GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT OF FORMEX MEDICAL ESTABLISHED AND BASED IN GOUDA.
Article A General
1. In these conditions 'client' means a natural person or legal entity who enters into an agreement with Formex Medical to perform work.
2. In these terms and conditions "work" is understood to mean all work commissioned, or which is carried out or should be carried out pursuant to or in direct connection with the order, all this in the broadest sense of the word and including in any case the work as stated in the order confirmation.
3. In these terms and conditions the contractor is understood to mean Formex Medical, or one of its representatives.
4. In these conditions, the term 'agreement' means: every agreement between the client and the contractor to perform work by the contractor for the client, in accordance with the provisions in the order confirmation.
Article B Applicability
1. These general conditions shall apply to all offers and quotations made by or with the contractor as well as to all assignments and orders placed by the client with the contractor and to the agreements and deliveries thus concluded.
2. By accepting an offer and/or quotation or by entering into an agreement with the Commissionee in any other way, the Client accepts these general terms and conditions with the simultaneous invalidation of any others, including the Client's general terms and conditions, by whatever name. Deviations from these general terms and conditions can only be agreed upon explicitly in writing.
3. If reservations or changes are made in the acceptance by the client in relation to the quotation and/or offers of the client, in deviation from the provisions of the previous paragraphs, the agreement will only be concluded if the contractor has informed the client that it agrees to this deviation.
4. All quotations, offers and price lists of the contractor are without engagement
5. Amendments to and deviations from these general terms and conditions will only be effective if they are agreed upon in writing between the contractor and the client.
6. Any general terms and conditions of the ordering customer are not valid. The applicability of such conditions is explicitly rejected by the contractor.
Article C Conclusion of the Agreement
1. All agreements will only be concluded after they have been confirmed in writing or orally by the contractor or by a person explicitly authorised by the contractor to do so, or after they have been executed without a prior order confirmation.
2. If an order confirmation is sent by the contractor to the principal, its contents will be considered complete and correct, unless the principal makes a written protest against the confirmation within a period of 5 days after receipt.
Article D Herexport
If the 'U.S. Export Regulations' are applicable to the goods delivered by the contractor, re-export by the purchaser and/or other actions by the purchaser which are in violation of said 'Regulations' cannot take place, unless written permission has been obtained from the competent authorities in the United States of America.
Article E Prices and payment
1. All quotations, offers and prices are expressed in Euros and are valid for delivery ex warehouse in the Netherlands. The prices are exclusive of VAT and/or other government levies and without deduction or discount, unless explicitly stated otherwise.
2. If certain cost-determining factors, such as exchange rates, import duties, insurance and freight charges, margin regulations or purchase prices, should change, the contracted party will be entitled to adjust the price accordingly. If the contractor raises the price within 3 months of the conclusion of the agreement, the principal shall be entitled to dissolve the agreement by means of an extrajudicial declaration, unless the price increase is too small to justify dissolution. If the client dissolves the agreement he is obliged to pay full compensation for what has already been achieved.
3. Unless otherwise agreed in writing, one of the following shall be considered a notice of payment, from which the contractor shall make a choice and inform the principal. If the contractor has not notified the principal of his choice, the provisions of subsection c shall apply
a. cash on delivery, i.e. on condition that when the goods are offered to the principal, they must be paid immediately to the provider in cash, since otherwise the goods will not be delivered
b. payment of the agreed price by the principal in cash at a time that the contractor or a representative of the contractor requests this.
c. payment by the Client within a period of fourteen days after the invoice date. In the event of payment within 10 days of the invoice date, the Client may deduct 1% of the net amount, excluding VAT, as a discount.
4. Octrooibureau Novopatent shall at all times be entitled to demand that the Client provide security. The service provider is also entitled to demand advance payment(s) from the client prior to the performance of the contract.
5. Compensation of any claim asserted by the client against the contractor is entirely excluded.
6. If the Client fails to fulfil his payment obligations in good time, the Client shall be in default by operation of law and the total amount owed to the Commissionee shall be immediately due and payable without a warning or notice of default being required - irrespective of any other agreements made in respect of payment. The amount referred to here shall be increased by default interest at a rate of 2% per month calculated from the invoice date until the time of full payment.
7. All costs arising from or related to an attributable failure in the performance of an obligation by the Client or any dispute of any nature between the Commissionee and the Client, as well as all extrajudicial costs, will be borne by the Client.
8. Payments and payments already made by the Client shall first serve to settle costs, then to pay any interest due and subsequently to pay those invoices that have been outstanding the longest, even if the Client states that the payment relates to a later invoice.
9. If, before or during the execution of any agreement, the contracted party receives clear indications regarding the client's reduced creditworthiness, the contracted party will be entitled to suspend the fulfilment of any obligation, unless the client has provided security for the correct payment of the price at the contracted party's request and to its satisfaction.
Article F Services
1. If the performance to be delivered consists of or includes the provision of services, these will be provided to the best of the contractor's knowledge and ability.
2. Delivery of the service shall take place upon completion of the service by placing it at the disposal of the client. The risk of damage or destruction of the performance delivered shall pass to the principal as soon as it comes within the actual power of disposal of the principal.
3. In the event of provision of services in phases, the contractor may suspend performance of services in a subsequent phase until the client has accepted in writing the services provided in the preceding phase or phases.
4. The contractor reserves the right to outsource the services to third parties or to have them performed by third parties on a subcontracting basis.
5. In the event that circumstances arise which impede and/or delay the performance of the agreement through no fault of the contractor, he shall be entitled to charge the client for the costs arising therefrom.
Article G Confidential information and duty of cooperation
1. Subject to statutory obligations to disclose certain data, both the client and the accountant are obliged to maintain the confidentiality of the information received from the other party and the confidential results obtained by processing that information. The client and the accountant will take all reasonable precautions in this respect
2. The client will ensure that all information which the accountant reasonably requires or considers necessary for the proper performance of the assignment in his opinion is provided to the accountant in the desired form. The client will provide the contractor with all other necessary cooperation in the execution of the agreement.
Article H Retention of title and pledge
1. The contractor shall retain ownership of all goods delivered as additional security for the payment of the purchase price, until the obligations arising for the other party from the agreement in question, including damage costs and interest, have been met in full.
2. As long as the ownership has not been transferred to the customer, the latter may not transfer the ownership of the goods, pledge them or grant a third party any right thereto, or enforce such right, except for the provisions of paragraph 7 of this article.
3. The customer is obliged to store the goods delivered under retention of title with the necessary care and as the recognisable property of the contractor.
4. The principal is required to insure the goods for the duration of the retention of title against damage by fire, explosion and water as well as against theft, and to provide the contractor with the policies of these insurances at his first request. All claims of the principal against the insurers of the goods on account of the aforementioned insurances shall, as soon as requested by the contractor, be pledged to him by the principal in the manner indicated in Article 3:239 of the Dutch Civil Code, as additional security for the claims of the contractor against the principal. The client shall, at the contractor's first request, fully cooperate in fulfilling all formalities required for the establishment of a right of pledge, the associated lists of pledges and the registration thereof.
5. If the client fails to fulfil any obligation towards the contractor under the agreement, the contractor is entitled to take back the goods, without any notice of default being required. The client is obliged to cooperate in this and authorises the contracted party to access the location of these items, without prejudice to the contracted party's right to claim full compensation for damage suffered, loss of profit and interest.
6. After taking back the goods, and in so far as payment has been made, the customer will be credited for the market value, up to a maximum of the original purchase price, less any costs incurred by the contractor as a result of taking back the goods.
7. The customer is permitted to sell and transfer the items delivered under retention of title to third parties in the normal course of his business, as long as he has not been deprived of this right by the contractor by registered letter.
Article I Security
1. The contracted party will always be entitled to demand sufficient security for the fulfilment of the payment obligation of the customer before delivering or continuing to deliver.
2. If the security demanded in article E sub 4 is not given, or is given insufficiently, the contractor has the right to terminate the agreement wholly or partly without judicial intervention and to take back the goods already delivered, or to claim fulfilment in court, without prejudice to the contractor's rights to additional or substitute damages.
Article J Delivery and risk
1. Stated delivery times shall never be regarded as deadlines, unless explicitly agreed otherwise. In the event of late delivery, the contractor must be declared to be in default by the principal in writing. Delivery times will be extended by the time that the performance of the agreement is delayed due to force majeure. They shall also be extended by the time by which the principal is later in fulfilling any obligation vis-Ã -vis the contractor than agreed or could reasonably be expected by the contractor.
2. If a delivery period has been agreed, it shall commence on the date on which the contractor has confirmed the offer
3. If the customer does not take delivery of the goods or does not take delivery on the agreed delivery date, the contracted party will ask the customer to indicate a time within 2 weeks after the planned delivery on which the customer can still take delivery of the goods. Should the principal fail to inform the contractor of such a date or should the principal again fail to take delivery on the new date, the contractor shall be entitled to terminate the agreement without notice of default and without prejudice to the principal's right to compensation for loss.
4. Unless otherwise agreed, the risk of the goods shall be for the principal from the moment of delivery. Delivery shall be understood to mean that the item is placed under the actual control of the other party.
5. Loading, transport and unloading of the goods as well as the costs of necessary insurance in this context shall be at the contractor's expense and risk.
6. The principal shall be entitled to deliver or implement goods in parts and to demand separate payment of the parts concerned.
Article K Dissolution and suspension
1. An attributable failure in the performance of the customer's obligations shall be regarded as a resolutive condition, as shall the written confirmation by the accountant that the customer has been declared bankrupt, has applied for a suspension of payments, has been placed under guardianship, has entered into liquidation, has left the Netherlands with his address for service, or has had all or part of his assets attached, or has entered into a situation in which fulfilment of the customer's obligations may, in the accountant's opinion, be reasonably expected. The contractor retains the right to compensation for costs, damages and interest, the right to take back the items delivered by the contractor and not paid for by the client and the right to suspend the delivery of items.
2. In the event of dissolution of an agreement, the contracted party will be entitled to fully or partially suspend the performance of other current agreements with the client until adequate security for the fulfilment of this agreement has been provided.
Article L Force majeure
1. Force majeure on the part of the contractor shall exist if, after the conclusion of the agreement, circumstances beyond his control prevent him from fulfilling his obligations under the agreement or from preparing to fulfil his obligations, as a result of e.g. war, threat of war, civil war, riots, acts of war, fire, water damage, flooding, strike, sit-down strikes, lockouts, import and export restrictions, government measures, disruptions in the supply of energy, all this both in the contractor's business and in the business of third parties from whom the contractor must obtain the goods, as well as in storage during transport, whether or not under his own management, and furthermore as a result of all other causes that arise through no fault of the contractor's.
2. As soon as a circumstance as referred to in paragraph 1 arises, the contractor shall inform the principal thereof.
3. If performance by the contractor is temporarily impossible on the basis of a circumstance leading to force majeure, the contractor shall be entitled to suspend performance of the contract until the circumstance leading to force majeure no longer exists.
4. If performance by the contractor is permanently impossible, the customer will be entitled to terminate the agreement provided that he notifies the contractor in writing within 8 days after notification and is under the obligation to purchase from the contractor that which has already been performed and to compensate the contractor for its value. The same applies if performance by the contractor is only temporarily impossible but is expected to last longer than 3 months.
Article M Liability
1. Except for the obligation of the contractor to ensure free replacement or refund of the purchase price in case of damage to the goods, occurring before delivery, the contractor is not liable for any damage suffered or to be suffered by the client or by third parties, unless the damage suffered by the client or by third parties is a consequence of gross negligence or intention on the part of the contractor.
2. The liability vis-Ã -vis the client will in any case lapse if the client has not informed the contracted party by registered letter of the existence of the defect within 8 days of its discovery or of the time at which the defect could reasonably have been discovered.
3. Any liability of the service provider for damages of the ordering customer is in any case limited to the amount of the invoice of the concerned goods. The contractor shall never be liable for indirect damage.
4. If the contracted party is liable for the performance of the deliveries, it is entitled, in consultation with the client, to deliver replacement items or to credit the client, either in part or in full, for the purchase price.
5. If the performance to be delivered consists of or includes software, the contractor shall not be liable, contrary to the provisions of this article, for the uninterrupted operation or defective operation of the software.
Article N Complaints and return of goods
1. The principal shall be obliged to check the goods received immediately after delivery against the order specified and/or the delivery note enclosed with the shipment
2. In the event of complaints about incorrectly delivered or packaged goods or goods that have been delivered in a damaged condition, the complaint must be submitted by the principal in writing to the contractor, accompanied by the relevant delivery note, no later than on the seventh day following the date of delivery.
3. Verbal complaints and complaints submitted after the expiry of the period referred to in Article M, paragraph 2, will not be accepted.
4. Unpacked goods, if damaged on delivery, must be refused by the principal.
5. In the event of complaints, the goods delivered by the contracted party will only be taken back or returned after prior consultation with the contracted party. The above also applies if the contracted party agrees to return items for repair, without there being a question of a complaint.
6. If items are assembled, have been assembled or processed, complaints are no longer permitted on any grounds whatsoever - including the case of incorrect delivery - even if they are submitted within the specified period. In such cases the contractor is not obliged to pay any compensation of whatever nature.
7. If goods delivered under factory or importer's warranty are returned for assessment of the warranty by the manufacturer or importer concerned, any costs incurred by the contractor as a result may be charged to the client.
8. In the case of items returned to the contractor for repair without a complaint, these items will continue to be regarded as having been delivered to the principal with all the associated consequences, while the costs of repair and transport, if any, will be charged to the principal.
9. At the sole discretion of the contracted party, items delivered by the contracted party for reasons other than those referred to above may be returned and credited to the contracted party, provided that the date of delivery is no more than 30 days old, the items are still in their original condition and packaging and are part of the contracted party's stock range. If a case as referred to above arises, the contracted party will credit the items received in return less the return costs, which consist of 10% of the amount to be credited, with a minimum of € 25 per shipment. Items ordered especially for the Principal will never be returned.
10. For specific orders that are not delivered from stock, we may have to rely on an external supplier who charges a restocking fee in the event of a return. This amount, which may vary from one supplier to another, will be passed on in such cases.
Article O Hardship Clause
If the circumstances which the parties assumed at the conclusion of the contract change so remarkably or drastically during the term of the contract that fulfillment of one or more conditions can no longer be demanded in reasonableness and fairness, consultation will take place between the parties about interim changes to the contract.
Article P Catalogues, price lists, etc
All catalogues, price lists, circulars and other documentation may not, without our express permission, be copied in whole or in part, shown or handed over to any third party, or used in any other way in dealings with third parties.
Article Q Intellectual property rights
Unless expressly agreed otherwise, all designs, illustrations, descriptions, drawings, models, programmes and calculations etc. supplied by or on behalf of the contractor shall remain his property and shall be used by the contractor only
Article R Applicable law
These conditions, as well as all Agreements and all disputes that may arise therefrom, shall be governed by Dutch law, unless explicitly agreed otherwise.
Article S Disputes
All disputes arising from this agreement or from further agreements for its implementation shall be submitted to the competent court in The Hague, after the principal has been offered the opportunity during one month to choose the competent court according to the law.