GENERAL TERMS AND CONDITIONS
OF SALE HEALTHCARE BRANDS GROUP NETHERLANDS B.V.
1.
Definitions and interpretation
1.1. In these General Terms, the definitions used have the following meaning:
Agreement: any agreement concluded between the Parties for the sale of Products, any amendment or addition thereto, as well as all (legal) acts in preparation for and/or in execution of that agreement.
Customer: any legal entity or natural person acting in the course of a trade or business who enters into or wishes to enter into an agreement with Supplier, or to whom Supplier makes an offer or performs an obligation.
Delivery: has the meaning given to it in clause 4.2.
Delivery Location: has the meaning given to it in clause 4.1.
Direct Damages: means (i) the reasonable costs that Customer would have to incur to ensure Supplier’s performance of the relevant Agreement. These costs shall not be reimbursed if the Agreement is terminated for cause (in Dutch: ontbonden) in whole or in part by Customer, (ii) the reasonable costs incurred in determining the cause and extent of the damages, insofar as such determination relates to direct damages within the meaning of these General Terms; and (iii) the reasonable costs incurred in preventing or mitigating direct damages within the meaning of these General Terms.
Exclusions: has the meaning assigned to it in clause 7.3.
Force Majeure Event: means an event of force majeure (in Dutch: overmacht) as referred to in article 6:75 of the Dutch Civil Code, which, with regard to Supplier’s performance, includes, inter alia, a failure arising from (i) any law or measure of a government or public authority, such as an export or import restriction, quota or prohibition, or the failure to grant a necessary licence or consent, (ii) fire, explosions or accidents, (iii) pandemics and epidemics, (iv) labour or trade disputes, strikes, industrial unrest or lockouts, and (v) a failure on the part of Supplier’s suppliers.
General Terms: these general terms and conditions of sale of Supplier.
Order: the order for the Products placed by Customer as set out in the written order placed by Customer.
Parties: Supplier and Customer collectively, each referred to individually as a Party.
Products: the goods specified in the Agreement.
Specifications: the specifications of the Products as provided in writing by Supplier.
Supplier: Healthcare Brands Group Nederland B.V.
Warranties: has the meaning given to it in clause 7.1.
Warranty Period: has the meaning given to it in clause 7.1.
1.2. Unless expressly stated otherwise in these General Terms:
a) ‘in writing’ or ‘written’ shall also be understood to mean electronic communication by email or via EDI;
b) dates and terms, with the exception of payment terms, shall not be regarded as strict deadlines (in Dutch: fatale termijnen) and are only indicative;
c) definitions in the singular include the plural and definitions in the plural include the singular; and
d) all rights and claims of Supplier under these General Terms shall apply without prejudice to Supplier’s rights and claims under the law.
2. Conclusion of the Agreement
2.1. The Order constitutes an offer by Customer to purchase the Products subject to these General Terms. Customer is responsible for the completeness and accuracy of the Order.
2.2. The Order shall be deemed to have been accepted at the moment Supplier accepts the Order in writing, at which point the Agreement is concluded.
2.3. Customer declares that they are entering into the Agreement in its capacity as a legal entity or natural person, acting in the course of a trade or business.
2.4. All samples, drawings, dimensions or advertisements issued by Supplier and all descriptions or illustrations in Supplier’s catalogues or brochures or on its website are provided to give a general idea of the Products referred to therein and do not form part of the Agreement.
3. Prices
3.1. All prices quoted by Supplier are in euros and exclude VAT, unless expressly stated otherwise in the Agreement.
3.2. If, after the conclusion of the Agreement, there is an increase of more than ten (10) per cent in one or more cost-determining factors, Supplier is entitled to pass on this increase to Customer, unless expressly agreed otherwise in the Agreement.
3.3. For the avoidance of doubt, it is noted that overarching (annual/framework) agreements regarding prices for Products in relation to certain volumes shall be observed by the Parties.
4. Delivery
4.1. Supplier shall deliver the Products to the location specified in the Agreement (the Delivery Location) on the date notified in writing by Supplier. If no Delivery Location is specified in the Agreement, delivery shall take place Ex Works (as defined in the most recent version of the Incoterms) at the Supplier’s premises.
4.2. Delivery is complete when the Products have been delivered to the Delivery Location (the Delivery).
4.3. If Customer does not accept the Delivery of the Products, Supplier shall store the Products at Customer’s risk until delivery takes place and shall charge Customer for all associated costs and expenses (including insurance).
4.4. Supplier may deliver the Products in instalments, which shall be invoiced and paid for separately. A delay in delivery or a defect in a partial delivery shall not entitle Customer to suspend a subsequent partial delivery or to terminate the Agreement for cause (in Dutch: ontbinden).
5. Risk and ownership
5.1. The risk in the Products passes to Customer as soon as the Delivery is completed.
5.2. All Products delivered to Customer shall remain the property of Supplier until all amounts due under the Agreement, including interest and costs, have been paid in full by Customer.
5.3. Until ownership of the Products has passed to Customer, Customer shall:
a) ensure (or arrange for) that all reasonable measures are taken to make it clear that the Products are still the property of Supplier; and
b) take all necessary steps to prevent blending, accession (in Dutch: natrekking) or conversion (in Dutch: zaaksvorming).
5.4. Until ownership of the Products has passed to Customer, Customer is not permitted to remove the Products from its actual control, dispose of them, pledge them or encumber them.
5.5. Customer is obliged to inform any third parties seeking to make a claim against the Products supplied by Supplier of the Supplier’s right of ownership over them. Furthermore, Customer is obliged to inform Supplier immediately of any such claim by a third party.
6. Inspection
6.1. Customer may reject Products delivered to it that do not comply with the Warranties, provided that:
a) a written notice of rejection is given to Supplier (i) in the case of a defect that is (or would be) visible upon normal visual inspection, within three (3) days of Delivery and (ii) in the case of a hidden defect, within a reasonable period of no more than fourteen (14) days after the hidden defect has come to light; and
b) none of the Exclusions apply.
6.2. If Customer fails to give written notice of rejection in accordance with clause 6.1(a), Customer shall be deemed to have accepted these Products and all rights and claims of Customer shall lapse, unless expressly provided otherwise in these General Terms.
7. Warranties
7.1. The Products shall, if unopened, remain in good condition until the best-before date stated on the (packaging of the) Products, or failing that, for a period of twenty-four (24) months following Delivery (the Warranty Period) (i) comply in all material respects with the Specifications and (ii) be suitable for the applications specified by Supplier (collectively referred to as: the Warranties). The Parties may agree on a shorter Warranty Period in the Agreement.
7.2. Subject to the provisions of clause 7.3, Supplier shall, at its discretion and to the exclusion of any other rights and claims of Customer, either replace the defective Products or refund the price of the defective Products, provided that:
a) Customer notifies Supplier in writing in good time and during the Warranty Period;
b) Customer keeps the defective Products available to Supplier in an unused, unmixed and unprocessed state;
c) Supplier is given a reasonable opportunity to inspect the Products; and
d) Customer (only if requested to do so by Supplier) shall return the Products to Supplier’s business address at Supplier’s expense.
7.3. Supplier shall have no obligations in respect of the Products’ failure to comply with the Warranties and shall not be liable in the following cases (the Exclusions):
a) Customer continues to use the Products after the notification referred to in clause 7.2(a) and/or the Products do not comply with the provisions of clause 7.2(b);
b) the defect has arisen because Customer has failed to follow Supplier’s written instructions regarding the storage, safekeeping, use and processing of the Products or (in the absence thereof) good trade practices in this regard;
c) Customer modifies the Products without Supplier’s written consent;
d) the Products deviate from the Specifications as a result of changes made by Supplier to ensure that the Products comply with applicable laws or regulations; or
e) the defects, deviations and/or differences in the Products fall within a production or weight tolerance that is reasonable according to commercial practice, and/or are, according to generally accepted commercial standards, characteristic of the type of products.
7.4. Subject to the provisions of this clauses 7 and 10.7, Supplier shall have no further obligations and shall not be liable, on any grounds whatsoever, to Customer in respect of the Products’ failure to comply with the Warranties and/or the Products’ failure to conform to the Agreement.
7.5.
The provisions of this clause 7 apply to replacement Products supplied by Supplier.
8. Payment
8.1. Customer shall pay all invoices from Supplier no later than the due date stated on the invoice, or in absence thereof, within thirty (30) days of the invoice date, to the bank account number stated on the invoice.
8.2. Supplier is entitled to demand (partial) advance payment for the Products and/or to require sufficient security for the fulfilment of Customer’s payment obligations.
8.3. If the date referred to in clause 8.1 is exceeded, Supplier is entitled to suspend all deliveries, regardless of the Agreement with e Customer from which they arise, until payment has been received.
8.4. Any payment made by or on behalf of Customer and received by Supplier after the due date shall always be deemed to have been applied first towards the statutory commercial interest, extrajudicial collection costs and any other costs owed by Customer, and subsequently in order of seniority of the outstanding claim(s), regardless of any instructions to the contrary from Customer.
8.5. Supplier is authorised to set off the amounts owed or to be owed by Customer to Supplier or to companies belonging to the same group (as referred to in article 2:24b of the Dutch Civil Code) as Supplier against the amounts which Customer, on whatever grounds, is entitled to claim from Supplier or other companies belonging to the same group as Supplier.
8.6. Customer’s right to invoke suspension or set-off is excluded.
9. Term and termination
9.1. With the exclusion of Customer’s statutory termination right (in Dutch: wettellijk ontbindingsrecht), either Party shall be entitled to terminate the Agreement for cause (in Dutch: ontbinden) in whole or in part with immediate effect by means of written notice in the event that:
a) the other Party fails to fulfil a material obligation under the Agreement which has not been remedied by the defaulting Party within a reasonable period of thirty (30) days following a detailed notice of default;
b) the other Party applies for or is granted a moratorium on payments or a declaration of bankruptcy; or
c) a Force Majeure Event on the part of the other Party that continues for longer than ninety (90) days.
9.2. Customer’s payment obligations shall in any event and always be regarded as a material obligation under the Agreement.
9.3. The applicability of the provisions of article 6:271 et seq. of the Dutch Civil Code is excluded in the sense that performances (in Dutch: prestaties) already received are not subject to reversal (in Dutch: ongedaanmaking).
9.4. If the Agreement is classified as a continuing performance contract (in Dutch: duurovereenkomst), Supplier shall at all times be entitled to terminate the Agreement in writing without giving reasons, subject to a notice period of two (2) months.
9.5. Upon termination of the Agreement, for whatever reason, all outstanding invoices and other claims of Supplier against Customer shall become immediately due and payable, and Customer shall settle them.
9.6.
Any provision of the Agreement which is expressly or implicitly intended to take effect or remain in force on or after the termination of the Agreement shall remain in full force and effect.
10. Limitation of liability
10.1. Supplier’s total liability on any grounds whatsoever (including breach of contract, wrongful act, strict liability or otherwise) shall be limited to the amount reimbursed in the specific case by Supplier’s insurance. This excludes the deductible (in Dutch: eigen risico) borne by Supplier in that case.
10.2. If, for any reason whatsoever, no amount is reimbursed under the insurance, Supplier’s total liability on any grounds whatsoever (including breach of contract, wrongful act, strict liability or otherwise) shall always be limited to Direct Damages and shall not exceed half the amount paid by Customer to Supplier under the Agreement (excluding VAT), subject to a maximum of EUR 5,000.
10.3. Supplier’s liability for any damage other than Direct Damages is expressly excluded.
10.4. The exclusions and limitations of liability set out in the Agreement (including this clause 10) may also be invoked by persons who (i) have been engaged by Supplier in connection with the performance of the Agreement and/or (ii) form part of the same group as Supplier. This clause constitutes an irrevocable third-party stipulation (in Dutch: derdenbeding) for the benefit of each of these persons, on the understanding that, upon acceptance of this third-party stipulation, the person concerned expressly does not become a party to the Agreement. The applicability of article 6:254 of the Dutch Civil Code is therefore excluded.
10.5. All claims by Customer for damages shall lapse within twelve (12) months of their arising.
10.6. Customer indemnifies Supplier against all claims by third parties and any damages suffered by Supplier as a result of or in connection with any claim brought against Supplier arising from or relating to the resale, processing and/or use of the Products.
10.7. Nothing in these General Terms limits or excludes Supplier’s liability for damage that:
a) cannot be excluded by mandatory law; or
b) is caused by Supplier’s or its management staff’s intent (in Dutch: opzet) or wilful recklessness (in Dutch: bewuste roekeloosheid).
11. Miscellaneous
11.1. Any amendment or modification to the Agreement shall only be valid if the Parties have agreed to this in writing (excluding electronic communication).
11.2. Supplier is entitled to assign (the rights and obligations arising from) the Agreement to third parties. To the extent necessary, Customer hereby grants its consent in advance to such an assignment (in Dutch: contractsoverneming).
11.3. Customer declares that all intellectual property rights vested in or contained in the Products and Supplier’s trademarks shall remain vested in Supplier and its licensors.
11.4. If any provision of the Agreement is or becomes invalid, void, annulled or unenforceable, the Parties shall remain bound by all other provisions of the Agreement. In that event, the Parties shall replace the provision in question with a provision that is valid and binding and which, having regard to the content and purpose of said provision and the Agreement, has as close as possible the same effect as the invalid, void, annulled or unenforceable provision.
11.5. Supplier is entitled to amend these General Terms unilaterally by notifying Customer in writing. The amended version of the General Terms shall take effect upon receipt by Customer of the notification or at any other time specified in writing by Supplier.
11.6. These General Terms are available in several languages. In the event of any conflict between different translations, the Dutch version shall prevail.
12. Governing law and disputes
12.1. These General Terms and all Agreements are governed by and construed in accordance with the laws of the Netherlands. The applicability of the Vienna Sales Convention (CISG 1980) is expressly excluded.
12.2. All disputes arising from or in connection with an offer, these General Terms and/or the Agreement between the Parties shall be settled exclusively by the competent court in Utrecht, the Netherlands.