General Terms and Conditions of NES Europe B.V., with its registered office in Wolfhagen 75, 6365 BM Schinnen, Netherlands, under Chamber of Commerce No. 24407710
- 1.1. These General Sales Terms and Conditions will apply to all offers or quotes made, contracts concluded and the execution thereof, and deliveries and services carried out by or on behalf of NES Europe B.V. (hereinafter: Supplier). Deviations from these Terms and Conditions will only be effective if agreed upon in writing by Supplier and Other Party.
- 1.2. All quotes and prices will be free of obligation and valid within the term stated by Supplier, unless stated explicitly otherwise in writing in the quote. Price lists, brochures, catalogues, folders and other information provided by or on behalf of Supplier have been put together as carefully as possible, but are not binding for Supplier.
- 1.3. Possible General and/or Special Sales, Tender, Delivery, or other Sales Conditions from Other Party will not apply, unless explicitly accepted by Supplier in writing.
- 1.4. An agreement between Supplier and Other Party will be concluded the moment Supplier has accepted and confirmed an assignment or order from Other Party in writing; the scope and content of the agreement is as follows from the written confirmation by Supplier.
- 1.5. For work or assignments for which, given their nature or scope, no quote or confirmation of assignment has been sent, it will apply that the agreement is concluded the moment that Supplier or another party on behalf of Supplier will actually start with the execution of the agreement, while in such a case the invoice will be considered the confirmation of assignment, which is also deemed to reflect the agreement accurately and completely.
- 1.6. Other Party will undertake towards Supplier not to assign any rights and/or obligations arising from the agreement concluded between them, or to transfer these rights or obligations in another way, other than with prior permission in writing from Supplier.
- 1.7. Amendments in an agreement will only be valid when made in writing and if both parties have agreed to the amendment.
In these Terms and Conditions the following definitions apply: Equipment: the devices, peripherals, accessories and parts to be delivered by Supplier on the basis of the Agreement; Services: the services and working activities to be carried out by Supplier for the benefit of Other Party on the basis of an Agreement, and in the scope of these performances and/or efforts, such as installation and support, as well as all forms of advisory services and training programme(s); Documentation: user and/or technical manuals belonging to the Equipment and/or Software Module (with the exception of maintenance diagnosis material); User right: the non-exclusive and non-transferable right granted under the Agreement, to use the Software Module(s) as described in the Agreement in combination with the measuring device provided by the Supplier; Office hours: hours between 8 am and 4 pm on Working days; Employee: the person who is charged with the actual execution of the Agreement on behalf of Supplier; Agreement: the contract as concluded by Supplier and Other Party; Products: the Equipment, Infoceuticals, nutritional supplements, Software Modules and/or Documentation as to be delivered by Supplier and as specified in the Agreement; Software Module: the object code version of the computer programmes including the Documentation and/or user information belonging to this, as to be delivered by Supplier on the basis of the Agreement; Confidential information: Software Module(s) and/or Documentation and related materials, user information and/or reports and/or quotes and all other information regarding Supplier of which Other Party knows, or reasonably should know the confidential nature. Confidential information of Other Party includes in any case client/patient information; Other Party: organizations or natural persons using the products and/or services of Supplier; Working days: calendar days on which working activities are carried out, with the exception of weekends and generally acknowledged holidays.
- 3.1 The products to be delivered by Supplier on the basis of the agreement will be delivered to Other Party at the address as agreed. Supplier will inform Other Party timely regarding the expected delivery date. The risk regarding the Products will be transferred to Other Party at the moment of delivery.
- 3.2 Stated delivery times will always be approximate and will be determined by Supplier based on data as known to Supplier at the moment the agreement was concluded. If a delivery date or time is likely to be exceeded, then Supplier will consult with Other Party. The mere fact that the delivery period will be exceeded will not cause Supplier to be in default. Supplier will not be bound to delivery terms that cannot be met as a result of circumstances not controlled by Supplier which occurred after the Agreement was concluded3.3 The deadlines stated under 3.1 and 3.2 will never be considered final deadlines.
- 3.4 A 7 working day reflection period will be granted to Other Party after receipt of the Products which were ordered by them, during which Products can be sent back to Supplier, and after which the invoice payment will be refunded. Shipment costs will be borne by Other Party.
- 3.5 When delivery period exceeds 30 days Other Party has got the possibility to terminate the Agreement.
4. PRICES AND PAYMENTS
- 4.1. All prices will be exclusive of Dutch VAT, other government levies and any shipment costs, unless indicated or agreed upon otherwise in writing. Payments must be made including Dutch VAT.
- 4.2. The Prices will apply only to the Products and/or Services specifically stated in the Agreement.
- 4.3. The payment for agreed Services will be invoiced in advance or after the Services have been provided, all this as stated in the Agreement.
- 5.1. Other Party will pay all invoices in accordance with the payment conditions as stated on the invoice. If no specific conditions are stated, Other Party will pay within five days after the invoice date. The payment is only deemed to be made after Supplier has received a notification of crediting of the paid sum into one of its accounts.
- 5.2. Supplier reserves the right to demand surety with regard to the payment before delivery in the form of an advance payment of the full amount as agreed upon between the parties or cash payment of the full amount when the goods/services are delivered.
- 5.3. If Other Party does not make a payment or payments in accordance with that mentioned above, then Other Party will be in default without further written notice of default. Supplier will then be entitled to charge €25 administration costs to Other Party. As of the date on which Other Party is in default, Supplier will be entitled to charge 1% interest per month over the full amount of the debt or debts which is/are due. All collection costs, extrajudicial and judicial costs in connection with the collection of any claim against Other Party will be borne by Other Party.
6. CONFIDENTIAL INFORMATION AND INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS
- 6.1. Other Party and Supplier will be bound to take all reasonable precautions to keep the information of a confidential nature received from the other party confidential, to protect this information against disclosure to third parties, not to give this information either for a temporary or longer period for inspection or use to third parties, not to copy or in any way multiply the information, unless explicitly permitted, and Other Party and Supplier should use the information solely for the purpose for which it is made available within the provisions of the Agreement. Confidential information will always be marked as such by the providing party.
- 6.2 Other Party will acknowledge the copyrights and all other intellectual and related property rights of Supplier and/or its suppliers on Equipment, Software Module(s), Documentation, advice, reports and related materials provided or to provide by Supplier. Other Party will not be allowed to delete or change any mark regarding copyrights, brands, trade names, or other rights of intellectual property from the Equipment and/or Software Module, including any details regarding the confidential nature and confidentiality of the Software Module.
- 6.3 Other Party will acknowledge that all data provided by Supplier will remain property of Supplier at all times and may not be copied or multiplied in any way.
- 6.4 That stated in this Article will remain in force also after termination of the Agreement or when the Agreement is annulled.
- 7.1. Supplier cannot be held liable to compensate any damage, of whatever nature, to any movable or immovable property, or person or third party, including trading loss, which is directly or indirectly caused by, or related to the use or application of the Products and/or Services delivered by Supplier, unless if, and insofar this arises from mandatory legal provisions regarding product liability. The Other Party will indemnify Supplier explicitly against all claims of third parties which are based on or related to any such damage. Supplier will in no case be liable for damage or loss directly or indirectly caused by improper and/or careless use of the delivered Products and/or Services or use thereof for another purpose then for which the Products and/or Services are deemed to be fit, or another purpose than that of which Supplier in all reasonableness could assume that Products and/or Services would be used.
- 7.2 Possible liability of Supplier for damage and regardless whether this is claimed based on attributable breach or wrongful act, will at all times be limited to direct damage with a maximum of the invoiced net invoice amount of the product in question which forms the subject of the claim for liability.7.2. If and insofar the agreement is a continuing performance agreement, the compensation to be paid by Supplier will in no case amount to more than that part of the total agreed price (exclusive of turnover tax) as stated in the Agreement which is related to the period of three (3) months immediately preceding the wrongful act or attributable breach of Supplier.
- 7.3. The total liability of Supplier for damage caused by death or physical injury, or for material damage to goods, will be limited to the amount which will be paid in that particular case by the liability insurer of Supplier.
- 7.4. Any liability for any other form of damage as stated in this Article, including explicitly trading loss, consequential damage (such as financial or commercial losses), loss of profit, loss due to delay, loss of use and or indirect damage, will always be excluded, also during the guarantee period.
- 7.5. The liability of Supplier due to attributable breach in the performance of an Agreement will only come into existence if Other Party immediately sends a notice of default in writing to Supplier, in which a reasonable term is stated to remedy the default, and if Supplier continues to fail imputably regarding the performance of its obligations after that term. The notice of default must contain a description of the default as detailed as possible, in order to enable Supplier to respond adequately.
- 7.6. Any claim against Supplier will lapse after a period of 12 months after the damage has become apparent or has been discovered or acknowledged or in all reasonableness should have been discovered or acknowledged.
8. INDEMNIFICATION OF INTELLECTUAL PROPERTY RIGHTS
- 8.1. Supplier will indemnify Other Party against third party claims regarding any alleged infringement of intellectual and/or industrial property rights as a result of normal use of a Software Module in accordance with the agreement, provided that (a) Other Party will notify Supplier immediately in writing after taking note of these claims, (b) Other Party will provide Supplier with the required authorities, information and cooperation to defend itself, if necessary in name of Other Party, against these claims and (c) will allow Supplier for its account to effect a settlement with that third party.
- 8.2. Should the use of the Product be forbidden, Supplier will then for its own account and to its free choice ensure that Other Party receives the right to continue the use, or Supplier will replace that part of the Product which infringes by another part or Product, or Supplier will change the infringing part of the Product to such extent that the infringement is terminated. If none of these alternatives is executable in Supplier’s judgment, then Other Party will end the use of the Product immediately at the first request of Supplier and return it to Supplier. Supplier will refund the amount invoiced for the Product to Other Party, while deducting an amount in all reasonableness determined by Supplier for the use until the moment that Supplier asked Other Party to end the use of the Product, as stated in this Article.
- 8.3. Supplier can in no way be held liable for infringement of any industrial or intellectual property right or any other exclusive right that is caused by any change in or to a Product sold or delivered by or on behalf of Supplier or of any use of such Product or any application of such a Product other than the application as prescribed by Supplier or which Supplier assumed, or which is the consequence of integration with, or use, or application in combination with Products that were not sold or delivered by Supplier, or which is the result of a software modification which was not carried out by Supplier.8.4. With regard to infringement of any intellectual or industrial property right pertaining to a third party, Supplier will not be held to anything more than that which is stated in these Terms and Conditions and that stated in this Article 8.
- 9.1 While observing that which is stated elsewhere in these General Terms and Conditions, Supplier will guarantee the reliability of the used materials and the promised features and the correct operation in relation to this of the Equipment delivered by Supplier. This guarantee will apply to new products for a term of 36 months after the delivery date.
- 9.2 Defects to the Equipment which are covered by the guarantee will be repaired, or replaced by new delivery, such to the sole discretion of Supplier, if these defects in the opinion of Supplier and/or manufacturer can be blamed on material or manufacturing faults in the Equipment, by reason of which the Equipment cannot be used by Other Party for the purpose for which the Equipment was intended. All replaced parts will become property of Supplier. In order to enable Supplier to fulfil its guarantee obligations, Other Party will send the Equipment to Supplier accompanied by a detailed statement of the complaint.
- 9.3 The guarantee will not cover faults that are wholly or partly the result of improper, careless or incompetent use, external causes, such as fire or water damage, or damage as a result of the Equipment falling, or if Other Party has modified the Equipment or parts of it, or had the Equipment or parts of it modified, without permission from Supplier.
- 9.4 Supplier will charge in accordance with the usual rates for work and costs for repair which fall outside the scope of this guarantee.
- 9.5 The guarantee will not cover consumables.9.6 Meeting the guarantee obligation will be the only and full compensation.
10. GUARANTEE ON SOFTWARE
- 10.1 With regard to each Software Module made available by Supplier, Supplier will guarantee that it will meet the possibilities for use as stated by Supplier in the Documentation, for 36 months after delivery. Supplier’s guarantee for a Software Module includes taking measures which are reasonably possible, to the best of its capacity, to repair any faults of which Supplier has been informed in writing and/or by electronical means, within the stated term of 36 months. Fault in these Sales Terms and Conditions means: essential deviations of possibilities for use as stated by Supplier. There is only a question of fault if it can be made apparent and can be reproduced. Other Party is obliged to notify Supplier immediately in writing of any faults.
- 10.2 Repair of faults will be carried out at a location to be determined by Supplier. Supplier is entitled to install temporary solutions or detours or problem avoiding restrictions in the Software Module.
- 10.3 Supplier will not guarantee that Software Module(s) function(s) without interruption or flaws, nor will Supplier guarantee that all faults can be repaired, nor that the Software Module(s) will meet all wishes and requirements of Other Party, or that the Software Module will function in any desired combination of products; any liability in this regard is excluded.
- 10.4 Supplier’s obligation to offer guarantee pursuant to this Article will cease if Other Party, or a third party engaged by Other Party, repairs faults or makes changes without written permission from Supplier, or if a fault is the result of improper or wrong use of the Software Module.
11. COMPLAINTS AND DISPUTES
- 11.1 In case of a complaint or dispute with regard to a Product and Service of Supplier, Other Party must in all cases in the first instance report in writing to NES Health B.V., Wolfhagen 75, 6365 BM, Schinnen, The Netherlands. Supplier will respond within 10 working days after receipt of the complaint or dispute in writing regarding the substance, unless this is in all reasonableness not possible. In the latter case Supplier will inform Other Party in writing within 10 working days after receipt of the complaint or dispute when the substantive response will be stated at the latest.
12. DURATION AND CANCELLATION
- 12.1 Each of the parties will be authorized, regardless of that which is stated elsewhere in this regard in these General Terms and Conditions, to cancel the Agreement wholly or partly, in writing: (a) Without court intervention or notice of default if and as soon as Other Party or Supplier is declared bankrupt; assignment of an estate is arranged; a moratorium has been filed for; a provisional or definitive moratorium is granted to Supplier or Other Party; all or part of the possessions of Other Party or Supplier are attached; (b) Other Party if he/she is a natural person: Becomes legally incompetent; dies; makes it known to be insolvable; (c) After being sent a notice of default in writing, with a reasonable term, if the other party fails imputably to perform substantial obligations arising from the Agreement. All amounts due and claimable by Supplier from Other Party are then immediately due and payable.
- 12.2 If Other Party cancels the agreement and at the time of cancellation has already received performances as execution of the Agreement from Supplier, Other Party can cancel the Agreement only partly, namely only for that part of the Agreement that has not yet been executed by Supplier. Amounts which were invoiced by Supplier to Other Party before cancellation of the Agreement in relation to that which has already been delivered or executed, will be due regardless of that stated above, and will be due and payable immediately upon cancellation of the Agreement.
13. DISPUTES AND GOVERNING LAW
- 13.1 Dutch law will apply to all agreements between Supplier and Other Party.
- 13.2 All disputes pursuant to or arising from agreements concluded by Supplier and deliveries carried out and Services performed by Supplier will be brought before the competent court of Maastricht.
- 14.1 None of the parties will be held to perform any obligation if it is hindered in doing so by Force Majeure. The following, among other things, are considered cases of Force Majeure: a non-attributable failure to perform by suppliers of Supplier, strike, extreme weather conditions, transport failures, fire or accidents, operational failure, uprising, riots, etc., etc.
- 14.2 Both parties will be able to invoke Force Majeure by informing the other party within a reasonable term.14.3 Supplier will be authorized to outsource the contracted Services to third parties under its responsibility.
- 14.4 Other Party will be responsible for the choice, the use and correct application in his/her organization or business of the Software Module(s) and/or Services to be delivered by Supplier, as well as for back-up, control and safety procedures to be applied.
USE AND MAINTENANCE OF PRODUCTSThe provisions stated in this section “Use and Maintenance of Products” will apply along with the General Provisions of these General Sales Terms and Conditions to all Products made available and accepted for maintenance by Supplier.
15. USER RIGHTS
- 15.1 A User Right will come into effect on the delivery date and will be provided for an indefinite period, unless stated otherwise in the Agreement. The property right to the Software Module(s) and Documentation (including adaptations and/or extensions) will not be transferred to Other Party and will remain at all times with Supplier or its supplier.
- 15.2 A User Right made available to Other Party by Supplier will contain a personal, non-exclusive, non-transferable right to install the Software Module(s) as stated in the Agreement on a CPU and to use the Software Module(s) in combination with measuring devices delivered by Supplier and in accordance with the provisions as included in the Agreement.
- 15.3 Other Party will not have the right to sell the Software Module or use it commercially, to organize training courses for the benefit of third parties with regard to a Software Module, or to provide a User Right to a third party. Any other use requires the prior written permission from Supplier, and Supplier can attach additional conditions to this permission.
- 15.4 Other Party is aware of the fact that the Software Module can solely be used in combination with an operational system as stated in the Agreement.
- 15.5 The installation and actually starting to use a Software Module, as well as putting in place sufficient procedures and control points to meet the demands regarding safety and accuracy, will be the responsibility of Other Party. Supplier does not accept any liability for damage arising from the use of a Software Module.
- 15.6 Supplier will have the right to terminate the User Right of a Software Module after notification in writing to Other Party, if (a) the compensation regarding the User Right has not been paid by Other Party, or (b) if Other Party is in default regarding one of his/her other obligations in relation to the User Right as stated in these General Sales Terms and Conditions during fourteen (14) days after being sent a written notice of default by Supplier, in which Other Party is urged to remedy the default or (c) in cases as mentioned under Article 9.
- 15.7 Other Party cannot derive any claim to additions, maintenance, and support, improved or new versions of a Software Module from the User Right.
- 15.8 Notwithstanding that stipulated in this Article or the law, Other Party will not be allowed to copy the Software Module(s) and/or Documentation or multiply the Software Module(s) and/or Documentation in any other way.
- 15.9 Supplier will be entitled to use technical measures to protect the Software Module(s) and/or the proper use of these. If Supplier has secured the Software Module by means of technical protections, Other Party will not be allowed to remove or avoid this protection.
16. SUPPORT OF THE SOFTWARE MODULE(S)
- 16.1 If Other Party uses the Software Module, Supplier will provide the following Services during Office Hours on Working Days: (a) Support and advice regarding the use of the Software Module by telephone; (b) Information and advice regarding new and further developments of the Software Module(s); (c) Actions to repair faults in the latest versions of the Software Module. Fault means in these Terms and Conditions: not meeting the possibilities to use the Software Module as stated in the Documentation;(d) Providing new versions and possibly adapted Documentation of the Software Module(s) as soon as these become available;New versions means: succeeding versions of a Software Module and the Documentation related to this which is generally made available by Supplier to Other Parties;New Software Module(s) for which Supplier will grant separate User Rights are excluded from support. If Supplier has provided a new version of a Software Module, Supplier will provide for a period of 1 year support for the previous version of the Software Module;(e) Upgrade(s) of the Software Module(s) will be provided at a payment determined by Supplier;Upgrade means: extensions of or additions to the Software Module(s) which are of such size that these are marked as Upgrade by Supplier.
- 16.2 Other Party will be obliged to provide Supplier with all actual possibilities to carry out support and maintenance.
- 16.3 Supplier reserves the right to terminate the right to support while observing a 1 year term, if Supplier in general no longer supports the type or version of the Operating System used by Other Party in combination with the Software Module. Other Party is obliged to inform Supplier about any change of type or version of Operating System that he/she uses in combination with the Software Module.
- 16.4 Supplier will be entitled to suspend the support, without being held to any Compensation towards Other Party, if Other Party is in default regarding timely payment.
- 16.5 Working activities of Supplier due to the inspection or repair of faults which arise from improper use of the Software Module, or from external causes, such as failure in communication lines, or electricity grid, or connection with or using of equipment, Software Module(s) or materials which are not included in the support, do not fall within the obligations of Supplier based on the maintenance agreement and will be invoiced separately to Other Party at the rates applicable at that time.
17. MAINTENANCE OF THE EQUIPMENT
- 17.1 The Maintenance of the Equipment will include the repair costs. Supplier will immediately make an exchange system available. Other Party will send the broken system immediately to Supplier. If the maintenance does not fall within the guarantee period, Supplier will in all reasonableness charge the expenses made to Other Party.
- 17.2 The costs of support as stated under Article
- 17.1 will be charged fully to Other Party if the faults are or failure is wholly or partly caused by improper, careless or incompetent use, external causes, such as damage caused by fire and/or water, or damage as a result of the Equipment falling, or damage caused by using third party products, such as software or devices, or if Other Party has made changes to the Equipment or parts or has changes made, without permission of Supplier.