Terms of Service
These general conditions apply to any offer of a product and/or service to, an agreement with and/or any other legal relationship between Carephar (hereinafter referred to as Carephar) on the one hand and an other party (hereinafter referred to as Other Party) on the other hand. The applicability of any general terms and conditions of the other party is explicitly excluded. If one or more provisions in these general terms and conditions are null and void or declared null and void at any time, the other provisions of these general terms and conditions will remain in full force. If there is any uncertainty regarding the interpretation of a provision of these general terms and conditions, it will be interpreted ”in accordance with the original meaning” of this provision. These general terms and conditions have been drawn up in both Dutch and English. The Dutch text of these general terms and conditions shall always be decisive for the interpretation thereof. D. Deviations from these general terms and conditions are only possible to the extent agreed upon in writing between Carephar and the other party.
OFFERS AND AGREEMENTS
All offers are without engagement and will be confirmed in writing. Verbal offers and commitments only bind Carephar after and as far as they have been confirmed in writing by Carephar. Offers and agreements are legally valid if signed by a person authorized to do so. Carephar cannot be held to an offer or agreement if the other party can reasonably understand that the offer or agreement, or a part thereof, contains an obvious mistake or clerical error. All offers have a limited validity. The offer is valid for that agreement only. Carephar reserves the right to reject an order.
Delivery and transport clauses will be interpreted according to the most recent Incoterms, and will be laid down per offer and agreement. The delivery time, unless otherwise agreed in writing, will be given by approximation. The delivery periods indicated by Carephar will never be considered as deadlines. The other party is obliged to take possession of the goods delivered. If the goods to be delivered are not picked up and/or received by the other party, they will be stored by Carephar for account and risk of the other party, possibly at the discretion of Carephar with a third party. If after expiry of a limited storage period, which can be considered reasonable in view of the product type, no acceptance by the other party has taken place and the risk of loss of quality and/or decay of the goods leaves no other choice, Carephar is entitled to sell the goods concerned, if still possible. In that case the other party is obliged to pay the possible price difference resulting from such a sale, as well as all costs and damages on the side of Carephar.
RETENTION OF TITLE
Delivered goods will remain the property of Carephar until the agreement has been fulfilled in full. However, as long as the other party fulfills its obligations towards Carephar, it is entitled to dispose of the goods in the framework of its normal business activities. However, the customer is not entitled to sell the goods to third parties who are established outside the territory of the European Economic Area. The risk of loss, damage or depreciation passes to the Other Party at the moment when the goods are brought into the power of the Other Party, as defined in the Incoterms. As long as the ownership of the delivered goods has not been transferred to the Other Party, the latter may not pledge the goods or grant any right thereto to third parties. Furthermore, the other party is obliged to inform Carephar immediately about any actions of third parties with respect to goods belonging to Carephar.In case of seizure at the expense of the other party or suspension of payment or bankruptcy of the other party, the other party will immediately inform the bailiff, administrator or receiver concerned of Carephar’s retention of title as laid down in this article. In case of non-fulfilment or incomplete fulfillment by the other party of his obligations, Carephar will be entitled to recover the delivered goods at the expense of the other party without any summons, notice or judicial intervention. For that purpose the other party will give Carephar access to those places where the property of Carephar is located. The other party is obliged to keep the goods delivered under retention of title carefully and as recognizable property of Carephar, until the agreement has been fully complied with by the other party. The other party is also obliged to insure these goods against theft, fire and water damage. Any claims of the other party on account of these insurances will be pledged to Carephar by the other party at Carephar’s first request, as additional security for Carephar’s claims against the other party. Carephar is obliged, until and unless the agreement has been fully complied with by Carephar, to keep the goods delivered under retention of title carefully and as recognizable property of the other party. Carephar is also obliged to insure these goods against theft, fire and water damage, any claims of Carephar under these insurances will be pledged to the other party by Carephar at the first request of the other party, as additional security for the claims of the other party against Carephar.
Unless otherwise stated or agreed, all prices are net and ex works, therefore exclusive of sales tax, other taxes and government levies and transportation costs. Prices quoted are valid to the extent that the entire offer is agreed upon. All prices in the offer and/or agreement are stated in euros, unless expressly stated otherwise. All prices are based on the official monetary relationships of domestic and foreign currencies, import duties, prices of raw materials and energy, other taxes and levies applicable at the time of the offer. In case of cost-increasing change of one or more of the factors mentioned in article 5C before delivery has taken place, Carephar reserves the right to increase the prices in such a way that the changes that have occurred are fairly accounted for. Carephar will notify the other party in writing of a price increase as mentioned in article 5D. If the other party cannot agree with the price increase, the other party has the right to cancel the agreement within five working days after receipt of the price increase notification for the product(s) for which the price increase has been implemented.
The other party undertakes to pay the amount due immediately in a manner to be indicated by Carephar, unless otherwise agreed in writing. Payment will always be made in EURO, unless otherwise agreed. The payment obligation is only considered fulfilled if the full amount due has been received by Carephar and Carephar can dispose of the full amount. Carephar is at all times entitled to deviate from the provisions of Article 6A for each delivery, among other things by requiring prepayment or cash payment. The other party will be in default by the mere expiry of the agreed term of payment, without a notice of default being required. Without prejudice to any other rights to which Carephar is entitled, the other party: I. will be charged an interest rate of 2% above the discount rate for promissory notes of the Nederlandsche Bank N.V. on the amount due as from the date of invoice until the moment of payment of the amount due in full. II. is obliged to fully reimburse both judicial and extra-judicial collection costs, including all costs incurred by Carephar for lawyers, attorneys, bailiffs and collection agencies. The extrajudicial costs are set at a minimum of 15% of the principal amount, with a minimum of EURO 170,=. The other party is never entitled to any discount, deduction, settlement or suspension of the amount it owes to Carephar. E. Objections against the amount of an invoice do not suspend the obligation to pay. The other party who is not entitled to invoke section 6.5.3 (articles 231 up to and including 247 Book 6 of the Dutch Civil Code) is also not entitled to suspend the payment of an invoice for any other reason.
In case of bankruptcy, seizure, legal debt rescheduling, liquidation or in case of applied for or obtained suspension of payment from the other party, Carephar is entitled to unilaterally dissolve the agreement without further notice of default and without judicial intervention by registered letter or to suspend the execution thereof in whole or in part, without being obliged to pay any compensation and without prejudice to all other rights to which Carephar is entitled. In case one of the circumstances mentioned in article 7.A occurs at the counterparty, all that is owed by the counterparty by virtue of any legal relationship will become immediately due and payable and Carephar will be entitled to suspend or dissolve all other agreements with the counterparty as well. Carephar is also authorized in the same way as mentioned in 7.A to suspend the fulfillment of the obligations or to dissolve the agreement, if: I. the Counterparty – despite being warned – does not comply with the obligations under the agreement, or does not comply in full or on time, or if there is reason to fear that the Counterparty will not comply with the obligations; II. due to the delay on the part of the Counterparty, it can no longer be required of Carephar to comply with the agreement against the originally agreed conditions. In case of application of article 7A, 7B and/or 7C, the other party will be liable for all damage (including costs) on the part of Carephar resulting directly or indirectly from that. E. Cancellation of an agreement by the other party is only possible if the cancellation is done in writing and before delivery of goods or before the services and/or products have been delivered. If the customer cancels an order wholly or partially, the goods ordered or prepared for it, increased with the costs of supply and delivery thereof and the working time reserved for the execution of the agreement, will be charged to the customer in full. The financial obligations of Carephar towards third parties, which are related to the cancellation of the agreement and which still have to be fulfilled by Carephar, will also be charged to the other party in full. F. In case of cancellation less than one week before the start of the delivery of the ordered goods or services, the other party will owe, in addition to the costs referred to in this article, a compensation fee, which is fixed at 10 (ten) percent of the agreed price. In case of cancellation less than 48 (forty-eight) hours before the start of the delivery of the ordered goods, this compensation will be fixed at the full agreed price. The time limits mentioned in this sub shall be counted in working days.
Force majeure of any kind whatsoever, such as mobilization, war, revolution, terrorism, fire, strike, epidemics, transport disturbances, seizure, interruption of production, lack of raw and auxiliary materials and/or energy, natural disasters, restrictive government measures of any kind whatsoever, non-timely or improper functioning of installations used for the execution of this agreement, total or partial default of a third party from whom goods or services should be received and any circumstance which Carephar could not reasonably foresee and over which she has no influence or a circumstance which is not due to her fault and on the basis of which she, if such circumstance would have been known to her at the time of conclusion of the agreement, would not or not under equal conditions have concluded the agreement, gives Carephar the right without judicial intervention to terminate the agreement in whole or in part or to suspend it, without being obliged to pay any compensation. Compliance in one or more cases as mentioned in article 8A will not affect the right to use the power of suspension or dissolution in other cases. If as a result of force majeure the delivery or purchase is delayed by more than eight weeks, both parties shall be entitled to dissolve the agreement.
COMPLAINTS AND LIABILITY
Except for cases of mandatory law, Carephar can only be held liable for damage attributable to intent or gross negligence. Carephar is never liable for consequential damage, indirect damage and loss of profit or turnover. Carephar is never obliged to pay damages other than property damage and/or personal injury. If Carephar has purchased the goods supplied to the other party from a supplier, Carephar is never obliged to provide a further guarantee than the one Carephar can claim from its supplier. Furthermore, Carephar is not liable for any damage, of whatever nature, caused by the fact that Carephar relied on incorrect and/or incomplete data provided by or on behalf of the Customer. Notifications by or on behalf of Carephar with regard to quality, composition, treatment in the broadest sense, application possibilities, characteristics of the goods are not binding for Carephar, unless these notifications have been made in writing and explicitly in the form of a guarantee. D.1 The other party is obliged to check the goods from their original packaging upon receipt or otherwise as soon as possible before use. Claims with respect to damage, quality, possible defects or other deficiencies must be submitted in writing to Carephar within one week after receipt of the delivered goods, or within one week after the defect could reasonably have been discovered, mentioning a proper motivation, the number and date of the relevant order confirmation/invoice. D.2 The other party is obliged to take measures in order to limit the damage to delivered goods as much as possible. D.3 The customer is obliged to strictly comply with the regulations concerning the way of storing and handling the delivered goods. D.4 The other party should give Carephar the opportunity to investigate any reported defect. D.5 Any liability of Carephar lapses if the other party does not comply with the instructions mentioned in articles 9.D1, 9.D2, 9.D3 and 9.D4. D.6 Any and all liability of Carephar will also be void if a defect is caused as a result of or arising from injudicious or improper use or use after the expiration date, improper storage or maintenance by the other party and/or by third parties or when, without Carephar’s written consent, the other party or third parties have made changes or tried to make changes to the goods or if these were processed or modified in a way other than prescribed. Furthermore, any liability of Carephar is excluded if a defect is caused by or due to circumstances beyond Carephar’s control (e.g. but not limited to extreme temperatures) et cetera. Duly submitted and motivated complaints will be settled by Carephar at its discretion by price reduction, supplementation of defective goods delivered or exchange or return of goods. The handling of complaints will not affect the other party’s payment obligation. If it is established that a complaint is unfounded, the costs incurred by Carephar as a result thereof, including research costs, will be fully borne by the other party. In case Carephar, for whatever reason, is obliged to compensate any damage, the compensation will never exceed the amount to be paid by Carephar’s liability insurance and/or transport insurance, increased by the applicable excess. If and insofar as for any reason whatsoever no payment is made under such insurance policy or policies, any and all liability will be limited to the amount of the invoice value of the goods or services which caused the damage. Liability for damage to a good that contains a substance provided to Carephar by or on behalf of the other party and which damage is caused during or in connection with transport arranged by Carephar to the other party is at all times limited to the amount equal to the invoice value with respect to the service agreed upon and provided by Carephar. Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against Carephar and third parties involved by Carephar in the execution of an agreement is one year. If the services do not comply with what has been agreed upon in writing, a solution will be sought in consultation with the other party.
Return shipments will only be accepted by Carephar after written consent of Carephar to the other party. Only if the other party has properly complained in the manner prescribed in these general terms and conditions and only to the extent Carephar can be blamed for any defect in the goods delivered, Carephar will credit the other party or replace the defective goods in a reasonable manner. Carephar will never take back, replace or credit goods with a limited retention period after the expiration of this period unless otherwise agreed in writing. Each return must at all times comply with (i) presence of proof of proper storage, (ii) written accompaniment stating order number, item numbers, quantities and batch numbers.
INTELLECTUAL PROPERTY AND CONFIDENTIALITY
As a result of entering into an agreement with Carephar, the other party does not acquire any intellectual property rights. Except when the Other Party is obliged to do so by the government, the Other Party is not allowed to change or remove any branding and/or identification marks applied to the goods supplied to it or to the packaging and inserts thereof, or to change or imitate the goods or any part thereof. Carephar declares that to the best of its knowledge the goods do not infringe on any applicable intellectual property rights of third parties. In the event of a claim by third parties in respect of an infringement of such rights, Carephar may, if in its opinion this is required, replace or modify the goods in question or dissolve the agreement with the other party in whole or in part. In case of a claim by a third party regarding an infringement of the aforementioned rights, the other party is only entitled to dissolve an agreement with Carephar to the extent that maintaining the agreement in question cannot reasonably be required of the other party. The other party will immediately notify Carephar in writing of any claim by a third party regarding an infringement of intellectual property rights with regard to the goods supplied to the other party. In such a case Carephar is exclusively entitled to put up a defence (also on behalf of the Other Party) or to take legal measures against the third party in question or to agree on an amicable settlement. In such a case the other party will always cooperate with Carephar. Carephar and the other party will treat all information and/or data concerning the mutual business operations as strictly confidential and will not disclose the same to any third party in any way whatsoever, unless it can be demonstrated that this information and/or data were already generally known at the time of the conclusion of the initial agreement between Carephar and the other party or unless one party has given the other party written permission to disclose this information and/or data to (a) third party (parties). All data provided by Carephar in the context of an offer or an agreement to the other party, such as technical specifications, drawings, models and user instructions will remain the property of Carephar and may not be multiplied or disclosed to third parties without its prior written consent. Ownership with regard to Intellectual Property that arises during the agreement or the clinical research will be laid down in a separate agreement.
If the circumstances which the parties assumed at the conclusion of this agreement change so significantly during the term of the agreement that compliance with one or more provisions can no longer be reasonably required, consultation will take place about interim changes to the agreement.
PREVENTION BY THE GOVERNMENT
If regulations of a government or any other competent authority prevent or prohibit the use of goods supplied by Carephar, this is at the risk of the other party.
PREVENTION BY THE GOVERNMENT
If regulations of a government or any other competent authority prevent or prohibit the use of goods supplied by Carephar, this is at the risk of the other party.
The other party indemnifies Carephar against possible claims by third parties, who suffer damage in connection with the execution of the agreement and of which the cause is not attributable to Carephar. In case Carephar is sued by a third party, the other party is obliged to assist Carephar both extra-judicially and judicially and immediately do everything that can be expected from her in that case. Should the other party fail to take adequate measures, Carephar is entitled to do so itself without any notice. All costs and damages on the side of Carephar and third parties caused by this, are integrally for the account and risk of the other party.
CHOICE OF FORUM AND MODIFICATION OF CONDITIONS
Carephar prefers disputes arising from an offer of a product and/or service or an agreement or other legal relationship to be resolved by arbitration. Book 4 of the Dutch Code of Civil Procedure is applicable to the arbitration agreement concerning the dispute, which is concluded between the parties. If an arbitration compromise in accordance with subsection A is not possible, these and the following provisions will apply. The legal relations to which Carephar is a party are exclusively governed by Dutch law and/or European law, unless expressly agreed otherwise in writing. Unless expressly agreed otherwise in writing, all disputes will be adjudicated by the competent court in Utrecht, on the understanding that Carephar has the right to bring a case before the court that is competent in the place of residence of the other party. Parties will only appeal to a judge after they have made an utmost effort to settle a dispute in mutual consultation.