GENERAL TERMS AND CONDITIONS OF SALE OF DEAM | Version: March 2022
Clause 1 General Provisions, Scope Of Application
- These General Terms and Conditions of Sale (“T&C ”) of DEAM Holding B.V. (KvK: 34223140), DEAM Products B.V. (KvK: 53081579) and DEAM B.V. (KvK: 34223145) (together and each: “DEAM”) are applicable to all the business relations between DEAM and its customers (“Customer”). DEAM and the Customer together hereinafter: “the Parties”.
The relevant current version of the T&C can be downloaded from our website, www.deam.com.
- Any General Terms and Conditions of the Customer are herewith expressly rejected.
- The subject of the business relations is particularly the sale and delivery of goods produced by DEAM (“Products”) by DEAM.
- The T&C in the relevant current version will also apply to future contracts on the sale and delivery of Products with the same Customer without the need for DEAM to refer to them in each individual case.
- Any modification, deviation or addition to the T&C must be agreed by DEAM in writing. Whenever these T&C use the term “in writing” or “written”, this shall mean by document signed by the parties, or by letter with a copy sent per e-mail with confirmation of receipt. Legally relevant declarations and notifications which are to be submitted to DEAM by the Customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects) require the written form in order to be valid.
Clause 2 Conclusion Of The Contract
- Offers by DEAM are always subject to alteration and non-binding.
- Orders by the Customer are deemed to be a binding offer of a contract (“Order”).
- A contract between DEAM and the Customer (“Contract”) shall be deemed to be entered into upon receipt by DEAM, in writing, of a formal Order from the Customer and the dispatch by DEAM of a written (including by e-mail) acknowledgement to the Customer signifying acceptance.
- The written order confirmation by DEAM is conclusive for the content and specifics of the Contract even if it contains slight or commercially usual deviations from the Order. Such deviations are deemed to have been approved by the Customer unless a written objection from the Customer is received by DEAM within two (2) weeks of the date of the written order confirmation by DEAM.
Clause 3 Delivery times, notice
- Any delivery times quoted or agreed by DEAM are estimated delivery times, unless provisions to the contrary have been explicitly agreed upon in writing between the Parties.
- In the event of late delivery or other default on the part of DEAM the Customer shall send a written notice to DEAM granting DEAM a reasonable term of at least one month to fulfil its contractual obligations as of the date of the estimated delivery time stated on the corresponding Contract. In the event that such extended term is exceeded, the Customer will – as its sole remedy – be entitled to dissolve the specific Contract or part of that Contract, only with respect to the Products not yet delivered.
- If DEAM’s production and/or supply capacity does not allow all Contracts with the Customer to be carried out within the estimated delivery times, DEAM shall carry out the longest outstanding Contract in first instance and continue with the second longest outstanding Contract until all outstanding Contracts are carried out.
Clause 4 Delivery, Transfer Of Risks, Packaging, Minimum Shipping amount, Suspension of Delivery
- Unless otherwise agreed or otherwise set out below, delivery of the Products shall be ex works (EXW) – Oosteinde 18, Roden, the Netherlands in accordance with the latest Incoterms.
- Delivery is thus deemed to have taken place as soon as DEAM has made the Products available to the Customer at the previously named location. Upon the making available of the Products in this way, the risk of accidental loss or accidental deterioration of the Products is transferred to the Customer. The Products shall still be deemed to have been made available if the Customer is in default of acceptance.
- DEAM is fundamentally entitled to effect partial delivery if this is required for logistical reasons and reasonable to the Customer.
- Shipment of the Products from DEAM’s warehouse is at the risk and account of the Customer, irrespective of whether transport is arranged by or on behalf of DEAM or the Customer.
- DEAM shall deliver the Products suitably packed in shipping cartons, marked to identify the nature of the Products in as far as required for appropriate transport handling.
- Per shipment the minimum purchase amount is 36 Products, unless DEAM accepts a smaller order.
- Without prejudice to its other rights by virtue of law, the Contract or otherwise, without bearing any liability towards the Customer DEAM shall be entitled to suspend or delay any delivery, and/or to suspend or cancel the Contract at any time:
- if payment of any sums due from the Customer remain unpaid; or,
- if the Customer fails to meet any of its obligations under an agreement with DEAM, unless such failure to meet its obligations is the result of a failure by DEAM to execute any of its contractual obligations.
- If the Customer is in default of acceptance, or fails to act in cooperation, or if the delivery is delayed for any other reason that the Customer is responsible for, DEAM is entitled to demand compensation for the loss resulting therefrom, including additional expenses (such as warehousing costs, costs of maintaining and securing the Products).
Clause 5 Control upon delivery
- Upon delivery of the Products it is the Customers responsibility to check whether the delivery is in conformity with the Contract and that there are no visible defects.
- Any claim regarding visible defects or non-conformity of the delivery shall be made in writing within a maximum of 5 days as of the delivery of the Products. Such a claim shall be duly documented in order to allow DEAM to assess the reality of the claim. Failing that, the delivery shall be considered as fully compliant with the Contract, both in terms of quality and quantity.
- No non-conformity claims shall be considered by DEAM once the Products have been used, except regarding any procedure pursuant to the MDR.
Clause 6 Prices, Payment
- Unless otherwise individually agreed, all prices are in Euro’s, exclusive of VAT, therefore VAT to be added where applicable.
- DEAM shall be entitled to adjust the prices in the event of increases in cost-determining factors such as fluctuations in exchange rates, raw materials or labour costs.
- The sale prices current at the time of ordering apply ex works (EXW) Oosteinde 18, Roden, the Netherlands, in accordance with the latest Incoterms), The costs of packaging required for transport are, unless otherwise agreed, included in the relevant current prices.
- Where the Products are delivered on pallets and/or in containers and this loading equipment is not exchanged, the Customer will be invoiced for the costs of these pallets and/or containers.
- Payments shall be made in Euro’s. All payments due to the COMPANY are due and payable net within thirty (30) days of the invoice date unless otherwise agreed in writing.
- All payments due to the COMPANY shall be made without any deduction, set-off, suspension or postponement (unless otherwise agreed upon by the Parties):
- by electronic transfer, charges prepaid; or,
- by other means agreed to in writing in advance by the COMPANY.
- In the case of payments by cheque, the date on which the cheque is cashed and, in the case of bank transfers, the date on which the funds are credited to the account of DEAM is decisive.
Clause 7 Default In Payment, Payment Difficulties
- The Customer is in default upon expiry of the above payment deadline (cf. Clause 5 of these T&C). During the period of default, the relevant price payable will be subject to interest at the relevant applicable statutory default interest rate in the Netherlands, without prejudice to DEAM’s other statutory rights.
- In the event that DEAM at its discretion fears that the Customer will not meet its payment obligations such as demonstrated nonadherence to the payment terms and/or in the event of new European Union or Dutch legislation with respect to payment (or amendments thereto), including but not limited to Dutch and European legislation on payment services in the internal market entering into force, DEAM is entitled (i) to make any deliveries of Products subject to either advance payment of the total or a larger part of the purchase price or any payment instrument securing payment of such purchase price, and/or (ii) to amend the payment terms set out in Clause 5.
- If, after conclusion of the Contract, a considerable deterioration in the Customer’s financial circumstances occurs, which is particularly deemed to be the case in the event of filing for insolvency or the suspension of payments, DEAM is entitled under the statutory provisions to exercise our right to refuse performance of all still outstanding deliveries and/or, after expiry to no avail of a deadline set, to rescind the Contract with immediate effect (Section 321 BGB). This also applies if the Customer is in default with a significant portion of the payment obligations towards us. Further statutory rights on the claiming of compensation in place of performance or compensation for expenses remain unaffected.
Clause 8 Product Safety
- DEAM endeavours to guarantee the safety of the Products to the greatest extent possible.
- The Customer will support DEAM with regard to product safety to the best of his or its knowledge and belief, particularly as follows: In connection with performance of the Contract and the downstream use of the Products (particularly storage/transport, handover to downstream customers or end-users), the Customer may be affected by their own product-safety or regulatory obligations, particularly concerning medical devices. In particular, the Customer is obliged to issue all necessary instructions to his or its customer/the end-user, to monitor the Products marketed by him or it and, if necessary, to take necessary measures to avert any risks. The Customer will comply with such statutory obligations without exception.
- The Customer will follow instructions issued by DEAM relating to the relevant Products without exception and will forward instructions, information for use, warnings and risk characterizations on to his or its customers/ the end-users. The Customer also undertakes to impose similar obligations upon his or its customers with regard to the forwarding of relevant information. If the Customer becomes aware – for example, as a result of complaints from his or its customers – of product risks, side effects or other safety problems he or it will forward all relevant information to DEAM without delay.
- The Customer ensures the proper storage and proper transport of the Products, particularly in line with DEAM’s instructions. The conditions for storage and transport will be documented by the Customer in a meaningful form and grant DEAM access to relevant documents at its first request.
Clause 9 Warranties
- DEAM warrants to the Customer that:
- at delivery the Products bear the necessary CE-marking and suits the following certification standards: ISO 13485;
- during the shelf life of a Product the Product will conform with its specifications as listed/published in the standard product documentation pertaining to the Products;
- Any visible defects to a Product must be notified by the Customer to DEAM in writing within 5 days after delivery, any hidden defects to a Product must be notified by the Customer to DEAM in writing within 5 days after the discovery thereof, under penalty of loss of all rights.
Clause 10 Claims For Defects
- Differences in outward appearance, weight and/or dimensions between the Products delivered and the Products sold are insignificant if and insofar these differences (i) are usual in the trade or technically unavoidable and still comply with the applicable ISO standards, (ii) represent a technical advance and still comply with the applicable ISO standards, or (iii) are based on a change in the statutory provisions or other regulations. The Customer is free to prove that such differences are of significance for him or it. Insignificant differences do not constitute any defects.
- Subject to the limitations set forth in this T&C, DEAM’s warranty obligations under Clause 9 are limited to, at DEAM’s sole discretion, (i) replacement, or (ii) refund of the purchase price paid by the Customer to DEAM for the defective Product. Defective Products replaced under this warranty become the property of DEAM and the Customer shall return such Products pursuant to DEAM’s directions and at DEAM’s expense in accordance with the MDR-procedures.
- Without limiting the generality of the foregoing, DEAM shall not be bound to make good any defect in the Products in the event that:
- the Products have not been used in accordance with the instructions for use and/or have been subjected to misuse, neglect or accidental damage or were subjected to unusual physical, chemical or electrical stress; or
- the Products have not been handled and/or stored in conformance with the instruction set on the labelling and/or the MDR: or
- the Products have been modified or repaired; or
- the Trademarks have been defaced or removed from the Products, or
- the defect is the result of normal wear and tear
- at the date the defect is notified to DEAM the shelf life of the Product has already passed.
- Save as provided in Clause 10.2 and 10.3 DEAM shall not be under any obligation or liability, whether in contract, tort or otherwise, for defects in the Products or for any injury, damage or loss resulting from such defects or from any work done in connection therewith.
- Claims by the Customer for compensation for damages and/or the reimbursement of futile expenses exist only in accordance with Section 12 of these T&C and are otherwise excluded.
- Expenses required for examination and subsequent fulfilment, particularly costs for transport, transit, will be borne by DEAM if a defect actually exists. Should the Customer’s desire for rectification of a defect turn out to be unjustified, DEAM may demand reimbursement by the Customer of the costs hereby incurred.
- The Customer is not entitled to assert claims for defects if and insofar he or it or a third party commissioned by him or it (i) has assembled, handled or used the Products inappropriately or incorrectly, or (ii) has changed the Products in any other manner thereby resulting in the defect.
Clause 11 All Products are disposable products
- As the Products are sterilized single use goods, they are solely intended for single use. The Products are not suitable for re-sterilization or reuse.
- Should the Customer or end-user reuse the Disposable Products against this warning, such reuse is at his or its own risk.
- The Customer is not entitled to assert claims for defects if and insofar he or it has reused a Disposable Product which, upon or in connection with the reuse, exhibits defects deviating from the agreed specifications.
- The Customer’s obligation to forward information on to his or its customers (cf. Section 7(3) of these General Terms and Conditions) also applies to our information in connection with Disposable Products.
Clause 12 Limitation of Liability
- DEAM’s liability with regard to defaults shall be limited to the fulfilment of its warranty obligations, set out in Clause 9 and 10.
- In no event will DEAM be liable for costs of procurement of substitute products, or for any indirect or consequential damages, including but not limited to any loss of profits, loss turnover, loss resulting from delays, missed savings or loss of goodwill, however caused and on any theory of liability, arising out or in any way connected to this Agreement (including any ISC or other ensuing agreement) or the expiration or termination hereof.
- Without prejudice to the provisions of this Clause 12, DEAM’S aggregate liability, regardless of the form of action or legal theory of liability, shall in any event not exceed the net price paid by the Customer for the Products in the six (6) months prior to the moment on which the first relevant liability originated.
- In the event of fines or revocation procedures imposed by any competent administration in relation to the Products, solely attributable to DEAM, DEAM shall bear these costs and fines exclusively and will hold the Customer free and harmless of any costs of whichever nature, including legal fees.
- Nothing in this General Terms and Conditions is intended to exclude liability for damage caused by gross negligence or willful misconduct by the management of DEAM.
- The Customer shall indemnify and hold harmless DEAM for any consequences resulting from the use of the Products and/or from any situation as meant in Clause 10.3.
- Any exclusion or limitation of DEAM’s liability applies also to the personal liability of the employees, representatives and other agents of DEAM.
Clause 13 Retention Of Title
- DEAM retains title of ownership to the delivered Products until the complete fulfilment by the Customer of all its obligations to DEAM under the Contract and other Contracts.
- The retention of title shall not affect the passing of risk under Clause 4.2.
Clause 14 Confidentiality
- Insofar as the Customer is given access to illustrations, models, drawings, calculations and/or other trade and/or business secrets (“Confidential Information”) of DEAM, he or it shall treat these confidentially and protect it from disclosure to others with at least the same degree of care as that which is accorded to its own proprietary information, but in no event with less than reasonable care.
- The Customer shall only to confine knowledge and use of the Confidential Information to those of its employees who require such knowledge and use in the ordinary course and scope of their employment by the Customer and under a similar duty of confidentiality.
- The Customer is entitled to notify third parties of this Confidential Information only with DEAM’s prior written consent. If the Customer is given consent, he or it will make Confidential Information accessible to third parties only to the extent that this is absolutely necessary and under a similar duty of confidentiality.
- Information that is generally known or accessible, does not constitute Confidential Information. Confidential Information which the Customer is obliged to disclose on the basis of legal provisions or administrative/judicial orders, are excepted from the confidentiality obligation.
Clause 15 Force majeure
- DEAM shall not be liable for any failure or delay of performance under a Contract if occasioned by any act of God, war riot, strike, other labour disturbances, failure of suppliers, a shortage of raw materials, delay, transport problems, breakdowns of machines or tools or other breakdowns within DEAM’s company or by reason of the application of any applicable law, regulation or requirement of any government, or by any other cause or causes whatsoever beyond its reasonable control, and not attributable to its negligence. A situation of force majeure must also be deemed to have occurred on the part of DEAM in the event that one or more of the above-mentioned circumstances occurs within the companies of DEAM’s suppliers and DEAM cannot or could not perform its obligations, or cannot or could not perform such in good time, as a consequence.
- If DEAM is so prevented from complying with a Contract it shall as soon as possible give notice thereof to the Customer and shall continue to take all actions within its power to comply as fully as possible herewith and promptly resume performance of its responsibilities the moment such cause or causes are removed.
Clause 16 Severability Clause
Should individual provisions of these T&C be or become invalid, unenforceable, or null and void wholly or in part, this shall not affect the validity of the remaining provisions.
Clause 17 Applicable Law, Place Of Jurisdiction
- This T&C, any Contract and other ensuing agreements shall in all respects be governed by and construed and enforced in accordance with the laws of The Netherlands, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
- All disputes arising from these T&C, any Contract and any ensuing sales agreement shall be exclusively brought before the District Court of The Northern Netherlands, location Groningen, without prejudice to the right of appeal and that of appeal to the Supreme court, unless DEAM chooses to bring an action at the Customer’s general place of jurisdiction.
DEAM Products B.V.