Standard terms of the private limited liability company Ossatec Benelux BV, having its registered office and place of business in Uden, the Netherlands, at Neutronenlaan 54, 5405 NH, entered in the commercial register of the Chamber of Commerce and Industries for Oost-Brabant, under file number 16048075.
Table of contents
- Article 1: Applicability
- Article 2: Offers/Entering into contracts
- Article 3: Execution of the contract
- Article 4: Delivery
- Article 5: Retention of ownership
- Article 6: Complaints
- Article 7: Liability
- Article 8: Unforeseen circumstances
- Article 9: Prices and invoices
- Article 10: Payment
- Article 11: Guarantees
- Article 12: Intellectual property rights
- Article 13: "No cure no pay"
- Article 14: Hire/borrowing
- Article 15: Applicable law and competent court
- Article 16: Derogation
Article 1: Applicability
- These standard terms are applicable to:
- all contracts entered into between Ossatec Benelux BV and other parties (including clients, borrowers of items for use, hirers, buyers and persons treated or to be treated using items from Ossatec Benelux BV), collectively to be referred to hereinafter in the singular as "the customer", as well as all arising activities, including every performance in excess of that which was originally agreed, carried out in the execution of the contract entered into with the customer, all of which is to be understood in the broadest possible terms;
- all offers made by Ossatec Benelux BV to customers and potential future customers;
- all negotiations in relation to a) and b).
- No standard terms or standard purchasing terms of any customer and/or sectoral association will apply. All such terms are explicitly rejected by Ossatec Benelux BV, unless Ossatec Benelux BV has explicitly agreed otherwise in writing.
- If a provision of these standard terms and/or of a written contract between Ossatec Benelux BV and a customer is null void or is annulled, the other provisions of those terms and/or that contract will continue in force notwithstanding. In that event, the parties will be obliged to replace the null and void or annulled provision or to have it replaced, in mutual agreement, in a manner that corresponds insofar as possible with the intention behind the null and void or annulled provision.
- In cases in which there is more than one customer in relation to Ossatec Benelux BV (for instance: orthopaedist, health costs insurer and patient), each of the individual customers is bound jointly and severally by the obligations, responsibilities and liabilities contained in the standard terns.
Article 2: Offers/Entering into contracts
- All offers by Ossatec Benelux BV are made partly on the basis of the information provided by or on behalf of the customer. The information so provided is assumed to be correct and complete. Offers are made entirely without prejudice and subject to contract; customers cannot derive any rights whatsoever from such offers.
- Ossatec Benelux BV is bound only once it has provided written confirmation to the customer of the order placed with it.
- The customer is bound once it has placed an order with Ossatec Benelux BV, accepted an offer made by Ossatec Benelux BV or taken an Ossatec Benelux BV product into use or allowed it to be taken into use. In derogation from Section 6:225(2) of the Dutch Civil Code, an acceptance by the customer that deviates from the offer with respect to minor points will not bind Ossatec Benelux BV; instead a contract will be entered into under the terms and provisions of the offer, unless the customer lodges a written objection with Ossatec Benelux BV against such a contract within 8 days after the written confirmation referred to in Article 2(2).
- Ossatec Benelux BV is not bound by the content of price lists, leaflets, booklets, printed material or any other form of communication, unless referred to explicitly in the contract entered into between the parties. All illustrations, drawings and the like remain the property of Ossatec Benelux BV and may not be copied, issued to third parties or made available to third parties for inspection. All materials referred to in this article must be returned to Ossatec Benelux BV immediately upon its first request to do so.
Article 3: Execution of the contract
- All items to be supplied and/or made available by Ossatec Benelux BV are done so partly on the basis of the information provided by the customer. That information is assumed to be correct and complete. Ossatec Benelux BV is therefore not obliged to provide any compensation for damage and/or expenses that arise due to the incorrectness or incompleteness of such information that has been provided.
- Ossatec Benelux BV is authorised and entitled, if and insofar as it deems such to be in necessary, useful or requisite for the proper execution of the contract, to instruct third parties to execute the contract, fully or partially, or transfer its execution to third parties.
Article 4: Delivery
- The deadlines for delivery specified or agreed by Ossatec Benelux BV are not of the essence. Failure to meet those deadlines will not lead to any claim for compensation, unless compulsory statutory provisions provide otherwise.
- At the moment of delivery, the risk passes to the customer.
- If carriage-paid delivery has been agreed, Ossatec Benelux BV is entitled to charge transit costs to the customer.
- For all transactions, including carriage-paid deliveries, the Ossatec Benelux BV warehouse will be deemed to be the place of delivery. The date of posting will be deemed to be the date of delivery, unless the items are collected by the customer, in which case the date specified on the delivery receipt will apply.
- Ossatec Benelux BV is entitled to make a delivery fully or in successive parts. In the event of the latter, the customer will be invoiced separately for each partial delivery. If the customer fails to pay for a partial delivery, Ossatec Benelux BV is entitled to dissolve the contract insofar as it has not yet executed it, without judicial intervention and without providing the customer with any notice of default, while Ossatec Benelux BV retains its right to compensation.
- If the customer fails to take possession of the items by the delivery deadline, Ossatec Benelux BV will store those items at the customer's account and risk.
Article 5: Retention of ownership
- Ossatec Benelux BV retains the ownership of all items supplied by it until all of its related claims against the customer have been fully met.
- As long as the claims referred to above have not been fully paid, the customer is not authorised or entitled, otherwise than in the normal exercise of its profession or trade, to place items of which Ossatec Benelux BV retains the ownership outside its own physical control, to dispose of such items or to encumber them with any claims.
- As soon as the customer fails to comply with its obligations to Ossatec Benelux BV, Ossatec Benelux BV is authorised and entitled to repossess the items, without further notice of default being required. By accepting these standard terms, the customer authorises Ossatec Benelux BV in that event to enter or order entry to any site where the items are located in order to achieve that aim.
Article 6: Complaints
- All rights the customer claims to have due to failures by Ossatec Benelux BV to comply with its obligations or other defects in items supplied by Ossatec Benelux BV, must be submitted in writing, by registered post, within seven days after the customer discovers the defect or reasonably could have discovered it. Failure to do so will cause the customer's rights in this connection to lapse. The rights of the customer in this connection will also lapse if it attempts to repair an alleged defect or have such a defect repaired without explicit written permission from Ossatec Benelux BV itself.
- Complaints relating to invoices must be submitted by registered post to Ossatec Benelux BV, stating reasons, within ten days after the invoice date. Failure to do so will cause the customer's rights in this connection to lapse.
- Complaints such as those referred to in Articles 6(1) and 6(2) will not cause the payment obligations of the customer to be suspended.
Article 7: Liability
- Except insofar as the exclusion of liability is prohibited by compulsory statutory provisions, Ossatec Benelux BV is not bound to compensate any damage to persons or property of the customer or third parties, including customers and business associates of third parties, to be understood in the broadest possible terms.
- Ossatec Benelux BV is not liable for damage incurred by the customer due to failures by Ossatec Benelux BV, in the absence of intent or gross negligence on the part of Ossatec Benelux BV
- If, taking into account Articles 7(1) and 7(2), Ossatec Benelux BV is liable for any damage to persons or property of the customer or of third parties, the liability of Ossatec Benelux BV will extend no further than:
- to a maximum of the amount of the invoice relating to the supply or making available of the item in question, and not exceeding a maximum of EUR 10,000;
- in the event that the limit imposed by Article 7(3)(a) is inapplicable due to compulsory statutory provisions, up to a maximum of the sum for which Ossatec Benelux BV is insured in that connection.
- The customer indemnifies Ossatec Benelux BV for damages claims of third parties for which Ossatec Benelux BV is not liable due to the provisions of this Article.
- Compensation claims covered by this Article must be notified to Ossatec Benelux BV in writing within one month after they arise or earlier, to the extent that the customer could have become aware of the damage at an earlier stage. Failure to provide such notification will cause all damages claims of the customer to lapse.
- Ossatec Benelux BV is not under any circumstances liable for damage incurred due to the incorrect use of items supplied and/or made available by Ossatec Benelux BV, including full or partial failure to follow directions or instructions issued by Ossatec Benelux BV. The same applies to damage incurred as a consequence of following instructions issued by the customer on the use/application of items supplied or made available by Ossatec Benelux BV.
Article 8: Unforeseen circumstances
- If, after the contract has been entered into, circumstances arise or become known of which Ossatec Benelux BV was unaware or need not have been aware upon entering the contract, as a consequence of which Ossatec Benelux BV is unable to comply in due time with its obligations to the customer, Ossatec Benelux BV will not enter default and will be entitled to suspend compliance with its obligations.
- If, as a consequence of circumstances such as those referred to above, compliance by Ossatec Benelux BV is permanently impossible, Ossatec Benelux BV is entitled to require that the contract be amended in such a manner that its execution by Ossatec Benelux BV remains possible, unless in the circumstances at issue the customer cannot reasonably be required to accept such an amendment and dissolution is justified. In the event of the latter, the contract entered into between the parties will be dissolved without the customer being entitled to make any claim to compensation.
- The circumstances referred to above also include each circumstance, independent of the will of Ossatec Benelux BV, which obstructs compliance with the contract temporarily or permanently, as well as, insofar as such circumstances are not included under the definition itself: war or the threat of war, disorder, industrial action, disasters and natural disasters, accidents, governmental measures, failures by suppliers to deliver or delays in doing so (including suppliers of fuel, energy and water), transit problems, epidemics, fire and technical failures at the premises of Ossatec Benelux BV or its customers or suppliers.
Article 9: Prices and invoices
- Unless explicitly stated otherwise in writing, all prices quoted by Ossatec Benelux BV are based on delivery from the premises of Ossatec Benelux BV or from another location at which the items to be supplied and/or processed are stored by or on behalf of Ossatec Benelux BV. All prices quoted by Ossatec Benelux BV also exclude VAT (turnover tax), other taxes, charges and levies, transit costs and insurance costs.
- Ossatec Benelux BV explicitly reserves the right, during the period of applicability of the contract, to raise the prices it has quoted, if the costs for Ossatec Benelux BV increase as a consequence of circumstances beyond its control, for example in the event of a rise in labour costs, a change in exchange rates, a rise in energy prices or an increase in the prices of materials.
Article 10: Payment
- In the event of a contract with a distributor, half of the payment must be made upon acceptance of the order and the remaining portion must be paid within 30 days after the invoice date, without any entitlement to reduction, set off or suspension. Upon failure to make payment accordingly, the customer will enter default by operation of law and therefore without any further notice of default being required, and interest of 1.5% per calendar month will be payable to Ossatec Benelux BV, in which connection a part of a month will be treated as an entire month. In the event of a contract to borrow items for use and/or a contract with a health costs insurer, a payment period of 30 days must be observed.
- Judicial and extra-judicial collection costs for all sums due to Ossatec Benelux BV will be for the expense of the customer. Extra-judicial costs will be set at the recommended collection fee set by or on behalf of the Dutch Order of Attorneys (Nederlandse Orde van Advocaten), plus VAT, subject to a minimum fee of EUR 250 (exc. VAT) per incident.
- Payments cover firstly the costs and interest referred to above, and subsequently the invoice that has been outstanding the longest.
- Claims for the payment of sums owed to Ossatec Benelux BV will become due immediately upon the customer being declared bankrupt, a moratorium on payments being requested, a petition for placing under guardianship (ondercuratelestelling) being made pending, some or all of its property being attached, in the event of administration being implemented over part or all of its estate, in the event of the customer losing full or partial entitlement to manage or dispose of its estate in any other way or if the customer, if it is a commercial partnership (vennootschap onder firma) or a private limited company (besloten vennootschap), enters liquidation or is dissolved.
- Before or during the execution of the contract, if Ossatec Benelux BV has good grounds to fear that the customer will not be able to fulfil its payment obligations to Ossatec Benelux BV or to fulfil them in due time, Ossatec Benelux BV is entitled to suspend its compliance with its obligations, until the customer, following a request to do so, has provided sufficient security. If the customer remains in default with respect to such a provision of security, Ossatec Benelux BV will be entitled to dissolve the contract. All damage incurred by Ossatec Benelux BV arising from such a suspension and/or dissolution must be compensated by the customer.
Article 11: Guarantees
- Ossatec Benelux BV guarantees that the products it supplies have been produced using proper materials and craftsmanship. If products supplied by Ossatec Benelux BV nevertheless prove to be defective, as a consequence of defects in the manufacture or materials used, Ossatec Benelux BV will have the choice of whether to repair or have such items repaired free of charge, to supply the components necessary for repair or to replace the item in question in its entirety. If repair or replacement is no longer possible, Ossatec Benelux BV will refund the price paid by the customer for the defective item.
- In connection with the foregoing, Ossatec Benelux BV has no further obligations than those stated. As a condition for fulfilling its guarantee obligation, Ossatec Benelux BV may demand that the product qualifying for the guarantee be sent by the customer, postage paid, to Ossatec Benelux BV itself or to an address specified by Ossatec Benelux BV and/or that an order for regular maintenance be given.
- Products or components of products, which are replaced in accordance with this Article, become the property of Ossatec Benelux BV.
- Insofar as no explicit agreement to the contrary has been reached, this guarantee will apply for a maximum period of six months, beginning on the date of delivery.
- Only once Ossatec Benelux BV, following a demand from the customer to do so presented in accordance with Article 6(1) of these standard terms, has failed to fulfil its above-mentioned guarantee obligation, may the customer dissolve the contract in question with respect to the defective portion. The customer can then only claim compensation of a maximum of the sum that it paid to Ossatec Benelux BV for the defective products.
- Different guarantee provisions may apply to certain products, insofar as confirmed in writing by Ossatec Benelux BV.
Article 12: Intellectual property rights
- Ossatec Benelux BV retains all intellectual property rights to all items, designs, sketches, drawings, models, illustrations, programming, offers, instructions for use and the like that it supplies and/or produces.
- The designs, sketches, drawings, models, illustrations, programming, offers, instructions for use, items and the like, remain the property of Ossatec Benelux BV and may not be reproduced, be made known to third parties in any way or be used to generate money in any way, without explicit written permission to do so. Each and every breach of this provision will result in a penalty of EUR 500,000 becoming immediately payable by the customer to Ossatec Benelux BV, without prejudice to the right of Ossatec Benelux BV to claim compensation, insofar as its damage may exceed the amount of the above-mentioned penalty.
- In the event that Ossatec Benelux BV makes use of materials, designs, sketches, drawings, models, illustrations, programming, offers, instructions for use and the like that have been provided by the customer, the customer indemnifies Ossatec Benelux BV against all claims relating to any associated intellectual property rights.
Article 13: "No cure no pay"
- Ossatec Benelux BV may agree with its customer that Ossatec Benelux BV will refund a sum it has invoiced in a particular case if it is shown that the item supplied and/or made available by Ossatec Benelux BV has had no measurable effect during the uninterrupted period of use of at least 18 weeks. In the event that the parties disagree as to whether or not that condition has been fulfilled, the determination will be made exclusively by a medical expert to be designated by Ossatec Benelux BV. The customer may not invoke such an agreement if the failure of any measurable effect to occur is related to incorrect treatment and/or incorrect use. 'Incorrect treatment' includes, but is not limited to, the failure to place the item supplied and/or made available by Ossatec Benelux BV or to place it in due time, the failure to conduct checks and/or the premature removal and/or the premature cessation of the use of such an item.
Article 14: Hire/borrowing
- In the event that an item made available or hired out by Ossatec Benelux BV is or will be hired or borrowed, the provisions of this Article will apply in addition to the other provisions of these standard terms. The hirer/borrower declares that the items it has received in this connection are in a proper condition.
- The hirer/borrower is fully liable to Ossatec Benelux BV for loss, theft, damage or the impaired functioning of any item made available by Ossatec Benelux BV, as well as for all damage and costs that arise in relation to the items during the period of hire or availability, regardless of the cause thereof. Needless to say, in the event of there being more than one hirer/borrower, all of them are jointly and severally liable to Ossatec Benelux BV for the full damage. Damage is understood to mean all direct and indirect costs, including the costs that Ossatec Benelux BV incurs or must incur in relation to the repair or replacement of the item in question, on each occasion to be determined by Ossatec Benelux BV. The hirer/borrower must have adequate insurance coverage for such damage, and Ossatec Benelux BV can and may assume that it has.
- The item hired out or made available by or on behalf of Ossatec Benelux BV must be returned to Ossatec Benelux BV, at its office address, within two days, following the first such request by Ossatec Benelux BV. Failure to do so will make the hirer/borrower liable to pay a penalty of EUR 250 per day for each day upon which the hirer/borrower fails to return the item, without prejudice to the entitlement of Ossatec Benelux BV to full compensation.
- The hirer/borrower is obliged to regularly and frequently check or have checked the functioning of the item referred to in this article and to adhere strictly to all instructions for use.
Article 15: Applicable law and competent court
- All contracts to which these standard terms are applicable and any disputes that may arise from them will be governed by Dutch law. The operation of the provisions of the UN Convention on Contracts for the International Sale of Goods, entered into on 11 April 1980, is explicitly excluded.
- All disputes associated directly or indirectly with contracts governed by these standard terms, will be submitted to the competent court in the district of 's-Hertogenbosch, the Netherlands, unless compulsory statutory provisions provide otherwise.
Article 16: Derogation
- These standard terms and any contract governed by them may be derogated from or supplemented only insofar as such is agreed in writing.