Delivery conditions

Specified terms and conditions

ARTICLE 1: APPLICABILITY
These conditions apply to all offers and all agreements of PromoCare BV of which PromoTissue™ is a sister company with registered office in Hilversum, hereinafter referred to as the supplier.
The customer/purchaser shall hereinafter be referred to as the client.
Other conditions shall only form part of the agreement concluded between the parties if and insofar as both parties have agreed to this expressly and in writing.
The acceptance and retention of a quotation or order confirmation, in which reference is made to these conditions, by the client without comment, shall indicate the client’s approval of the application of these conditions.
The possible inapplicability of one part of a provision of these general conditions shall not affect the applicability of the other provisions.

ARTICLE 2: AGREEMENTS
Purchase and sales agreements and supplements/modifications thereto shall only become binding upon confirmation in writing from the supplier.

ARTICLE 3: OFFERS
1. All quotations/offers are free of obligation unless they contain a deadline for acceptance. If a quotation/offer contains an offer without obligation and this is accepted by the client, the supplier has the right to withdraw the offer within two days of receiving the acceptance.
2. A. If, between the date of concluding the agreement and the delivery, the cost price of the ordered products rises and/or changes are made by the authorities and/or professional associations to wages, conditions of employment or social provisions, the supplier shall be entitled to pass on these increases to the client.
If, between the aforementioned dates, a new price list is issued by the supplier and/or subcontractors and comes into effect, the supplier shall be entitled to charge the client the prices specified therein, or to apply the provisions of the preceding paragraph.
2. B. In the event that the client is a natural person who does not act in the exercise of a profession or business, price increases may be passed on 3 months after they have come into effect in accordance with the above paragraph. In the case of price increases earlier than this, the client shall be entitled to dissolve the agreement.
3. The supplier is entitled to enlist third parties for the performance of the agreement.
4. Images, catalogues, drawings and other data provided to or by the supplier are subject to modification without prior notification and are not binding upon the supplier.

ARTICLE 4: DELIVERY OF PERFORMED WORKS
1. All prices quoted exclude delivery costs.
Specified delivery periods may never be regarded as a deadline, unless expressly agreed to the contrary. In the event of late delivery, the supplier must therefore be notified in writing of being in default.
2. In the case of part deliveries, each delivery shall be considered as a separate transaction.
3. If it proves impossible to deliver the items to the client, the supplier reserves the right, after he has notified the client of the default, and the period specified in the notification of default has elapsed, to store the products at the client’s expense and risk or to destroy them.
The preceding sentence does not affect the client’s obligation to settle the purchase price.
4. A single delivery shall be made to an address specified by the client, even if the client intends to distribute the ordered items to various addresses. The client is responsible for ensuring that the place of destination/unloading bay is properly accessible.
5. The supplier is entitled, in connection with the performance of the client’s financial obligations, to require payment in advance or security from him before making the delivery.
6. The supplier reserves the right, in the case of complex products or products created specially for the client, to deliver and to invoice up to 10% more or less than the agreed quantity.
7. If the supplier displays or provides a model, sample or example, this is purely for indicative purposes: the qualities of the items to be delivered may differ from the sample, model or example.

ARTICLE 5: TRANSPORT
1. The ordered items are dispatched in a manner to be specified by the supplier and at the supplier’s expense and risk.
2. The supplier will take out appropriate insurance against the aforementioned risks.
3. Non-accepted orders are stored by the supplier at the client’s expense and risk, in accordance with the provisions of Article 4.

ARTICLE 6: COMPLAINTS/RETURNS
1. When taking receipt of the products the client is obliged immediately to inspect the items. If irregularities are detected, they must be noted on the freight slip and/or accompanying documentation and brought to the supplier’s attention within 24 hours, followed by immediate confirmation in writing.
Other complaints must be reported by recorded mail within 8 days of the receipt of the items by the client.
2. If the aforementioned complaint is not made known to the supplier within the specified deadlines, the items shall be considered to have been received in good condition.
3. Complaints do not suspend the client’s payment obligations.
The supplier must be allowed to investigate the complaint.
4. If a return shipment proves necessary, this shall only take place at the supplier’s risk and expense if the supplier has given his express approval in writing and in advance.
If the return shipment relates to a complaint as described above, the return shipment shall only take place at the supplier’s risk and expense if he has declared the complaint to be justified. In such cases return shipments take place in a manner to be specified by the supplier.
5. If, after delivery, the items have been modified in type and/or composition, worked or processed in whole or in part, damaged or repackaged, there shall be no right to make a complaint.
6. In the case of justified complaints, the damages will be compensated for in accordance with the provisions of Article 8.

ARTICLE 7: LIABILITY/GUARANTEE
1. The supplier shall perform his task in such a way as may be expected of a company in his industry, but accepts no liability whatsoever for damages, including consequential losses, which are the result of his actions or omissions in the broadest sense of the word, except insofar as they may be attributed to his gross error/negligence and/or are deliberate.
The same restriction applies with respect to members of staff and/or third parties used by the supplier.
2. If there are obvious (manufacturing) errors in the supplied products which must already have been present at the time of delivery, the supplier undertakes to replace these products free of charge.
The supplier shall ensure that the supplied products are of standard customary quality and reliability; the physical storage life of the products is guaranteed.
3. Without prejudice to the provisions of the other paragraphs and of Article 7, the supplier’s liability – on whatsoever account – shall be limited to an amount equal to the net sale price of the supplied products. Compliance with this guarantee shall be considered the sole and complete compensation for any losses.
4. A. In all cases the period within which the supplier may be called upon for compensation for losses shall be limited to 6 months.
4. B. In the event that the client is a natural person who does not act in the exercise of a profession or business, a maximum period of 1 year shall apply.
5. The client shall lose his rights with respect to the supplier, shall be liable for all losses and shall indemnify the supplier against any claim by third parties relating to compensation for losses if and insofar as:
A. the aforementioned losses have arisen as a result of incompetent usage, and/or usage contrary to the supplier’s instructions, and/or incompetent storage (storage in original packaging) of the supplied products, by the client;
B. the aforementioned losses have arisen because the client has acted in a manner not in accordance with the instructions and/or recommendations given by the vendor.

ARTICLE 8: PAYMENT
1. Payment must be made net in cash within 8 days of the invoice date, even if deliveries cannot be made in accordance with Article 4.
2. If an invoice has not been paid in full after the expiry of the period specified in paragraph 1:
A. from that point onwards the client shall be charged a credit restriction surcharge of 2%, without there being any requirement for a further notification of default.
B. the client shall be liable to the supplier for late payment interest in the amount of 2% per month cumulatively, calculated on the principal sum. In this regard, parts of a month shall be considered as full months.
C. after being notified by the supplier, during a period to be specified by the supplier, that he is neglecting to comply with his payment obligations, the client shall pay the costs relating to the taking of judicial and extrajudicial collection and/or enforcement measures, including the costs of a bankruptcy petition. With respect to the extrajudicial costs, the client will be liable for a minimum of 15% of the sum of the principal sum and the late payment interest with an absolute minimum of € 35.00.
3. At the supplier’s discretion, in the preceding or equivalent circumstances, the agreement may be dissolved in whole or in part, without further notification of default or judicial intervention, which measure may or may not be combined with a demand for compensation.
4. If the client has not fulfilled his payment obligations in good time, the supplier shall be entitled to suspend the fulfilment of the obligations entered into with the client for deliveries/performance of activities until payment has been made or reliable security has been provided for this. The same applies before the moment of default/omission if the supplier suspects that there are reasonable grounds to doubt the client’s creditworthiness.
5. Payments made by the client are always used to settle all due interest and costs and then the invoices which have been outstanding the longest, even if the client specifies that the payment relates to a later invoice.
ARTICLE 9: ADJUSTMENT
If the client, for whatsoever reason, has or will acquire one or more counterclaims against the supplier, the client renounces the right to adjustment with regard to this (these) claim(s). The said renunciation of the right to adjustment also applies if the client requests suspension of payment or is declared bankrupt.
ARTICLE 10: RESERVATION OF TITLE
1. All products supplied and to be supplied remain the property of the supplier until such time as the client has fulfilled the relevant payment obligations towards the supplier.
These payment obligations consist of the payment of the purchase price, as well as claims relating to any compensation on account of shortcomings on the part of the client in the fulfilment of his obligations.
2. In the event that the supplier invokes the reservation of title, the relevant agreement shall be considered to have been dissolved, without prejudice to the supplier’s right to demand compensation for damages, lost profit and interest.
3. The client is obliged immediately to inform the supplier in writing of the fact that third parties are asserting rights to products to which a reservation of title applies in accordance with this article.

ARTICLE 11: COLLATERAL/WARRANTING
The client is not entitled to give the supplied products to third parties as collateral and/or to establish a right of lien on them, and/or supply the products for storage under the actual control of one or more financiers (warranting), since such actions will be regarded as culpable non-fulfilment of the client’s obligations. The supplier may then immediately suspend, without being required to issue any notification of default, his own obligations in connection with the agreement, or dissolve the agreement, without prejudice to the supplier’s right to demand compensation for damages, lost profit and interest.

ARTICLE 12: BANKRUPTCY, LOSS OF ACCESS TO ASSETS etc.
Without prejudice to the provisions of the other articles of these conditions, the agreement concluded between the client and the supplier shall be dissolved without any requirement for judicial intervention or notification of default, at the point at which the client is declared bankrupt, or when a request for a temporary moratorium on payments has been made, or when he has lost access to and/or full legal capacity with regard to his assets or parts thereof, due to an attachment order or being placed in receivership or otherwise, unless the receiver or trustee considers the obligations arising from this agreement to be debts of estate.

ARTICLE 13: NON-PERFORMANCE/DEFAULT
1. In the event that the fulfilment of the supplier’s obligations in accordance with the agreement concluded with the client is not possible, and that this may be attributed to non-culpable non-fulfilment on his part, and/or on the part of the third parties/subcontractors enlisted for the performance of the agreement, the supplier shall be entitled to dissolve the agreement concluded between the parties, or to suspend the fulfilment of his obligations towards the client for a reasonable period to be specified by himself, without being obliged to pay any compensation.
If the aforementioned situation arises when the agreement has already been carried out in part, the client must fulfil his obligations towards the supplier up to that point.
2. Circumstances entailing non-culpable non-fulfilment are understood to include, among others: war, insurrection, mobilisation, disorder at home or abroad, government actions, strikes and lockouts by the workforce or threat thereof and similar circumstances; disruption of the currency exchange rates prevailing at the time that the agreement was concluded; business disruptions as a result of fire, accident or other events; natural phenomena, all irrespective of whether non-fulfilment or late fulfilment occurs at the supplier’s premises, or those of subcontractors or third parties enlisted by him for the performance of the agreement.
3. In the event that the client might remain in default with respect to the prompt performance of his obligations towards the supplier, in the case of the cessation of payments, request for the suspension of payments, bankruptcy, attachment order, cession of property or liquidation of the client’s business, all amounts owing by him on account of any contact with the supplier shall immediately become payable in full.

ARTICLE 14: CANCELLATION / DISSOLUTION
1. The client renounces all rights to dissolve the agreement arising from Article 6:265 and following of the Civil Code or other legal provisions unless cancellation is agreed in accordance with the paragraph below.
2. Cancellation by the client is only possible if the supplier agrees.
In this case the client, in addition to paying compensation to the supplier of at least 25% of the purchase price, shall be obliged to buy already ordered items, whether or not they have been worked or processed, at the cost price. The client shall be liable to third parties for the consequences of the cancellation and indemnifies the supplier accordingly.
3. Amounts already paid by the client shall not be refunded.

ARTICLE 15: GOVERNING LAW / COMPETENT COURTS
1. Agreements concluded between the supplier and the client shall be governed exclusively by Dutch Law. Any disputes arising from the agreements shall also be settled in accordance with Dutch Law.
2. Any disputes shall be adjudicated by a competent Dutch court, unless the supplier gives authorisation for the case to be brought before the competent court in the locality in which the client resides and/or is established.
3. In the event that the client is a natural person who does not act in the exercise of a profession or business, within 1 month of the supplier informing the client that the case is to be submitted to the court, the client may make it known that he chooses settlement of the dispute by the legally competent court.