be determined as the date of payment. Payments made by the Other Party are primarily due as payment for the due interest and costs incurred. After payment of these costs, payments will be deducted on the outstanding invoice. If payment has not been made within the agreed period, the Other Party shall be legally in default and interest will be owed on the outstanding amount from the date of invoice. Diabshop shall be entitled to charge contractual interest of 5% per month (or part thereof). In addition, all extrajudicial and judicial costs incurred or to be incurred shall be borne by the Other Party. The extrajudicial costs amount to 15% of the invoice amount due and interest with a minimum of 3,000.00 Thai Baht.
Warranty is given on products and work delivered by Diabshop under the following conditions:– warranty can only relate to manufacturing defects, no warranty will be granted on products that show defects resulting from to wear, use or improper use.– there is no warranty if changes to the work have been made by third parties or the Other Party;–for parts not delivered by Diabshop, but by third parties only the warranty period that the third parties have granted Diabshop, applies; A warranty with respect to the work carried out by Diabshop is issued for a period of one year, unless there are circumstances on in which an appeal to the warranty terms is excluded. This may include damages caused by others. With respect to products coming from Diabshop a warranty period of three months applies. If the Other Party has problems with the customized product, the product must be returned to Diabshop within a period of 3 months. Diabshop will ensure a proper replacement of the product. The Other Party will receive a replacement product which the same performance as the product initially ordered. The ownership of components replaced under warranty is at Diabshop. If the Other Party fails to fulfill its contractual obligations, Diabshop shall not be bound to give warranty.
The liability of Diabshop is limited to the fulfillment of the warranty obligation set out in Article 10. Our liability will never exceed the total amount of the order in question. Except for intent or gross negligence and subject to the provisions of the previous paragraph, all liability of Diabshop for (direct and indirect) damage, both at the Other Party, as well as at third parties, is excluded. If and to the extent that Diabshop is liable for any reason, Diabshop shall in no event be obliged to pay compensation of more than the contract amount per event, considering a series of events as one event. For deliveries whereby Diabshop uses third parties, Diabshop shall never be held liable with respect to damages and failures arising from third party acts. Diabshop can never be liable if it appears that the Other Party is allergic to certain substances that Diabshop uses for the ordered product. The Other Party is obliged to indemnify Diabshop respectively for all third-party claims for compensation of damage, costs and interest, for which the liability of Diabshop in these conditions in relation to the Other Party is excluded.
Force majeure shall mean any independent or unforeseeable circumstance beyond the control of Diabshop as a result of which fulfillment of the Agreement permanently or temporarily in whole or in part can no longer be expected. Any force majeure event gives Diabshop the right to suspend its obligations arising from the Agreement during the force majeure event, until the circumstance that causes the force majeure no longer exists. If the force majeure situation is of a permanent nature, the parties shall have the right to terminate the Agreement, without being entitled to compensation for any damage. The party who believes to be in a majeure situation, must inform the Other Party immediately.
Without prejudice to all its other rights, including the right to compensation for any damage suffered or to be suffered, and without being held to pay any compensation or give warranty, Diabshop has the right to terminate the Agreement in whole or in part out of court or suspend its obligations without notice of default and without judicial intervention, if– the Other Party is declared bankrupt, has applied for, or has been granted moratorium, goes into liquidation, a seizure is imposed upon the Other Party, or transfers or ceases its business activities or changes its objective;– the Other Party for whatever reason fails to fulfill one or more obligations arising from the Agreement concluded with Diabshop;– the Other Party dies or is placed under guardianship. In case of an event as referred to in Paragraph 1, all claims of Diabshop towards the Other Party shall be immediately and completely claimable and Diabshop shall be entitled to take the already delivered goods back.
APPLICABLE LAW AND COMPETENT COURT
All agreements concluded with Diabshop, implementations thereof and these terms are governed by Thai law, with the exclusion of the CISG 1980 (CISG).All disputes, arising from an agreement concluded with Diabshop, shall be settled exclusively by the court in Bangkok.