General Conditions MDS BV for deliveries to Businesses

General Conditions MDS BV for Deliveries to Businesses

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Table of Contents:

Article   1 – General
Article   2 – Quotations and Offers
Article   3 – Contract duration, Delivery Periods, Implementation and Amendments to the Contract
Article   4 – Suspension, Dissolution and Premature Termination of the Contract
Article   5 – Force Majeure
Article   6 – Payment and Collection Costs
Article   7 – Retention of Title
Article   8 – Guarantees, Investigation and Complaints, Limitation Period
Article   9 – Liability
Article   10 –Transfer of Risk
Article   11 – Indemnification
Article   12 – Intellectual Property Rights
Article   13 – Applicable Law and Disputes
Article   14 – Source and Amendments to General Conditions



MDS BV

Postal address:
Postbus 123
9750 AC Haren

Visiting address:
Rijksstraatweg 317
9752 CG Haren

Telephone number: +31 (0)6-40971458
Fax Number: +31 (0)50-2301785

E-mail address: [email protected]

COC number: 56850638

VAT number: NL852331307B01

www.medicaldisposablesstore.com

www.nosetubes.com

www.medicaldisposablesstore.nl

www.nosetubes.nl

www.medicaldisposablesstore.de

www.nosetubes.de

www.mds-educatie.nl

 www.larycareline.nl

www.premium-scissors.com

www.trachcareline.nl

 

Article 1.   General

  1. These general conditions govern every quotation, offer and contract between MDS BV, hereinafter referred to as the “User”, and an Other Party for whom the User has declared these general conditions applicable, insofar as the parties have not deviated explicitly and in writing from these general conditions.
  2. These general conditions also apply to all contracts with the User, for the implementation of which the User is required to engage third parties.
  3. These general conditions have also been written for the employees of the User and its Board.
  4. The applicability of any purchasing or other conditions of the Other Party is expressly rejected.
  5. In the event one or more provisions of these general conditions become invalid or void in full or in part, the remaining provisions of these general conditions shall continue to apply in full. In that case, the User and the Other Party shall enter into consultation in order to reach agreement on new provisions to replace the invalid or void ones, with due regard to the purpose and the tenor of the original provisions where possible.
  6. In the event of there being a lack of clarity concerning the interpretation of one or more provisions of these general conditions, the provision shall be interpreted in keeping with the spirit of these provisions.
  7. If a situation not covered by these general conditions arises between the parties, this situation will be judged in keeping with the spirit of these general conditions.
  8. In cases where the User does not require strict compliance with these general conditions, this should not be taken to mean that the provisions do not apply or that the User in any way relinquishes the right to require strict compliance with the provisions of these general conditions in other cases.


 
Article 2.   Quotations and Offer

  1. All quotations and offers of the User are without obligation, unless an acceptance period has been stipulated in the quotation. A quotation or offer shall be null and void if the product to which the quotation or the offer pertains is no longer available in the meantime.
  2. The User cannot be bound by its quotations or offers if the Other Party can reasonably be expected to understand that the quotations or offers or a component thereof contain an evident mistake or clerical error.
  3. Unless stated otherwise, the prices stated in a quotation or offer are exclusive of VAT and other government levies to be incurred in the context of the contract, including travel and accommodation, shipping and administration costs.
  4. If the acceptance differs from the quotation or the offer (whether or not on minor points), the User is not bound by those different points. Unless stated otherwise by the User, in that case the contract is not concluded in accordance with those different points.
  5. A composite price statement does not oblige the User to perform part of an order at a corresponding proportion of the stated price. Offers and quotations do not apply automatically to future orders.



Article 3.   Contract Duration; Delivery Periods, Implementation and Amendments to the Contract

  1. The contract between the User and the Other Party is entered into for an indefinite period of time, unless the nature of the contract provides otherwise or if the parties have agreed otherwise explicitly and in writing.
  2. If a period has been agreed or stipulated for the completion of certain work or for the delivery of certain goods, that shall not under any circumstances be regarded as a firm deadline. In the event of a period being exceeded, the Other Party must issue the User with a written notice of default. The User shall be offered a reasonable period of time in which to implement the contract.
  3. If the User requires details from the Other Party to implement the contract, the implementation period only commences after the Other Party has made these available to the User correctly and completely.
  4. Delivery shall take place ex-works of the User. The Other Party is obliged to accept goods at the time at which they are made available to him. If the Other Party refuses to take delivery or fails to provide information or instructions required for the delivery, the User shall be entitled to store the goods at the Other Party’s expense and risk.
  5. The User is entitled to have certain activities carried out by third parties.
  6. The User is entitled to implement the contract in various phases and to invoice the completed phases separately.
  7. If it has been agreed that the contract will be executed in stages, the User reserves the right to suspend execution of the components forming part of a subsequent stage until the Other Party has approved the results of the preceding stage in writing.
  8. If during the execution of the contract it becomes apparent that it is necessary to make amendments or additions to the contract so that it can be correctly executed, the parties shall adapt or amend the contract under consultation. If the nature, scope or content of the contract is altered, whether or not at the request or on the instructions of the Other Party, the competent authorities, etc., and the contract is thus altered in terms of its quality and/or quantity, this may also have implications for what was originally agreed. The originally agreed price may be increased or reduced for that reason. The User shall provide a price indication in advance wherever possible. An amendment to the contract may also result in a change to the originally indicated time of execution. The Other Party accepts the possibility of amendment to the contract, including the change to the price and execution period.
  9. If the contract is amended, including an addition, the User will be entitled to suspend its implementation until the amendment has been approved by the User’s authorized person and the Other Party has approved the price and other conditions indicated for performance of the contract, including the time at which the contract is to be implemented in that case. Failure to implement the amended contract or to do so immediately will not constitute a breach of contract on the User's part and neither will this constitute a reason for the Other Party to terminate the contract. Without thus being held in default, the User may refuse a request to have the contract amended if this could have implications in terms of quality and/or quantity for the work or goods to be delivered in that context, for example.
  10. If the Other Party fails to properly meet its obligations to the User, the Other Party will be liable for all losses (including costs) suffered by the User as a direct or indirect consequence.
  11. If the User agrees on a fixed price with the Other Party, the User shall nonetheless have the right at all times to increase the price without the Other Party thus gaining the right to dissolve the contract for that reason if the price rise is based on an increase in the price of raw materials, salaries, etc., arising from a legal or regulatory authority or obligation or on other grounds that could not reasonably have been foreseen upon entering into the contract.
  12. If the price rise other than as a consequence of a contractual amendment exceeds 10% and is introduced within three months of entering into the contract, the Other Party with a right to invoke the provisions of title 5, part 3 of Book 6 of the Netherlands Civil Code is entitled to dissolve the contract by means of a written declaration to that effect unless the User is in that case willing to execute the contract on the basis of what was originally agreed or if the price rise is based on an authority or legal obligation of the User or if it has been stipulated that delivery will take place longer than three months after the purchase.
  13. The User is authorized to suspend compliance with its obligations or to dissolve the contract if:


 
Article 4.   Suspension, Dissolution and Premature Termination of the Contract

-    the Other Party fails to meet its contractual obligations or meet them in full or on time;

-    after entering into the contract, the User becomes aware of circumstances that give the User good grounds to presume that the Other Party will not meet its obligations;

-    upon entering into the contract the Other Party was required to furnish security for meeting its contractual obligations and has failed to provide that or sufficient security;

-    If, due to a delay on the part of the Other Party, the User can no longer be required to comply with the contract under the originally agreed conditions.

  1. The User is also authorized to dissolve the contract if circumstances arise that are of such a nature that compliance with the contract is no longer possible or if circumstances arise of such a nature that the User cannot reasonably be expected to maintain the contract in unamended form.
  2. If the contract is dissolved, the claims of the User on the Other Party shall become immediately due and payable. If the User suspends compliance with its obligations, it shall retain its claims by law and under the contract.
  3. If the User suspends or dissolves the contract, it will not in any way be obliged to compensate losses and costs, regardless of their cause.
  4. If the dissolution can be attributed to the Other Party, the User will be entitled to compensation for the losses, including the costs, directly and indirectly thus caused.
  5. If the Other Party does not comply with its obligations resulting from this contract and this non-compliance justifies dissolution, the User is entitled to dissolve the contract immediately and with immediate effect, without any obligations to pay damages or indemnity, whilst the Other Party, is obliged to damages or indemnity due to breach of contract.
  6. If the contract is prematurely terminated by the User, the User will have the work that has yet to be completed transferred to third parties in consultation with the Other Party. This will not apply if the termination can be attributed to the Other Party. If the transfer of the work causes the User to incur additional costs, these costs will be charged to the Other Party. The Other Party shall be obliged to pay these costs within the stipulated period unless the User gives indication to the contrary.
  7. In the event of liquidation, suspension of payment (or an application to that effect) or bankruptcy, attachment – if and insofar as the attachment is not withdrawn within three months – on the part of the Other Party, or if debt rescheduling or another circumstance as a result of which the Other Party no longer has unfettered access to its assets, the User will be free to terminate the contract immediately and with direct effect or to cancel the order or contract without being obliged in any way to pay any compensation for damages. The claims of the User on the Other Party will in that case become immediately due and payable.
  8. If the Other Party cancels a placed order in full or in part, the goods ordered or prepared for that purpose will be charged in full to the Other Party, with the addition of any delivery, removal and supply costs and the labour time reserved for implementing the contract.
  9. Special Versions: The prices will be based on our cost price. Orders for special versions can only be cancelled if the User has consented explicitly in advance. The User is not obliged to check whether samples, blueprints, and all other guidelines that serve as guidelines for manufacturing have legal protection. The responsibility to do so rests with the Other Party.


 
Article  5.   Force Majeure

  1. The User is not obliged to comply with any obligation to the Other Party if prevented from doing so as a result of a circumstance that is beyond its control and for which they cannot be held accountable by virtue of the law, a juristic act or generally accepted views.
  2. In these general conditions, force majeure is defined - in addition to that which is deemed as such by law and legal precedent - as all external circumstances, foreseen or unforeseen, that are beyond the control of the User but which prevent the User from meeting his obligations. Such situations include any strike in the company of the User or that of third parties. The User is also entitled to invoke force majeure if the circumstance preventing (further) compliance occurs after the User should have met his obligations.
  3. The User can suspend their contractual obligations during the period of force majeure. If the period of force majeure lasts for longer than two months, either party shall be entitled to dissolve the contract without being obliged to pay any compensation for damages to the other party.
  4. If the User has already partly met or will partly meet its contractual obligations when the period of force majeure begins and independent value can be attached to the obligations complied with or to be complied with, the User reserves the right to separately charge for the obligations already complied with or to be complied with. The Other Party is obliged to pay that invoice as though it were for a separate contract.


 
Article 6.   Payment and Collection Costs

  1. Invoices are payable within 14 days of the invoice date in a manner indicated by the User and in the currency stated in the invoice, unless indicated otherwise in writing by the User. The User is entitled to send periodic invoices.
  2. If the Other Party fails to remit payment of the invoice on time, the Other Party shall be held in default by operation of law. The Other Party will in that case be liable for the payment of 4% monthly interest, unless the statutory interest rate is higher, in which case the statutory interest rate will apply. The interest over the due and payable amount will be calculated from the time at which the Other Party is held in default until the time of full and final settlement.
  3. The User is entitled to have payments made by the Other Party extend first to payment of costs, then to outstanding interest and finally the principal amount and the current interest.
  4. The User may refuse a payment offer, without that being in default, if the Other Party indicates a different order of allocation for payment. The User may refuse full payment of the principal amount if the due and current interest and debt collection costs are not remitted at the same time.
  5. The Other Party is not under any circumstances entitled to set off the amount that it owes to the User.
  6. Objections to the amount of the invoice shall not suspend the payment obligation. An Other Party who is not entitled to base an objection of part 6.5.3 (articles 231 to 247 of Book 6 of the Netherlands Civil Code) are not entitled to suspend payment of an invoice for any other reason either.
  7. If the Other Party defaults or (temporarily) fails to meet any of its obligations, all reasonable costs of obtaining payment without legal recourse shall be at the Other Party’s expense. The extrajudicial payment costs shall be calculated on the basis of standard Dutch collection practice at that time. However if the User has reasonably incurred additional debt-collection costs the costs actually incurred will be eligible for compensation. Any judicial and execution costs incurred will also be recovered from the Other Party. The Other Party shall also be liable for the payment of interest over the payable debt collection costs.


 
Article 7.   Retention of Title

  1. All goods delivered by the User in the context of the contract will remain the User’s property until the Other Party has met in full all of its obligations under the contract (or contracts) entered into with the User.
  2. Goods delivered by the User that come under the retention of title pursuant to paragraph 1 may not be sold on and may not under any circumstances be used as a means of payment. The Other Party is not authorized to pledge or encumber in any other way the goods covered by retention of title.
  3. The Other Party shall be required at all times to do all that can reasonably be expected of him to secure the User’s retention of title.
  4. In the event of third parties imposing an attachment on the goods delivered under retention of title or setting out to establish or invoke any rights to them, the Other Party is obliged to notify the User of that without delay.
  5. The Other Party undertakes to insure goods delivered under retention of title and to keep them insured against fire, explosion and water damage and against theft and to issue the insurance policy for inspection on the User's first request to that effect. In the event of an insurance pay-out being made, the User will be entitled to receive the amounts concerned. The Other Party undertakes, where necessary, in advance to the User to cooperate with all that is or proves to be necessary or desirable in this context.
  6. In the event of the User wishing to exercise its property rights as provided for in this article, the Other Party hereby gives unconditional and irrevocable permission, now for then, for the User or third parties engaged by the User to enter the places where the property of the User is located and to repossess that property.


 
Article 8.   Guarantees, Investigation and Complaints, Limitation Period

  1. The goods to be delivered by the User shall comply with the customary requirements and standards that may reasonably be imposed upon them at the time of delivery and for which they are destined during normal use in the Netherlands or other countries. The guarantee referred to in this Article applies to goods intended for use in the Netherlands. If the goods are used outside of the Netherlands the Other Party should himself verify whether they are suitable for usage there and meet the conditions set for them there. In that case the User may impose other guarantee and other conditions with regard to the goods to be delivered or work to be carried out.
  2. The guarantee provided for in paragraph 1 of this article applies for a period of two weeks following delivery, unless dictated otherwise by the nature of the delivered goods or the parties have reached agreement to the contrary. If the guarantee issued by the User concerns goods that have been produced by a third party, the guarantee shall be limited to that issued by the producer of the goods unless statement is made to the contrary.
  3. All forms of guarantee shall be null and void if a defect has been caused by or arises from inexpert or improper use, use after the sell-by date, incorrect storage or maintenance of the goods by the Other Party and/or by third parties if, without the written approval of the User, the Other Party or third parties have made changes to the goods or attempted to do so, or have attached them to other goods to which they should not be attached or if they have been processed or treated other than in the prescribed manner. The Other Party will also not have any claim on the guarantee if the defect is caused by or is the result of circumstances beyond the User’s control, including weather conditions (such as but not limited to extreme rainfall or temperatures), etc. or has been caused by weathering and/or normal wear and tear.
  4. The Other Party is bound to investigate or to have investigated the delivered goods immediately at the time the goods are made available to him or the relevant works have been carried out. In so doing the Other Party should ascertain whether the quality and quantity of the delivered goods comply with the contracts and comply with the requirements agreed by the parties in that respect. Any visible defects should be reported in writing to the User within seven days of delivery. Any non-visible defects should be reported immediately to the User, in any case no later than within fourteen days of their discovery. The report must contain the most detailed possible description of the defect in order to enable the User to respond adequately. The Other Party shall give the User the opportunity to investigate a complaint (or have this done by others).
  5. If the Other Party lodges a complaint in time, this will not suspend its payment obligation. The Other Party will in that case also remain obliged to accept and pay for the other goods ordered.
  6. If a defect is reported at a later date, the Other Party will no longer be entitled to repair, replacement or compensation.
  7. If it is established that goods are defective and a complaint has been lodged on time, the User will repair or arrange the repair of the goods or pay compensation instead to the Other Party within a reasonable period following the return of the goods or, if return is not reasonably possible, written notification of the defect by the Other Party, to be decided at the User’s discretion. In the event of the goods being replaced the Other Party will be obliged to return the replaced goods to the User and to transfer their ownership to the User unless the User indicates to the contrary.
  8. If it is established that the complaint is unfounded, the costs thus incurred, including the inspection costs thus incurred by the User, shall be charged in full to the Other Party.
  9. Following expiry of the guarantee period all costs of repair or replacement, including administrative, shipment and call-out costs, shall be charged to the Other Party.
  10. Contrary to the statutory prescription period, the prescription period for all claims and defences in respect of the User and third parties engaged for the User for the implementation of a contract shall be one year.
  11. Returns Returns of goods must be consulted in advance with the User. If the goods are returned unused and undamaged in the original packaging by the Other Party. If the invoice amount is credited, if necessary less the costs incurred by the User. These costs are maximum 20% of the total invoice amount. The costs associated with the return may never be at the User's expense. Special versions and uncommon items cannot be taken back by User unreservedly.


 
Article 9.   Liability

  1. In the event of the User being held liable, that liability shall be limited to the provisions of this clause.
  2. The User cannot be held liable for losses of any nature whatsoever caused by the User assuming incorrect and/or incomplete information provided by or on behalf of the Other Party.
  3. If the User is held liable for any form of loss, the liability of the User shall be limited to a maximum of double the invoice value or to the part of the order to which the liability relates.
  4. The liability of the User is always limited to the amount paid out by its insurance company.
  5. The User is only liable for direct losses.
  6. Direct losses are exclusively defined as the reasonable costs involved in establishing the cause and extent of the loss insofar as this relates to losses within the meaning of these conditions, any reasonable costs incurred in having the User’s faulty performance meet the contractual provisions, insofar as they can be attributed to the User and reasonable costs incurred for the prevention or limitation of losses, provided that the Other Party demonstrates that these costs have led to the direct loss within the meaning of these general conditions being limited.
  7. The User cannot under any circumstances be held liable for indirect losses, including consequential losses, loss of income, missed savings or losses caused by business stagnation.
  8. The limitations of liability set out in these conditions are not applicable in cases where the loss can be attributed to intentional act or omission or gross negligence on the part of the User or its managerial subordinates.


 

Article 10.   Transfer of Risk

  1. The risk of loss, damage or decline in value shall transfer to the Other Party as soon as the goods are placed at the disposal of the Other Party.


 

Article 11.   Indemnification

  1. The Other Party indemnifies the User against any claims of third parties who suffer losses related to the implementation of the contract for which a party other than the User can be held accountable.
  2. If the User is held accountable in this respect by third parties, the Other Party shall be obliged to assist the User both judicially and extrajudicially and to do all that can be expected of him in that case without delay. If the Other Party fails to take adequate measures, the User will be entitled to take such measures himself without any notice of default being required. All costs and losses thus suffered by the User and third parties shall be fully at the expense and risk of the Other Party.


 
Article 12.   Intellectual Property Rights

  1. The User reserves the rights and powers assigned to him under the Dutch Copyright Act and other intellectual property legislation and regulations. The User is entitled to use information received through the implementation of the work for other purposes provided that doing so does not result in confidential information of the Other Party being disclosed to third parties.


 

Article 13.   Applicable Law and Disputes

  1. All legal relationships to which the User is a party shall be governed exclusively by Dutch law, even if an obligation is implemented in full or in part abroad or if the other party to the legal relationship is domiciled abroad. The applicability of the Vienna Sales Convention is specifically excluded.
  2. In the absence of mandatory rules of law to the contrary, the court in the User's registered office has exclusive competent jurisdiction. Nonetheless, the User is entitled to refer the disputes to the court with competent jurisdiction by law.
  3. The parties shall not refer a matter to court until they have done their utmost to resolve the dispute in mutual consultation.


 

Article 14.   Source and Amendments to General Conditions

  1. These general conditions have been filed with the Chamber of Commerce in Groningen, The Netherlands.
  2. The most recently filed version or the version that was applicable at the time at which the legal relationship with the User was formed shall be applicable at all times.
  3. The Dutch version of the general conditions shall take precedence at all times as regards its interpretation.