General Terms and Conditions of Sale and Delivery
General Terms and Conditions of Sale and Delivery
Dalton Medical B.V., filed with the Chamber of Commerce in Breda, West Brabant under no. 20.113.282
Version 20 January 2016
This part of the general terms and conditions of Dalton Medical B.V (hereinafter also "DM") applies to both the supply of goods (including software) and the provision of services.
- General, applicability
These terms and conditions are applicable to all offers and agreements of DM whereby goods and/or services are delivered. Application of the Customer's (purchase) conditions is expressly rejected. Deviation from these terms and conditions is only possible if agreed in writing. If any provision in these terms and conditions is null and void or declared void, the remaining provisions shall remain in force and the parties shall consult with a view to agreeing a replacement provision.
- Offers & prices
Offers, quotations and prices are without obligation and may be withdrawn and/or changed by DM at any time, unless otherwise indicated by DM in writing. All prices are net, in euros and exclusive of VAT, unless otherwise indicated by DM. Invoicing takes place at the prices applicable on the date of delivery.
In case of a periodic payment obligation, DM is entitled to adjust applicable prices in accordance with the CBS consumer price index figure. Customer warrants the correctness and completeness of the data it has given to DM on which an offer is based.
- Conclusion of contract, delivery of goods
An agreement between DM and Customer is only formed by DM issuing an order confirmation/agreement to Customer, which order confirmation/agreement must be signed by Customer and returned to DM within the term specified by DM, unless DM agrees in writing to another way of forming the agreement. Delivery of goods takes place in the Benelux ex DM's warehouse in Oosterhout (NB). Orders with a net invoice value below 250,- Euro are subject to a handling fee of 10,- Euro. DM is entitled to deliver in parts. Unless otherwise agreed, the obligation to sell does not include assembly, configuration and/or installation, nor any peripheral equipment and infrastructure required for use, nor the provision of user instruction and/or training (whether or not on site).
All periods stated by DM are never to be regarded as strict deadlines, unless expressly stated in writing by DM. DM shall make every effort to meet the stated times as much as possible. Exceeding a term of delivery stated by DM does not entitle Customer to compensation, nor does it entitle Customer to judicial or extrajudicial termination of the agreement, nor to any suspension of the payment and purchase obligation. DM is not bound to an initial term if a change in the performance of the agreement has been agreed upon or the Customer does not (fully) fulfil its obligations under the agreement.
- Retention of title, passing of risk
By actual delivery, the risk for the goods provided, rights provided, certificates provided and data provided (incl. passwords and software) passes to Customer.
The legal delivery of goods (if transfer of title has been agreed) always takes place under the suspensive condition of full payment of the purchase price and any interest and costs due. Ownership of the delivered goods shall therefore not pass to Customer until full payment of the purchased goods, plus any interest and costs, has taken place.
Unless otherwise agreed, the provision of software never involves a transfer of ownership of the rights to this software but only provides for the granting of a right of use.
- Selection and framework conditions
Customer bears the risk of selection of the goods and/or services to be provided by DM. Customer's organisation, workspace and facilities will meet the legal requirements and other preconditions for purchase and use of the relevant goods and services. Customer shall provide an environment that meets the requirements specified by DM (a.o. regarding temperature, power supply & humidity). Customer is responsible for the management and security, including control of settings, of the delivered goods and/or services, and the instruction to, and use by users regarding delivered products.
- Payment conditions
Payment shall have taken place within fifteen (15) days net of invoice date, unless expressly agreed otherwise in writing. Amounts due shall be paid according to the currency and other payment conditions agreed or stated on the invoice. Compensation, settlement or set-off on the part of the Customer shall never be permitted. Customer is not entitled to suspend any payment. If Customer has not paid the invoice within the term set for it, Customer shall be in default and in default by the mere expiry of this term, without further notice of default being required. The payment term stated on the invoice is always a deadline. After expiry of the payment term, the Customer shall owe interest on the outstanding invoice amount including VAT equal to the applicable statutory commercial interest rate plus 2% on an annual basis. All costs relating to collection, both judicial and extrajudicial, as well as costs relating to any precautionary measures, shall be borne by the Customer.
- Intellectual property, right of use
All intellectual property rights to the goods (including software and data) developed and/or made available to Customer under the agreement are vested in DM, its licensors or its suppliers. Indications regarding intellectual property may not be removed or altered and measures for the protection of intellectual property may not be circumvented. If the agreement provides for the grant of a right of use (for example on software), it concerns a non-exclusive and indivisible right of use only for the intended use within the Customer's organisation, which (to the extent permitted by law) does not give any right to source code, reproduction, distribution, reverse engineering, updates, new releases or adaptation.
- Complaints and conformity
Customer is obliged to inspect the delivered goods. Complaints about delivered goods must be notified to DM in writing no later than 8 days after receipt, failing which Customer's right to do so shall lapse. Incomplete delivery does not give Customer the right to refuse the entire delivery. A complaint made by Customer shall never suspend Customer's obligation to pay and take delivery.
- Duration, termination, notice, dissolution
If and to the extent that the concluded agreement is a continuing performance agreement, the agreement is entered into for the term agreed between the parties, failing which the term of one year shall apply. The agreement ends by operation of law after the expiry of the agreed term, unless the agreement is extended in writing by the parties. Each of the parties shall be entitled to dissolve the agreement on account of an attributable failure in respect of an essential performance if the failure persists after the other party has been given written and detailed notice of default and continues to default after the expiry of a set reasonable period. A concluded continuing performance agreement may also be dissolved by either party if the other party is granted a moratorium, bankruptcy is filed for the other party, or the other party is liquidated. Performances already received at the time of dissolution and related payment obligations are not subject to cancellation. An agreement entered into for a definite period cannot be terminated prematurely.
- Limitation of liability
Liability for goods sold and delivered by DM on account of imputable failure shall - irrespective of the legal grounds invoked - always be limited by DM to compensation of direct damage and to a maximum of the value of the goods delivered. DM further only accepts liability with regard to the goods delivered by DM to the extent that DM's relevant supplier is liable towards the latter for the product in question. Liability for an attributable failure to perform the services provided by DM is at all times limited by DM to compensation of direct damage up to a maximum of the amount invoiced by DM in respect of the relevant service in the period in which the harmful event occurs. Any liability for indirect damage (consequential damage, lost turnover, lost savings, claims by Customer's customers, loss of data and loss of business profits expressly included) is not accepted by DM. DM's liability is always limited to the maximum amount that will be paid by DM's liability insurance in the occurring case. The aforementioned exclusions and limitations lapse if and to the extent that the damage is a result of intent or deliberate recklessness on DM's part.
Customer shall indemnify DM against all claims by third parties for product liability due to a defect in a product, service or system delivered by Customer to a third party that (partly) consisted of goods delivered by DM, unless Customer proves that the damage was caused by the goods delivered by DM. Customer indemnifies DM against claims by third parties, including employees of DM, who in connection with the performance of the agreement suffer damage that is the result of acts or omissions of Customer or unsafe situations in Customer's organisation. Customer indemnifies DM against claims of third parties due to Customer's violation of personal data protection regulations.
- Changes and additional work
If DM has performed work at the request or with the prior consent of the Customer that falls outside the content or scope of the agreed work, such work shall be compensated according to DM's usual rates. DM is not obliged to comply with such additional work request.
DM does not warrant that the goods (incl. software and/or operating instructions) are suitable for the actual and/or Customer's intended use upon delivery.
DM cannot guarantee that software, given its nature, will function completely error-free and without defects.
The guarantee does not apply to consumables and disposables.
DM guarantees its products and repairs as stated in the order confirmation / (purchase) agreement / warranty certificate signed by Customer.
To the extent and if a warranty certificate is provided to Customer by DM, the terms and conditions of which differ from what is provided in this article, the terms and conditions stated on the warranty certificate shall prevail.
The warranty shall in any case lapse in the following situations:
- Defects resulting from negligent use or modification, installation or repair of the equipment by others than DM or others than DM-approved repair shops.
- Abuse or misuse by Customer.
- When using non-original (not provided by DM, manufacturer or a party approved by it) materials and disposables.
- When goods are used by untrained personnel and/or untrained third parties.
Any reliance by the Customer on warranty beyond what is provided in an issued warranty is excluded.
- Force majeure
In case of force majeure, DM has the right to suspend the performance of the agreement or to terminate the agreement in whole or in part (extrajudicially or judicially) without Customer being able to claim any right to compensation towards DM on that account. For the purposes of this Article, force majeure includes, but is not limited to: strikes, riots, war, natural disasters and government imposed mandatory regulations that prevent DM from fulfilling the agreement.
DM is at all times entitled to demand from Customer sufficient security for the fulfilment of its payment obligation. Customer shall provide a bank guarantee at DM's first request.
- Samples and equipment provided (including but not limited to: demonstration and replacement equipment
If DM provides (potential) Customer with samples and/or equipment, they shall remain DM's property. (Potential) Customer is not entitled to use the samples and/or equipment provided to (potential) Customer for any other purpose than for which they have apparently been provided. (Potential) Customer is never allowed to sell samples and/or equipment provided by DM to third parties or otherwise make them available to third parties against payment. DM has insured its equipment against loss and theft until 10 days after delivery to (potential) Customer. (Potential) Customer will ensure proper locking of the premises or rooms in which DM's goods are stored. Customer will cooperate in case of a claim under DM's insurance by, amongst others, providing information to the insurer if required by the insurer. (Potential) Customer undertakes to properly insure and keep insured against loss, theft and material damage the equipment made available to her - irrespective of whether it is a sample for demonstration, a temporary replacement equipment during repair of the previous equipment or any other form of equipment made available - immediately after the expiry of 10 days after Dalton Medical makes it available. (Potential) Customer shall make the insurance policy available for inspection upon DM's first request.
- Transfer of rights, use of third parties
Customer is prohibited and not authorised to transfer, sell or pledge its rights and obligations under the agreement to a third party. DM is entitled to sell, transfer or pledge claims to a third party. DM is entitled to engage third parties for the performance of the agreement.
- Change of conditions
DM is entitled to amend the General Terms and Conditions, unless parties have agreed otherwise in writing. Amendments shall be announced at least ten calendar days before coming into force by means of a notification to the Customer.
- Applicable law/forum selection
All agreements with DM are exclusively governed by Dutch law. Applicability of the Vienna Sales Convention is excluded. All disputes will be submitted for judgment to the competent court of the District Court of Zeeland-West Brabant, location Breda. SUPPLEMENTARY PROVISIONS SERVICES
If services (such as maintenance, repair or training) are agreed upon by agreement with DM, the following provisions shall also apply.
DM shall use its best efforts to perform services with care. DM shall perform the services in consultation with Customer, but at its own discretion and, where appropriate, following instructions from the supplier. Unless otherwise agreed, DM is not obliged to follow Customer's instructions. DM shall perform services in relation to the goods (and/or software) mentioned in the agreement, provided they are located in the Benelux. Customer acknowledges that it may be necessary for maintenance that goods (and/or software) are temporarily taken out of service.
DM may at its discretion and at its own initiative provide a replacement device during maintenance and repair services, but Customer is not entitled to do so. The risk of loss, theft and/or damage of Customer's apparatus in DM's possession during maintenance shall be borne by Customer.
Customer shall use or cause to be used the delivered goods in a competent manner. Customer shall, after a malfunction of equipment/software occurs, immediately inform DM in detail. Customer shall cooperate as requested and, if necessary, allow DM's personnel access to the equipment/software. If in DM's opinion the maintenance requires that other peripheral equipment and/or infrastructure and/or software be tested, Customer shall provide the relevant equipment, infrastructure, or software.
- Reporting maintenance and repairs
Customer shall observe designated notification procedures, telephone numbers, e-mail addresses and contact persons for notification of maintenance and repairs. DM may require the appointment of one or more permanent contact persons at Customer's premises for the notification of maintenance and repairs.
If and to the extent that the agreement provides for installing or updating software, Customer acknowledges that an obligation of DM can only relate to installing or updating software that is offered to DM by a supplier. Customer acknowledges that DM cannot independently make software modifications nor can DM guarantee that software functionality will be maintained by an update.
- Service levels
The content and scope of the services to be performed and any service levels, response times, intervals and repair times must be expressly specified in the agreement. In the absence of specification by agreement, the service shall only cover work at the address where the equipment was initially installed, only in respect of equipment supplied by DM and named in the agreement and only in respect of:
- handling malfunctions,
- performing repairs,
- replacement of worn or damaged parts,
- doing regular periodic maintenance
e.g. against the compensation as stipulated in the agreement or the following and after a request for this has been submitted to DM by the Customer.
- Service windows
Unless otherwise agreed, services are only performed from Monday to Friday between 08.30 a.m. and 17.00 p.m., excluding Dutch national holidays.
Telephone support regarding the use and functioning of equipment will only be provided in Dutch, only during the agreed service window and only if the agreement expressly provides for it.
The maintenance price - unless otherwise agreed in writing - includes:
- one regular maintenance service per named appliance per year, including travel expenses and working hours for this maintenance service, including materials specifically required for the regular maintenance (in accordance with the supplier's specifications).
- Unless otherwise agreed, excluded from the maintenance price are:
- Costs for (replacing) consumables, such as batteries;
- Cost of parts not specifically required for regular maintenance;
- Maintenance services concerning the repair of faults or other adjustments caused in whole or in part by attempts to repair or modify/move equipment by others than DM;
- Work on equipment overhaul;
- Moving, relocation, reinstallation;
- Costs for repair and/or replacement of parts due to use contrary to the issued safety regulations, maintenance regulations and/or instructions for use.
The fee for maintenance is due regardless of whether the Customer is operating the equipment.
The maintenance obligations of Dalton Medical do not include work due to investigation, repair or rectification of faults resulting from or related to: user errors, improper use of the equipment or external causes such as faults in network connections, electricity, or connections to software or equipment not covered by the maintenance agreement.
Maintenance obligations do not include:
- investigation or repair of failures due to modification of equipment by third parties, or maintenance carried out by third parties;
- investigation or repair due to use in violation of the applicable conditions or the Customer's failure to have the equipment serviced in a timely manner.
If maintenance is/will be carried out that is not covered by the maintenance obligation, DM is entitled to charge the costs thereof according to the usual rates.
- Warranty on repairs and partsRepair of devices or replacement of parts under a contract and within a given warranty period does not revive or extend the originally issued warranty.
A warranty is only granted on new parts, equipment or software supplied to replace damaged, outdated or worn parts if it concerns a placement or replacement outside the originally granted warranty, in which case the warranty does not extend further (in duration and extent) than the warranty given to DM by the supplier on the item in question.
A warranty period of 14 days applies to repairs.
If the agreement provides for training, the responsibility for the choice and suitability of participants lies with Customer. DM is entitled to cancel, adapt or combine a training or cancel the location of the training. The consequences of cancellation of participation in a training by Customer shall be governed by DM's usual rules. Cancellations or non-appearance do not affect payment obligations. DM determines the content of a training. Any information or documentation provided during a training is the property of DM. Customer acknowledges that the result of training depends on various factors and circumstances, therefore training cannot guarantee any particular result nor can it be guaranteed that a training will at all times provide the manner and extent of use of goods as intended by Customer.
- General, applicability