General terms and conditions of sale, delivery and payment, hereinafter referred to as “Terms and Conditions”, of Intracare B.V.
Article 1 - Definitions
1. The following definitions apply in these Terms and Conditions:
(a) Agreement: all (distribution) agreements between Intracare and the Purchaser concerning the sale and Delivery of the Products to the Purchaser by Intracare;
(b) Delivery: the transport and delivery of Products, on ex works (Incoterms 2010) basis, unless otherwise agreed up in writing;
(c) Intracare: Intracare B.V., with its registered office in Haaften and its principal place of business at (5466 AZ) Veghel, at Voltaweg 4, the Netherlands, registered with the Chamber of Commerce, entry number 11053848, together with its legal successor(s) and/or the persons or legal entities designated by it, together with the (group) companies and/or participating interest(s) that form part of this company as defined in Book 2, Section 24 (a, b and c) of the Dutch Civil Code;
(d) Parties: Intracare and the Purchaser;
(e) Product(s): the product or products and services sold and supplied to or to be supplied to the Purchaser by Intracare.
(f) Purchaser: the person or legal entity that has concluded an Agreement with Intracare;
The definitions have the same meaning in the singular and the plural.
Article 2 - Scope
1. These Terms and Conditions form part of and apply to all Agreements between Intracare and the Purchaser and also to all new Agreements and additionally all (legal) acts of Intracare with, for or in respect of the Purchaser, including non-contractual obligations.
2. A general reference by the Purchaser to (general) terms and conditions it applies does not lead to them being applicable. Intracare expressly rejects the applicability of the (general) terms and conditions applied by the Purchaser.
3. Agreements made between the Purchaser and Intracare that differ from the substance of the Terms and Conditions applied by Intracare or supplement them are only valid in so far as they have been set down in writing and have been signed by both Parties as approved.
4. If one or more provisions in these Terms and Conditions are invalid or should be invalidated as a whole or in part at any time, the other provisions of these Terms and Conditions continue to apply in full. Intracare and the Purchaser will then consult in order to agree new provisions to replace the invalid or invalidated provisions, the purpose and the effect of the original provisions being taken into account as far as possible.
5. In the event of inconsistency between a provision in an Agreement concluded by Intracare and the Purchaser and a provision in the present Terms and Conditions, the provision in the Agreement will prevail.
Article 3 - Offers and the conclusion of an Agreement
1. All quotations issued by Intracare are without obligation. Intracare has the right to revoke quotations issued in so far as they have not yet been accepted by the Purchaser. Quotations are valid, unless otherwise stated in the quotation, for a maximum of 14 (fourteen) days. The quotation is based on the information provided to Intracare by the Purchaser. Intracare cannot reasonably be bound by obvious mistakes and/or clerical errors in offers, quotations and Agreements.
2. An Agreement between Intracare and a Purchaser is concluded at the time that Intracare has confirmed that it accepts an order and/or Intracare has started performance of an order. If the Purchaser makes reservations with
regard to acceptance of the quotation or makes changes to it, the Agreement will not be concluded, notwithstanding paragraph 2 of this article, until Intracare has informed the Purchaser in writing that it agrees to the nature and content of these reservations or changes. Notwithstanding the provisions of Book 6, Section 225, paragraph 2 of the Dutch Civil Code, acceptance by the Purchaser departing from the quotation or offer in minor respects also does not bind Intracare.
3. Intracare is at all times entitled to refuse an order (in part) without further explanation and without in any way being liable for any damage, for example if Intracare has an indication or suspicion that the Purchaser will not comply with its payment obligations and/or the Products are not available.
Article 4 - Execution
1. Intracare will make every effort to execute the Agreement with care, as appropriate in accordance with the agreement(s) and procedure(s) laid down with the Purchaser in writing. All Intracare’s work will be done on the basis of a best effort obligation, unless and in so far as Intracare has expressly promised a result in the written Agreement and the result concerned has also been described in a sufficiently precise manner.
2. Intracare at all times reserves the right to deploy third parties for the work, if good performance of the work so requires. The applicability of Book 7, Section 404 of the Dutch Civil Code is expressly excluded in this case.
3. The Purchaser guarantees the correctness of the information provided to Intracare for the purposes of executing the Agreement and will always provide all the required information and data in good time. The Purchaser will be held responsible by Intracare for checking (design) work carried out at the Purchaser’s request carefully and for notifying Intracare of any non-conformities or inaccuracies within eight (8) calendar days of receipt thereof in accordance with the provisions in article 8 of these Terms and Conditions.
4. The Products may by their nature and the production process differ from the drawings, technical descriptions, dimensions, designs, scale models and calculations used by Intracare. Non-conformities of minor importance do not give the Purchaser any right to reject the Products, discount, dissolution and/or compensation. The term non-conformities of minor importance means non-conformities that reasonably have no or a minor impact on the Product’s value in use.
Article 5 - Creditworthiness
1. Intracare at all times reserves the right to require the Purchaser to provide security for the fulfilment of its obligations towards Intracare. Intracare’s Delivery obligation will be suspended until the required security has been provided.
Article 6 - Prices
1. The prices quoted by or on behalf of Intracare are in euros, exclusive of VAT, based on delivery ex works (Incoterms 2010), location Veghel, and therefore exclusive of the costs of Delivery, including packaging, shipping, loading and unloading, transport, government levies and insurance, unless the Parties have stated otherwise in the Agreement.
2. The prices given in the catalogues, price lists or other brochures published by Intracare are indicative and do not bind Intracare; the Purchaser cannot derive any right whatever from them. The aforementioned prices may be revised or altered by Intracare at any time.
3. In the case of Deliveries ex works (Incoterms 2010) to be made by Intracare, the prices are based on the wages and material prices applying at the time of the issue of the quotation. Intracare is entitled to pass on changes in cost price factors relating to the Products, such as the prices of raw materials, resources, labour costs, insurances, freight prices, exchange rates, taxes, duties or other government measures to the Purchaser via a price adjustment at any point in time, also after Products have already been puchased. Intracare will notify the Purchaser in writing of a price adjustment. A price adjustment will take immediate effect after Intracare has notified the Purchaser about this price adjustment by sending its price list.
4. Notwithstanding the provisions otherwise appearing in this article, Intracare has the right to increase its prices at any point in time.
Article 7 - Agreement term, Delivery and delivery period
1. The Agreement between Intracare and the Purchaser is concluded for the period defined in the (distribution) Agreement. A delivery period agreed between the Parties is never a deadline.
2. The Products to be supplied by Intracare are regarded as having been delivered at the time that they are ready for shipping ex works (Incoterms 2010), location Veghel, and the Purchaser has been informed about this.
3. The Purchaser is bound to take receipt of the Products at the time of Delivery. Intracare is entitled to carry out the deliveries in partial deliveries and to invoice the Purchaser separately for partial deliveries carried out, such subject to the obligation to reimburse the transport costs associated with the late partial delivery to the Purchaser.
Article 8 - Complaints
1. The Products supplied by Intracare must be carefully checked by the Purchaser for any defects, failures and/or non-conformities, immediately after the time of Delivery. Intracare must be notified in writing of any visible defects within eight (8) calendar days of Delivery. Only those defects that could not in all reasonableness be discovered by the Purchaser within the aforementioned period of time but that are discovered within one (1) month of Delivery must be notified to Intracare in writing within the latter period of time. If this does not happen, the Purchaser will be regarded as having accepted the Products supplied. The aforementioned notification must contain the most detailed possible description of the defect so that Intracare is able to respond appropriately. The Purchaser must give Intracare the opportunity to investigate a complaint or arrange its investigation.
2. A Purchaser making a complaint does not suspend its obligation to pay. In this case the Purchaser remains bound to purchase and pay for the Products otherwise ordered.
3. If the Purchaser complains in good time and it is shown that these defects or failures are a consequence of an attributable failure by Intracare in the fulfilment of its existing obligations to the Purchaser, Intracare will – at its discretion – arrange for repair or replacement of the Products without charge. The Purchaser may only dissolve the Agreement in so far as Intracare is unable to rectify or repair the failures or defects. In the case of replacement the Purchaser is bound to return the replaced Product to Intracare and pass its ownership to Intracare, unless Intracare states otherwise.
Article 9 - Transfer of risk and title; items provided
1. Delivery is ex works (Incoterms 2010), location Veghel. The risk for direct and indirect damage to or caused by the Products supplied will pass to the Purchaser at the time of Delivery.
2. Intracare retains the title to all Products it is to supply or has supplied to the Purchaser up to such time as all the claims that Intracare has or will acquire on the Purchaser, including claims arising from failure to meet claims previously mentioned, have been met in full.
Article 10 - Payment
1. Unless otherwise agreed in writing, all payments by the Purchaser must be made upfront without any suspension, discount or setoff for any reason whatsoever. In the event
Intracare agrees to payment afterwards, payment has to be made within thirty (30) days after the invoice date, failing which the Purchaser will be in default by operation of law and therefore without any further notice of default being required.The date of payment is the date on which the amount owed by the Purchaser is credited to the bank account indicated by Intracare.
2. The Purchaser is not permitted any recourse to compensation or offsetting, unless otherwise expressly agreed between the Parties in writing.
3. If the Purchaser exceeds the payment term stated in paragraph 1 of this article, it is in default with no further notice of default to this effect. From this time the Purchaser will owe Intracare interest based on the statutory commercial interest rate under Book 6, Section 119a of the Dutch Civil Code. All other costs, both judicial and extrajudicial, that Intracare has incurred for the collection of the unpaid amounts are for the Purchaser’s account. The extrajudicial collection costs will be at least 15% (fifteen per cent) of the amount owed by the Purchaser, with a minimum of €250 ex VAT per collection. The above does not affect Intracare’s right to recover the actual damage it is suffering or has suffered from the Purchaser.
4. If Intracare has applied a prompt payment discount, it is only deductible if payment takes place within the period of time given in paragraph 1.
5. Intracare has the right to apply the payments made by the Purchaser first towards the payment of the costs, then towards the payment of the interest due and finally towards the payment of the principal and the accrued interest.
Article 11 - Guarantees
1. The Products to be supplied by Intracare comply with the customary requirements and standards that may reasonably be made of them at the time of Delivery and for which they are intended in normal use. Specific quality requirements must be expressly agreed. Minor variations, customary in the sector or technical and unavoidable, and differences in quality, colour, size or finish are not regarded as being a failure and do not constitute grounds for dissolution or compensation.
2. The guarantee referred to in paragraph 1 of this article applies for a period of six (6) months following Delivery, unless the nature of the Product dictates otherwise and unless the Parties have agreed otherwise in writing. If the guarantee provided by Intracare concerns an item that has been produced by a third party, the guarantee is limited to the guarantee provided by the (third party) producer of that item, unless otherwise stated in writing.
3. Any form of guarantee will lapse if a defect occurs as a consequence of or resulting from improper or incompetent use, consisting for instance of incorrect storage or maintenance by the Purchaser and/or by third parties, or when, without Intracare’s written consent, the Purchaser or third parties have made or have tried to make changes to the Product, other items have been fixed to it that should not have been fixed to it or if they have been processed or treated other than in the prescribed manner.
4. On expiry of the guarantee period, the Purchaser will be charged all the costs of repair and replacement.
Article 12 - Force majeure
1. In addition to that which is understood in law and case law, in these Terms and Conditions the term force majeure means any circumstance independent of the will of the Parties that makes fulfilment of the Agreement impossible permanently or temporarily. The term force majeure in any event means the failure on the part of the Parties to perform (on time) as a result of imminent risk of war, war and kindred risks, riot, fire, flooding, earthquake, water damage, factory occupation, import and export restrictions, government measures, disruptions in the supplies of energy, the inability to fulfil the guarantee, lack of staff, strikes, staff sickness, late delivery or unsuitability of raw and other materials, attributable failures or wrongful conduct of Intracare’s subcontractors or third parties engaged by Intracare or solvency or liquidity problems on the part of Intracare.
2. During the period that the force majeure persists, the Parties may suspend their obligations under the Agreement. If this period lasts more than two (2) months, either Party is entitled to dissolve the Agreement, without any obligation to compensate the other Party for damage. The Purchaser must reimburse Intracare for the costs already incurred by Intracare.
Article 13 - Liability
1. Neither Intracare, nor its staff, nor third parties engaged by Intracare is or are liable for any damage for whatever reason and of whatever kind suffered by the Purchaser or any third party in connection with the Delivery of Products, the use of Products, the possession of Products or defects in Products supplied, including inadequate fulfilment of the obligation to repair or resupply, all this except for a deliberate act or deliberate recklessness on the part of Intracare.
2. If and in so far as any liability should exist for Intracare under paragraph 1, it is liable exclusively for direct damage. Under no circumstances is indirect damage suffered by the Purchaser, including consequential damage, consisting for instance (but not limited to) transport costs, travel and subsistence expenses, loss of profit, loss of turnover or loss of income, eligible for reimbursement by Intracare.
3. Intracare’s liability for direct damage is in any event limited in all cases to the obligation to resupply or to the obligation to pay the average invoice amount relating to the Agreement over the last six (6) months preceding the damaging fact, with a maximum of the amount that Intracare’s insurance pays out where applicable (plus the excess amount), all at Intracare’s discretion.
4. There is no question of a failure, attributable or otherwise, and therefore no liability on the part of Intracare as long as the Purchaser is in default to Intracare, the Products have been exposed to abnormal conditions or have been used carelessly or incompetently or the Products have been stored for longer than normal and it is likely that loss of quality has occurred as a result.
5. The Purchaser indemnifies Intracare against all claims of third parties that suffer damage in connection with the execution of the Agreement and the cause of which is attributable to a party other than Intracare and against third-party claims connected with the contracts concluded between the Purchaser and those third parties.
6. Notwithstanding the provisions in article 8 about complaints and the provisions in this article about Intracare’s liability, the time limit or expiry period of all claims and defences in respect of Intracare and the third parties involved by Intracare in the execution of the Agreement is one (1) year or any shorter period as the law provides.
Article - 14 Intellectual and industrial property rights
1. On the conclusion of the Agreement Intracare retains all the intellectual property rights and database rights relating to the Product(s) to be supplied in the context of executing the Agreement. Only if this has been expressly agreed will Intracare grant a non-exclusive licence for any of its intellectual property rights on the Products.
2. Intracare retains all the rights, including but not limited to intellectual property rights and database rights, to all the items provided to the Purchaser by Intracare or third parties, such as – but not limited to – documents, titles, logos, articles, copies, sketches, drawings, models, photographic recordings, lithographs, films, information carriers, computer software, address files and/or data files. The Purchaser is only entitled to use these items in the context of fulfilling its obligations under the Agreement.
3. The Purchaser will return all the copies, sketches, drawings, models, photographic recordings, lithographs, films, information carriers, computer software and/or data files, approved or rejected, to Intracare, in each case at Intracare’s request and within one (1) month of Delivery, or at Intracare’s request archive them or following Intracare’s written consent destroy them, in which case Intracare must be provided with proof of the destruction. The Purchaser is not entitled to make any disclosure or duplication in any form whatever without Intracare’s written consent. Returning these items is at the Purchaser’s risk and expense.
4. The Purchaser guarantees that it will not breach the intellectual property rights of Intracare or third parties and indemnifies Intracare and its customers in respect of any breach, including comparable claims with regard to know-how, unlawful competition, etc.
Article 15 - Confidentiality
1. The Purchaser, its staff and third parties engaged by it are obliged to maintain the strictest confidence with regard to all information concerning Intracare that they should acquire in connection with the Agreement or its execution, including the existence of the Agreement and the nature of, the reason for and the result of the work done. The obligation to maintain confidence remains in effect once execution of the Agreement is complete.
2. With regard to the information provided to the Purchaser by Intracare, the Purchaser undertakes:
(a) to take account of all reasonable measures for safe keeping;
(b) only to disseminate the information acquired in accordance with the need to know principle; and
(c) not to retain the information for any longer than is reasonably necessary for the execution of the Agreement.
3. The Purchaser must ensure that its staff and third parties it engages sign a non-disclosure agreement covering the provisions in this article. At Intracare’s request the Purchaser will provide Intracare with copies of these non-disclosure agreements.
Article 16 - Dissolution
1. If the Purchaser fails to execute the Agreement properly or a deadline in the execution of an Agreement is exceeded, as a result of which in Intracare’s opinion it is established that the Purchaser will not execute the Agreement or will not do so properly, Intracare, without prejudice to its other rights, has the right to dissolve the Agreement immediately as a whole or in part, or to, if applicable, withdraw exclusive distribution rights, without further notice of default by simple notice to the Purchaser.
2. Intracare is entitled to dissolve the Agreement with immediate effect, without observing any notice period or paying any compensation for damage, where (in respect of or in the name of) the Purchaser: a petition has been filed for (temporary) court protection from creditors or bankruptcy or when the Purchaser has actually been granted court protection from creditors or bankruptcy; the business has been closed down or if the company is in liquidation; any necessary permits have been lost, (a part of) the business property or items intended for the execution of the Agreement has or have been seized; or (in the case of a natural person) the Purchaser has died; a (legal) merger takes place; a substantial part of the control is lost to a third party.
3. If the cases referred to above under paragraphs 1 and/or 2 occur, Intracare’s claims on the Purchaser are immediately payable in full.
4. If Intracare dissolves the Agreement, the Purchaser must at its own expense immediately return all the Products supplied to it as supplied in error, unless the Purchaser has fulfilled all its obligations, as a result of which there is no further retention of title on these Products.
5. Dissolution as referred to in this article will not have the consequence that rights of Intracare, which in Intracare’s reasonable opinion are by their nature intended to remain in force following dissolution, will end.
Article 17 - Transfer of rights and obligations
1. The Purchaser is not entitled to transfer any right arising from the Agreement to third parties without Intracare’s prior written consent. In addition to effect under the law of obligations, the limitation of transferability also has property law effect as referred to in Book 3, Section 83, paragraph 2 of the Dutch Civil Code. The Purchaser gives Intracare the right in advance to transfer the rights arising from the Agreements to third parties as a whole or in part.
Article 18 - Product recall
1. The Purchaser is obliged to collect and keep the information necessary for tracing the Products. Using this ‘traceability system’ it must in any event be possible for the Purchaser to tell Intracare immediately (where applicable):
(a) which Products specifically originate from Intracare;
(b) to which customers the Products supplied by Intracare have been resold.
2. If the Purchaser becomes aware of a defect or a suspicion of a defect in the Products supplied, it must inform Intracare about it immediately of its own volition. The Purchaser must in any event state:
(a) the type of defect;
(b) the production data of the potentially unsafe Products supplied by Intracare;
(c) the names of the customers of the potentially unsafe Products supplied by Intracare;
(d) any other information that may be important.
3. If in Intracare’s opinion further information is needed for the investigation into a potentially unsafe Product and/or the measures to be taken, the Purchaser must on request provide all the relevant information that it has or that it could reasonably have at its disposal without charge.
4. Intracare and the Purchaser will then by mutual agreement investigate whether and if so what measures are necessary to avert the danger that has arisen through a potential defect in the Product supplied by Intracare. The measures to be taken may include a product recall.
5. Intracare may require the Purchaser to carry out a product recall. All the costs associated with this are for the Purchaser’s account, unless the cause of the product recall is attributable to a deliberate act or deliberate recklessness by Intracare or in so far as Intracare’s liability results from mandatory law.
Article 19 - Governing law and dispute resolution
1. All Agreements to which these Terms and Conditions apply and the obligations and disputes arising from them are governed exclusively by Dutch law, even if an obligation is fulfilled as a whole or in part abroad or if a party involved in the legal relationship has its place of business there. The applicability of the Vienna Sales Convention is excluded.
2. All disputes with Purchasers resulting from Agreements, or contracts that may be the consequence thereof, will be submitted exclusively to the competent court of the district of Oost-Brabant, location ‘s-Hertogenbosch, in the Netherlands.