Article 1 - Applicability
1.1 In these Terms and Conditions (‘Terms’):
‘SMART’ means: SMART Clinical Products BV, which has its registered office at Ekkersrijt 4301, 5692 DJ Son en Breugel, the Netherlands, and is registered at the Chamber of Commerce under number 56643669;
‘Counterparty’: the counterparty to a contract with SMART
1.2 The following Terms are applicable to all contracts in which SMART delivers or makes available products or services on any legal basis whatever - for example under a contract of sale and purchase or contract for work or services - and/or provides some other deliverable.
1.3 These Terms may be deviated from only in writing, in which case the other provisions will remain fully in force.
1.4 These Terms may be invoked by anyone called in by SMART for the performance of the contract.
1.5 Any general terms and conditions which the Counterparty submits to SMART at any time are hereby expressly rejected.
Article 2 - Formation and content of the contract / security / cancellation / non-performance by the Counterparty
2.1 If a quotation contains an offer made without obligation and this offer is accepted by the Counterparty, SMART has the right to retract its offer within two working days of receipt of the acceptance. Subject to this reservation, the contract between SMART and the Counterparty is concluded by virtue of the Counterparty’s unconditional acceptance of SMART’s offer or by virtue of SMART’s acceptance of Counterparty’s order, whether or not subject to conditions. If SMART sends a written confirmation, its contents will be deemed to have been agreed unless the Counterparty protests against this in writing or by some other communication within three working days of the date of the confirmation. As regards prices, SMART refers to the provisions of Article 6.
2.2 Once a contract has been concluded, it may be cancelled at the request of the Counterparty only if SMART signifies its agreement to this in writing, in which case this will always be conditional upon reimbursement of all costs incurred and loss of profit suffered by SMART.
2.3 SMART is always entitled to require the Counterparty to furnish adequate security prior to the conclusion of the contract. SMART is also entitled to do this even after conclusion of the contract if it has a reasonable suspicion that the Counterparty will not fulfil its obligations. This will in any event be the case if the Counterparty, despite receipt of a notice of default, fails to perform any contractual obligation to SMART that has become due and enforceable. If, despite receiving a notice of default, the Counterparty does not provide security, SMART may exercise the rights described in paragraph 6 of this Article.
2.4 The Counterparty is responsible for loss or damage suffered as a consequence of information furnished by the Counterparty which is incorrect or incomplete or not furnished in time.
2.5 SMART has no responsibility for obtaining permits, exemptions, licences etc. which the Counterparty needs in order to accept the delivery of or use any service/product supplied or yet to be supplied by SMART. The Counterparty is itself responsible for and bears the expense and risk of obtaining any such permits, exemptions, licences etc.
2.6 If SMART is entitled to terminate a contract, it will also be entitled to give written notice terminating - or suspending implementation of - any other contracts existing between it and the Counterparty which have not yet been fully performed. In such a case, SMART is also entitled to demand payment as a single lump sum of everything which it is owed by the Counterparty and/or to require cash on delivery for future deliverables. The rights described in this paragraph are without prejudice to any other rights which SMART may have by law.
2.7 If SMART shows the Counterparty - or supplies it with - documentation or an image, sample or model, it does so only to provide a general description of the product or deliverable, which need not therefore exactly comply with this indication, except if and in so far as the parties expressly agree otherwise.
Article 3 - Delivery
3.1 SMART shall use its best endeavours to make delivery within the periods specified in the contract, quotations and catalogues and on any website. However, the delivery periods quoted and agreed by SMART are without obligation and constitute mere approximations, unless expressly agreed otherwise in writing. If delivery or completion does not take place in time, SMART should be given written notice of default and, after consultation with it, allowed a reasonable period in which to perform the contract after all.
3.2 If it proves impossible to make delivery not more than 30 days after the agreed delivery date, SMART shall give the Counterparty timely notice of this and offer it the possibility of terminating the contract, agreeing a new delivery period or accepting delivery of a similar product. In the event of termination, the Counterparty is entitled to cancel the order without incurring costs, in consideration of repayment of any amount already paid.
3.3 The Counterparty is obliged immediately to accept delivery of the purchased product once it is offered to it. If the Counterparty does not accept delivery of the product, the product will be deemed to have been delivered at the moment when SMART has presented it for acceptance (without prejudice to SMART’s right to terminate the contract and/or obtain compensation), and from that moment will be kept by SMART in its possession at the expense and risk of the Counterparty. In such a case SMART is entitled to invoice the Counterparty.
3.4 SMART is entitled to deliver products in instalments on condition that this is done within the agreed period or, as the case may be, within the period extended pursuant to the paragraphs of this Article. Unless agreed otherwise, SMART is always entitled to require cash on delivery.
3.5 The meaning of any terms used in relation to delivery is interpreted by reference to the latest edition of Incoterms.
3.6 If the Counterparty wishes to return products to SMART, it must first obtain SMARTs prior consent. The costs of returning them are borne by the Counterparty and the products are transported at its risk.
3.7 The Counterparty is obliged to notify SMART of any change of address. Until such time as SMART is notified to the contrary, the Counterparty will be deemed to be established at the last address known to SMART and will remain liable for products ordered and delivered.
Article 4 - Shipping and packaging costs
4.1 Unless agreed otherwise, delivery is ex works (SMART’s warehouse in Son, the Netherlands). This is also the case if SMART arranges for a carrier at the request of the Counterparty and charges the Counterparty for the costs of the carriage. The risk of loss or destruction of all or part of the products passes to the Counterparty at the moment when the product leaves SMART’s premises, as provided above. SMART is entitled to charge reasonable shipping and packaging costs. SMART is entitled to periodically modify these costs if warranted by market conditions.
Article 5 - Retention of title
5.1 All deliveries are made subject to retention of title. SMART retains title to products delivered or yet to be delivered to the Counterparty under any contract until the Counterparty:
• has paid in full the price of all such products and services, together with any interest and costs owed, and
• has satisfied all claims in respect of work carried out or yet to be carried out for it by SMART in the context of the relevant contracts, and
• has satisfied the claims which SMART obtains against it if it fails to perform the above-mentioned obligations.
5.2 The Counterparty may not allow the product to which title has been retained to be used in any way whatever as security for claims other than those of SMART.
5.3 Until the moment of transfer of title the Counterparty has a duty to take the greatest possible care of the products. The Counterparty is obliged to insure the products against all possible risks to which they may be exposed from the time of their delivery.
5.4 If a third party alleges that it has any right to or in connection with a product to which title has been retained, the Counterparty is obliged to give that third party immediate notice of SMART’s right and to inform SMART of this immediately.
5.5 The Counterparty does not have the authority to alienate any or all of the delivered products as long as title to them has been retained. As long as the delivered products are subject to retention of title, the Counterparty may not encumber them outside the scope of its normal business operations. In the event of attachment of the products or any other intervention by third parties, the Counterparty is obliged to warn SMART immediately.
5.6 After SMART has invoked its retention of title, it may recover possession of the delivered products. The Counterparty shall permit SMART to enter the place where the products are located.
5.7 In all cases in which SMART invokes (or must invoke) the retention of title, it will be entitled to retain all or part of any advances received from the Counterparty as compensation for loss or damage suffered or yet to be suffered by it.
Article 6 - Prices, payment, costs and offers
6.1 Unless SMART expressly states otherwise in writing, the prices specified by it are:
• based on its prices at the time of conclusion of the contract. If there is a price increase after the conclusion of the contract as a consequence of a change to statutory provisions, SMART shall give the Counterparty notice of this in good time;
• exclusive of VAT, import and export duties and other taxes, levies, disposal contributions and rights;
• exclusive of the costs of assembly, installation and commissioning, unless expressly stated otherwise, in which case the said costs will be specified separately.
6.2 Offers are always made without prejudice.
6.3 SMART is not bound by its offer if its catalogues, mailings or website contain manifest printing, typesetting or programming errors.
6.4 The Counterparty is obliged to pay the invoiced amounts per instalment in advance within 14 days of the date of the invoice, without claiming any right of discount, netting or set-off. If the Counterparty does not make payment within this period, it will be deemed to be in default by law and will owe interest of 1.5% per month over the default period on the outstanding amount from the 15th day after the date of the invoice, with a minimum of € 150.00. For the purposes of the interest calculation, part of a month is treated as a full month.
6.5 All extrajudicial costs connected with the collection of an invoiced amount that has not been paid or not paid in time shall be borne by the counterparty. These extrajudicial costs amount to at least 15% of the principal, subject to a minimum of €150, irrespective of the amount of the extrajudicial costs actually incurred.
6.6 In the event of the Counterparty’s liquidation, bankruptcy or suspension of payments (surseánce van betaling), its obligations will be deemed to be due and enforceable forthwith.
6.7 Payments made by the Counterparty will always be applied first to settle all interest and costs owed and, second, to settle the invoices that have been outstanding for the longest period.
Article 7 - Inspection and complaints
7.1 The Counterparty is obliged to inspect the products or other deliverable immediately after receipt from SMART to ensure that they are sound, in so far as it is reasonably possible to carry out this inspection within such a period, but in any event to check the quantity and ascertain whether there are immediately visible defects. If the Counterparty wishes to lodge a complaint, it shall give SMART written notice of the substance of the complaint in any event within five working days. Every right of complaint lapses if this period is not observed.
7.2 The Counterparty shall thoroughly inspect the product or other deliverable within eight working days of delivery in order to ensure that they are in conformity with what has been agreed and, if a defect is discovered, notify SMART of the substance of the defect in writing within five working days. This rule also applies if the product/deliverable lacks a property which it has been stated to possess in a communication by SMART or if the difference relates to facts of which SMART knew or should have known but which were not notified to the Counterparty.
7.3 If SMART acts upon a complaint of the Counterparty, this does not mean that SMART thereby accepts liability. If it transpires that a complaint is unjustified, SMART will be entitled to charge at its usual rates for the work performed by it and for products delivered by it.
7.4 Where the Counterparty submits a complaint, this does not relieve it of its obligation to make payment or entitle it to suspend any payment.
7.5 The submission of a claim never entitles the Counterparty to suspend performance of its obligations or require compensation or set-off.
7.6 SMART is not responsible for complaints or defects as a consequence of incorrect use of the products - whether or not pursuant to instructions (given remotely).
Article 8 - Intellectual property
8.1 The intellectual property in all products, models, plans, documents and instruments produced, modified or delivered by SMART and the technical information and know-how relating to them shall remain vested in SMART, even if costs have been charged for them or if post-sale improvements have been made to them, whether or not at the request of the Counterparty. Without SMART’s written consent, they may not be wholly or partially copied, other than for internal use by the Counterparty, or shown, made available or in any other way disclosed to third parties, nor may they be used or made available by the Counterparty for any purpose other than that for which they have been supplied by SMART.
8.2 If the intellectual property in products delivered by SMART is vested in the manufacturer of the products, the provisions of the previous paragraph shall also apply for the benefit of the manufacturer. SMART is entitled to protect the intellectual property rights of the manufacturer and, if necessary, to invoke them in law. Where necessary, SMART shall represent the manufacturer.
8.3 In the event of an infringement of this article, the Counterparty shall - without judicial intervention - owe a penalty that is immediately due and payable of EUR 50,000, plus the costs incurred by SMART and any owner of the rights.
Article 9 - Liability
9.1 If the Counterparty has complied with the prescribed rules and the delivered product has been used only by competent personnel and in normal conditions, SMART may, subject to the provisions of these Terms, be held liable in law for imputable breach of contract only during a period of one year from the date of delivery. For the purposes of liability after assembly, installation or commissioning, as the case may be, the date of delivery is deemed to be the time referred to in Article 4 and also the provisions of the subsequent parts of this Article.
9.2 If SMART acknowledges that it has committed an imputable breach of contract - any such acknowledgement always being made without prejudice, except where stated otherwise - or if this is established in some other way, it is entitled to notify the Counterparty, within a reasonable period of the date on which the Counterparty has invoked this breach, as follows:
• that it will, without charge, make a fresh delivery, deliver what is missing or, as the case may be, provide the deliverable anew;
• that it will repair the delivered product without charge, in which connection the replacement parts may, at the reasonable discretion of SMART, be either new or reconditioned.
If SMART performs the contract within a reasonable period after such notification, this means that the contract has been performed correctly and the Counterparty has no right to compensation. Replaced parts become the property of SMART.
9.3 An imputable breach of contract exists only if the product or other deliverable, as the case may be, does not correspond with the specifications given by SMART and accepted - tacitly or otherwise - by the Counterparty. If, however, the Counterparty wishes to be sure of the suitability of the products or service, as the case may be, for the use intended by it, it should accurately inform SMART about this in writing before the conclusion of the contract and the suitability for that use must be agreed in writing if the Counterparty wishes such suitability to form part of the contract.
9.4 If it is considered that SMART owes compensation for any reason whatever, its liability - regardless of its nature - is limited to not more than the price agreed for the relevant product or services (exclusive of VAT), subject to the proviso that liability for consequential loss and damage is excluded in its entirety.
9.5 No liability on the part of SMART will exist - and every claim for an alleged breach of contract will lapse - if the Counterparty itself makes changes and/or modifications and/or repairs to and/or carries out maintenance on the deliverable or arranges for this to be done, or if the deliverable is not or has not been used exactly in accordance with the manufacturer’s guidelines or instructions for use supplied with the deliverable, or is or has been used or treated inexpertly or negligently in some other way or is applied for purposes other than that for which it is intended, including a situation in which the product delivered by SMART is in accordance with the contract but is used in combination with a product or software not delivered by SMART or if the deliverable is or has been used in a manner which SMART could not reasonably have foreseen or has been manufactured in accordance with the Counterparty’s instructions and this has influenced the occurrence of the damage. SMART is not liable for damage that occurs as a consequence of normal wear and tear of the product it has delivered.
9.6 In the event of an imputable breach of contract SMART is liable only for alternative compensation, i.e. compensation for the value of the performance failure. Every liability of SMART for any other form of damage is excluded, including alternative compensation in any form whatever, compensation for indirect damage or damage for loss of profit. SMART is also in any event not liable for loss or damage due to delay, loss or damage due to loss of data, loss or damage on account of the Counterparty being unable to perform obligations owed to third parties, loss or damage as a consequence of the provision of defective cooperation, information or materials and loss or damage due to (incorrect) information or advice given by the Counterparty the contents of which do not form an express part of a written contract.
9.7 The Counterparty shall indemnify SMART against all claims of third parties, for example under any product liability scheme, in so far as the total of these claims exceeds the maximums referred to in this Article.
9.8 In this Article, imputable breach of contract includes an unlawful act.
9.9 The limitations on SMART’s liability also apply to subordinates or third parties used by SMART.
Article 10 - Force majeure / Hindrance
10.1 The following events constitute force majeure, in addition to those specified by law: strike and/or sickness of employees of or third parties used by SMART, non-performance by and/or force majeure affecting SMART’s suppliers, carriers or other third parties involved in the contract, transport delay, natural disaster, bad weather, war or similar situations, civil disturbance, sabotage, boycott, strike, occupation, explosion and escape of dangerous substances or gases, blockade, measures taken by any government authority (including a foreign government) that hinder the contract such as a transport, import or production ban, fire and other accidents in SMART’s premises and other circumstances, in so far as SMART cannot, as a result, be reasonably expected to perform (or continue the performance of) all or part of the contract and there is also a reasonable expectation that the hindrance will last longer than two weeks after the event or events causing it. Force majeure is also deemed to exist where it is reasonably established that the hindrance will definitely make performance of the contract wholly or partly impossible. If there is force majeure, each of the parties is entitled to terminate the contract either in its entirety (provided that the force majeure is sufficiently substantial) or in part (for the part of the contract in respect of which force majeure exists); in the latter case, the parties are obliged to perform the part of the contract that has not been terminated If a Party terminates the contract pursuant to this paragraph, none of the other Parties will owe it any compensation in respect of the terminated part of the contract.
10.2 If there is a hindrance which is not reasonably expected to last for longer than two weeks after the event or events referred to in the previous paragraph, it is not deemed to constitute force majeure and the period within which SMART will make delivery pursuant to the provisions of Article 4 is extended, without any of the parties being entitled to terminate the contract.
Article 11 - Compliance with enclosed instructions for use and precautionary measures for safe use
11.1 The Counterparty shall do everything that may be reasonably expected of it to ensure that the products supplied by SMART are used by it and its staff in accordance with the written information or instructions for use supplied with them and shall also do everything necessary, including the provision of information, to ensure the safe use of the products supplied by SMART.
11.2 The Counterparty shall also ensure that any of its customers and other third parties concerned are informed about how to use products to be supplied by SMART safely and judiciously. When supplying its customers with the equipment, the Counterparty shall also provide them with the instructions for use and other documentation supplied by SMART.
11.3 SMART shall not be liable for loss or damage suffered as a consequence of injudicious use or use contrary to the provisions mentioned in these Terms.
Article 12: Warranty provisions
12.1 The warranty period is six months from the delivery of products by SMART to the Counterparty, unless the Parties have agreed a different period.
12.2 Any defects should be notified by the Counterparty to SMART within 14 days of discovery thereof, such notification including a description of the nature of the defect and the circumstances of its discovery. SMART may then decide either to repair the products or to replace them in their entirety or parts of them. If it does so, it will have no further obligation to pay compensation.
12.3 The Counterparty’s entitlement to warranty will lapse if:
- the defect is due to ordinary wear and tear of the material;
- the defect has been caused by products or negligence of parties other than SMART;
- the instructions for use and/or maintenance have not been observed or not sufficiently
observed;
- attempts at repair have been made by the Counterparty which have not been first approved in writing by SMART.
12.4 Products or parts thereof which are replaced under warranty or in accordance with a repair order thereby become the property of SMART.
Article 13 - Other provisions
13.1 If there is a maintenance procedure or maintenance agreements, the Parties shall record the agreements in writing, possibly as a schedule to the principal contract. These Terms shall apply in full to the maintenance agreements, unless the Parties agree otherwise in writing.
13.2 Where training or courses are arranged, whether or not in combination with the sale of a product, these Terms also apply to the training programme or course, as the case may be.
13.3 SMART is entitled to change these Terms after the expiry of the period of an offer. The Counterparty shall be informed in writing of any such change.
Article 14 - Applicable law and competent court
14.1 All contracts concluded under these Terms are governed by the law of the Netherlands.
14.2 All disputes which may arise between the Parties in relation to these General Terms and Conditions shall be resolved by the court in ‘s-Hertogenbosch, the Netherlands or - if applicable - by the limited jurisdiction court in Eindhoven, the Netherlands.
Adopted in Son, the Netherlands, on 17 March 2015.
