General terms and conditions of sale and delivery of Willems Winkels BV/Condommessage, hereinafter referred to as Condommessage.
Article 1 General provisions
1.1 All offers and deliveries are exclusively subject to the conditions of sale and delivery (‘general conditions’) of Condommessage. These conditions can also be found online at www.condommessage.com.
1.2 The applicability of the general conditions of the buyer are hereby expressly rejected.
1.3 If any of the provisions of these general terms and conditions is null and void or annullable, the provision in question shall be replaced by a provision that is as similar as possible to the original provision. The remaining provisions of these general terms and conditions remain fully applicable.
1.4 Insofar as these general conditions have been drawn up in a different language than Dutch, the Dutch text shall always be decisive in the event of disputes.
Article 2 Offers and tenders
2.1 All quotations and offers issued by Condommessage are subject to confirmation, unless a period of validity is specified in the quotation, in which case the quotation or offer expires at the end of the specified period.
2.2 The agreement is formed by the sending, by post and/or by email/fax, of a written order confirmation by Condommessage, or by the actual performance of the agreement by Condommessage. In the first named, the order confirmation is deemed to accurately reflect the relationship between the parties and the parties are bound to the content of the order confirmation.
2.3 Offers and promises by representatives or buyers of Condommessage are only binding if they have been confirmed by Condommessage in writing.
2.4 Images, catalogues, online presentations, samples and drawings give a general representation of any items in Condommessage product range. The measurements, weights, colour schemes or technical data, in the widest sense of the word, included in the offer are by approximation only, unless expressly guaranteed otherwise in writing. Normal deviations and variants as allowed in the sector are permitted. Colour schemes are related to CMYK.
2.5 The prices stated in a quotation or offer are exclusive of VAT and other government levies, unless expressly indicated otherwise in writing. Unless indicated otherwise in writing by Condommessage, the prices are EXW Incoterm 2010.
2.6 A composite quotation does not oblige Condommessage to carry out a part of the order at a corresponding part of the stated price. Quotations or offers do not automatically apply to future agreements. Set-up costs are € 55 per ordered item exclusive of VAT, unless otherwise stated in writing.
2.7 Product-specific instructions, meaning conditions relating to classified medical aids which have to comply with ISO 4074, with a production of ISO 13485 and CE notified for the EU, including the statement of batch number, renewal date, CE and manufacturer, are deemed to have been accepted by the buyer and forms an integral part of these conditions.
2.8 If an order is cancelled, the actual costs incurred are charged, with a minimum of € 90.
2.9 Condommessage can refuse an order without having to state reasons.
Article 3 Delivery
3.1 A delivery date is never a strict deadline. Condommessage will always aim to comply with the stated delivery date. Exceeding the delivery date does not entitle the buyer to terminate the agreement, wholly or in part, and the buyer is also not entitled to cancel the order or refuse to take receipt of a delivery. Condommessage is entitled to deliver and invoice in instalments.
3.2 A delivery period only commences after the buyer has confirmed to Condommessage that the design is approved.
3.3 Failing to comply with a payment obligation on time, as well as the failure to supply the required information and useable designs on time or which are insufficiently suitable, suspends the delivery obligation.
3.4 If the buyer continues to fail to make payments, Condommessage is not held to further delivery and Condommessage is entitled to terminate the agreement without judicial intervention and without loss of the obligation of the buyer to compensate Condommessage.
3.5 Condommessage is entitled to carry out and charge the buyer overruns or underruns of maximum 10% of the ordered quantities.
3.6 Unless otherwise agreed in writing, Condommessage is free to determine the method of transport.
3.7 The goods to be delivered are always transported at the risk of the buyer. The buyer is responsible for unloading the delivered goods.
3.8 Subsequent to the conclusion of the agreement Condommessage is entitled to increase the price in line with increases in freight costs.
3.9 Unless otherwise agreed in writing, all deliveries will be made to the buyer’s principal place of business.
Article 4 Information and Data
4.1 General definitions and descriptions of products supplied by Condommessage, as published in brochures, lists and other such documents, are simply meant to provide general information and may not be interpreted as an indicationof quality and/or any form of guarantee.
4.2 The buyer guarantees that the information provided by the buyer is correct and complete and legally permitted to be reproduced. The buyer hereby indemnifies Condommessage against claims and/or loss as a result of any unauthorised use of goods forming part of the intellectual property of third parties.
Article 5 Ownership
5.1 All products supplied by Condommessage under the agreement remain the property of Condommessage until the buyer has met all of its payment obligations in relation to Condommessage. These obligations include but are not limited to the payment obligations listed in article 3:92, clause 2, of the Dutch Civil Code.
5.2 The buyer may not resell products supplied by Condommessage nor may it use products supplied by Condommessage as a form of payment, except within the normal course of business. The buyer is not entitled to pledge or otherwise encumber products delivered subject to retention of title.
5.3 If third parties place an attachment order on, or seek to establish or exercise rights in respect of products delivered subject to retention of title, the buyer is obliged to immediately notify Condommessage to this effect (in writing).
5.4 In the event that Condommessage wishes to exercise the proprietary rights referred to in this article, the buyer must agree to unconditionally and irrevocably undertake to allow third parties appointed by Condommessage to enter all areas where products belonging to Condommessage are stored in order to repossess the products.
Article 6 Payment
6.1 Payment must at all times be made without any discount and/or setoff. The payment term stated on the invoice is a strict deadline. If the buyer fails to pay within the payment term, the buyer is expressly in default by operation of law without any further notice of default being required to this end. In that event, Condommessage’s total claim, including the invoices which due dates have not yet passed, become immediately due and payable. Any indicated discounts shall then lapse and the buyer shall then owe interest of 1% per month. In addition, the buyer owes Condommessage all costs, both judicial and extrajudicial, that Condommessage has to incur to enforce payment of its claim. The extrajudicial collection costs are fixed at 15% of the outstanding amount, such without a maximum and with a minimum of € 50.
6.2 Condommessage has the right to allocate the payments made by the buyer first to (debt collection) costs then to outstanding interest and lastly to the principal sum.
6.3 The buyer does not have the right to suspend or set off any payment obligation.
Article 7 Intellectual Property Rights
7.1 All intellectual and industrial property rights in respect of the products delivered pursuant to the agreement, except for the graphical elements supplied by the buyer, are exclusively vested in Condommessage, its licensors or suppliers. The buyer is not permitted to reproduce or copy the products or otherwise infringe the intellectual property rights of Condommessage, its licensors or suppliers.
7.2 The buyer fully indemnifies Condommessage against any claims and demands by third parties in respect of the logos, texts, graphical elements and such like delivered by the buyer and also indemnifies Condommessage against all the costs incurred by Condommessage in connection with these demands and claims.
Article 8 Advertising
8.1 Condommessage delivers in accordance with that which is normal and usual in the trade in the relevant product. The buyer is obliged to inspect the delivered goods immediately the moment the goods are made available to the buyer (or have this inspected). Any defects must have been notified by the buyer and received by Condommessage in writing within 7 days after discovery or after they could reasonably have been discovered. The buyer must give Condommessage the opportunity to investigate a complaint (or to have this investigated).
8.2 If the buyer fails to file a complaint about a defect without delay, it will lose the right to repair, replacement or compensation and must cover all costs incurred by Condommessage.
8.3 If the buyer files a complaint about a defect without delay and the product is found to be faulty, Condommessage will, at its own discretion, replace or arrange the repair of the faulty product within a reasonable period or refund the invoice amount. If Condommessage chooses to replace the product the buyer is obliged to return the replaced product and the ownership of the product to Condommessage, unless Condommessage indicates otherwise in writing.
8.4 The guarantee of Condommessage does not apply if:
8.5 A justified and timely complaint relating to part of the delivered goods does not suspend the payment obligation relating to the other delivered goods, subject to mandatory statutory provisions to the contrary.
Article 9 Liability
9.1 Should Condommessage be liable, this liability is restricted to that provided for in this clause. Condommessage is exclusively liable for direct loss.
9.2 Condommessage is never liable for indirect loss, including consequential loss, loss of profit, lost savings and loss due to business interruption.
9.3 Condommessage is not liable for loss, of whatever nature, caused by Condommessage proceeding on the basis of incorrect and/or incomplete and/or unlawful information provided by or on behalf of the buyer.
9.4 If and insofar as Condommessage should be liable for any loss, Condommessage’s liability is limited to maximum the invoice value of the order, or at any rate to that part of the order to which the liability relates.
9.5 Subject to an intentional act or gross negligence by Condommessage or by one of its managerial staff, it is only liable for direct loss and compensation is limited to the amount paid out by its liability insurer plus the excess.
9.6 The other party’s right to assert claims against and exercise other powers of whatever nature in relation to Condommessage expires six months from the date on which the right arose, or one year from the date on which the buyer became, or could reasonably have become, aware of the existence of the rights and powers in question.
9.7 The buyer is obliged to indemnify Condommessage against claims made by third parties who have incurred losses in connection with the execution of the agreement, unless (and except insofar as) the losses in question were solely caused by intention or gross negligence on the part of Condommessage or its managerial staff.
Article 10 Applicable law and competent court
Condommessage is entitled to use the buyer as a reference without making statements to third parties on the results of the orders.
Article 11 Reference
All legal relationships between Condommessage and the buyer are exclusively governed by Dutch law. The applicability of the Vienna Sales Convention is expressly excluded. Exclusively the competent court in Rotterdam has jurisdiction to hear disputes between Condommessage and the buyer.