Article 1. Definitions
These general terms and conditions contain a number of terms marked with a capital letter which, unless expressly stated otherwise, are defined as follows:
Buyer: the other party involved, acting in the capacity of a trade or company.
Offer: the written tender from Sympafix relating to the Products to be delivered
Agreement: the contractual agreement between Sympafix and the Buyer;
Parties: Sympafix and the Buyer jointly;
Sympafix: Sympafix B.V., with company seat in Ridderkerk, user of these Terms and Conditions;
Products: the goods produced and/or delivered by Sympafix;
Terms and Conditions: the present general conditions, as registered at the Chamber of Commerce in Rotterdam under number 59195495.
Article 2. General
2.1 The provisions of these Terms and Conditions are applicable to all quotations made by Sympafix (including Offers and related queries) and Agreements relating to Products to be delivered by Sympafix insofar as the Parties have not expressly, and in writing, deviated from these Terms and Conditions.
2.2 The application of general Terms and Conditions as applied by the Buyer shall be expressly excluded. By agreeing to this contract, the Buyer rescinds the right to his own potentially existing general Terms and Conditions to ensure that all Agreements are exclusively subject to the present Terms and Conditions.
2.3 Deviations from these Terms and Conditions shall only be binding if and insofar as Sympafix has confirmed them in writing.
2.4 In the event that the Terms and Conditions and an Agreement should contain contradicting clauses, the Agreement shall prevail.
2.5 In the event that one or more provisions of the Terms and Conditions are null and void the remaining provisions of these Terms and Conditions shall remain fully in force. Sympafix has the right to replace the voided provision(s) with new provisions, whereby, if and where possible, the aim and scope of the original provisions shall be observed.
Article 3. Offers
3.1 All tenders, in whichever form, are made without obligation. They shall not bind Sympafix and are only deemed to be an invitation to place an order, unless stated otherwise and in writing.
3.2 All details provided in an Offer such as - but not limited to - price lists, calculations, brochures etc. shall, at all times, remain the property of Sympafix and must be returned, postage paid, to Sympafix promptly, at first request.
3.3 The Buyer shall use all information provided by Sympafix exclusively for the purpose it was intended and shall not disclose any information to a third party.
Article 4. Agreement
4.1 An Offer binding Sympafix shall lead to an Agreement if it is accepted on time and completely, in writing, the failure of which shall deem an Agreement to be unexisting. Deviations from sub-clauses in the acceptance of the Offer shall be deemed unmentioned so that the Agreement shall be concluded in complete accordance with the Offer.
4.2 “On time”, as specified in the previous Article, means that the acceptance of the Offer shall arrive at the office of Sympafix within the time limit stated in the Offer and, if no such time limit is specified, within 30 working days after the date of the Offer.
4.3 In all other cases any orders from the Buyer shall only bind Sympafix and therefore an Agreement shall only be concluded after Sympafix has confirmed this in writing, or Sympafix has commenced with the implementation of the order, without prejudice to the provisions stated in Article 4.5 of these Terms and Conditions. In the case that Sympafix has not confirmed the order within 10 working days after the order has arrived at its offices and if Sympafix have not commenced with the implementation of the order within that time limit, then no Agreement shall have been concluded.
4.4 The order confirmation from Sympafix shall be considered accurate, unless an objection to the contrary is made to Sympafix in writing upon receipt of the confirmation. In this event, an Agreement shall not have been concluded.
4.5 Sympafix shall have the right to verbally accept an order. The verbal acceptance of an order shall only be binding upon Sympafix if it was agreed by an authorised person. In this event the existence and the content of the Agreement shall be subject to Dutch evidential law.
4.6 Possible subsequent supplementary agreements or amendments, including (verbal) agreements and/or confirmation by employees of Sympafix or made on behalf of Sympafix by sales personnel, agents, company representatives or other intermediaries, shall only bind Sympafix in the event and as far as these persons have been granted written authorisation from Sympafix.
4.7 For those services, for which no Offer or even order confirmation would be sent because of their nature and scope, the invoice shall also be deemed to act as the order confirmation, which in its turn is deemed to contain the accurate and complete details of the Agreement.
4.8 In the event – entirely at the discretion of Sympafix – that the Buyer appears to be unable to fulfil the payments specified in the Agreement, Sympafix shall have the right to dissolve the Agreement without the prerequisite of further default or judicial intervention, without prejudice to its remaining rights and with no liability for potential damages.
4.9 Sympafix shall have the right to instruct a third party to undertake certain work.
Article 5. Prices
5.1 Unless agreed otherwise and in writing, all prices are fixed and are deemed to be carriage paid place of delivery, exclusive of VAT and other official duties, as well as being exclusive of all expenses necessary for the execution of the Agreement, among which - but not limited to - transport charges, packaging, insurance etc.
5.2 Sympafix shall, insofar as no delivery has been carried out, at all times have the right, even after conclusion of the Agreement, to make adjustments to prices as a result of changes in one or more circumstances that may have affected the quoted prices.
5.3 A quotation shall not bind Sympafix to a partial delivery of the Products included in the Agreement for a concordant part of the quoted price.
5.4 Offers or quotes shall not automatically apply to repeat orders.
Article 6. Payment and surety
6.1 Payment shall be made within 30 days after the invoice date, unless stated otherwise.
6.2 All payments shall be made within The Netherlands, in Euros, and the Buyer shall have no right to suspension, deduction or off-setting of costs.
6.3 In the event that Sympafix accepts a security in connection with a payment, the security shall only be accepted as surety and payment shall not be deemed completed until all outstanding receivables have been credited or have been received by Sympafix in cash.
6.4 Any payments made by the Buyer shall first be added to outstanding interest, then to the debt collecting charges and/or administration costs incurred by Sympafix and only then to the oldest outstanding receivable/invoice.
6.5 In the event that the Buyer defaults on an obligation toward Sympafix – whether it be completely, partially or late - or has requested a moratorium of payment or is declared bankrupt or has made an application in this respect or has gone into liquidation, he shall be deemed to be officially in default and all outstanding payments to Sympafix shall be due at call and interest shall be outstanding from this date or the previous due date. The Buyer shall be obliged to pay for all out of court expenses that Sympafix incurs without prejudice to its claim for potential legal expenses.
6.6 Additionally Sympafix shall have the right, in such an instance, to suspend the (further) execution of its duties for a maximum of 2 months and to reclaim the Products owned by Sympafix or to partially or fully dissolve the existing Agreement and any other potential Agreements made with the Buyer, without prejudice to the remaining rights. During the suspension period, Sympafix shall have the right and ultimately the obligation, to decide whether to (re)commence execution or to completely or partially dissolve the suspended Agreement(s).
6.7 Where there are justified reservations with regard to the Buyer’s solvency, Sympafix shall have the right to make deliveries under C.O.D. terms, whereby the delivery costs shall be charged to the Buyer or (several) forms of security shall be required to ensure that payments as well as other obligations are fulfilled. The Buyer is in particular obliged to cooperate in establishing a (silent) right of distraint or lien to the goods as specified by Sympafix. In the event that the Buyer refuses or is unable to provide adequate security, Sympafix shall have the right to rescind the Agreement in part or in full without judicial intervention, without prejudice to its remaining rights and without being held liable for compensation.
Article 7. Delivery risk and delivery date
7.1 Unless otherwise agreed, the delivery terms are ex works from the location of the factory/warehouse/or other storage areas as soon as Sympafix has made the Products available to the Buyer. As soon as the Products are available to the Buyer, the risk of loss or damage of these Products shall be transferred to the Buyer. The Buyer is obliged to check the Products and/or packaging for any shortages and/or visible damage upon collection, or to have them checked by whomever is collecting the Products on their behalf. Defects should be reported within 14 days after delivery, in accordance with Article 13 of these Terms and Conditions.
7.2 The Buyer should mark down any shortages of or damages to the Products and/or packaging that (may) be established upon delivery on the delivery note, the invoice and/or the transport documentation. Failure to do so will result in the damaged goods not being retaken. Decisions will be based on the administration of Sympafix.
7.3 Sympafix shall have the right to partial consignments (partial deliveries) of the Products, which may be invoiced separately. In this event the Buyer shall be obliged to make payments in accordance with Article 6 of these Terms and Conditions.
7.4 Delivery periods shall be estimates. The proposed delivery date should not be viewed as being the ultimate lead-time, unless expressly agreed otherwise.
7.5 Sympafix shall not be liable for compensation as a result of late deliveries. In the event of repeated delays in delivery, the Buyer shall formally declare Sympafix to be in default and notify them of a final (reasonable) date for delivery. In the event that the delivery has not taken place within the agreed final delivery period, the Buyer shall have the right to dissolve the Agreement, unless Sympafix has invoked force majeure (see Article 10 of these Terms and Conditions).
7.6 In the event that the Products, after notification from Sympafix that they are ready for collection, have not been collected by the Buyer within a period of 4 weeks, Sympafix shall have the right to resell these Products. The potential loss of profit and the expenses will be charged to the Buyer, without prejudice to the remaining rights of Sympafix.
Article 8. Transport and risk
8.1 Instructions from the Buyer to Sympafix to arrange transport, carriage and/or insurance of the Products, shall only be undertaken by Sympafix if the Buyer has confirmed in writing that he will bear the costs thereof and accept and cover the resulting (additional) risk by means of (supplementary) insurance, thus without prejudice to the provisions as stated in Article 7.
8.2 The Buyer shall bear the costs and risks for the transport of the Products, even in the event that the hauler insists on adding a clause to the bill of lading, transport addresses, etc. stating that the sender of the Products shall bear the costs and risks arising from transport damages.
Article 9. Retention of title
9.1 Sympafix shall retain the title to all Products delivered to the Buyer until Sympafix have received full payment for the delivery based on this Agreement, including potential compensation payments, expenses, interest and penalties and also if security payments have been made
9.2 The Buyer shall not be authorised to pledge, in any way encumber, or dispose of the Products under retention of title.
9.3 In the event that a third party claims the delivered Products under retention of title, or asserts to have a right to the same, the Buyer shall be obliged to inform Sympafix as quickly as can reasonably be expected, and shall also inform such third party that the Products belong to Sympafix.
9.4 The Buyer shall be obligated to store the Products separately, to mark them clearly as the property of Sympafix, and to insure and continue to insure them against fire, water and other damage as well as against theft and provide the insurance policy for the perusal of Sympafix at their first request, until title in such Products has vested in the Buyer pursuant to this Article 9.
9.5 As long as the retention of title applies to the Products delivered by Sympafix to the Buyer, the Buyer shall not be authorised to process, manipulate or modify the Products, except and in as far as in the ordinary course of business.
9.6 In the event that the Buyer fails to pay any sums due by the date that such payment is due, Sympafix shall have the right to retake all unpaid Products insofar as they have already been delivered to the Buyer. The Buyer shall authorise the return of all Products to Sympafix at his expense. In the event that the Buyer has disposed of any Products prior to title vesting in him, Sympafix shall be entitled to take other Products that are in the possession of the Buyer (notwithstanding that payment in respect of such Products may have been made already or is not yet due) to the value of the unpaid Products.
9.7 The Buyer hereby grants Sympafix and its designated representatives the irrevocable right to enter his premises for the purpose of recovery of all Products in which Sympafix retains title pursuant to Article 9.6..
Article 10. Force majeure
10.1 Sympafix obligations to implement the Agreement shall be suspended for the period that the implementation is prevented as a result of force majeure. Prevention shall be interpreted as “with serious difficulty”.
10.2 Force majeure also comprises war, threat of war, civil war, unrest, risk of civil unrest, fire, earthquake, water damage, flooding, strike, occupation of premises, obstructions to import and export, government regulations, defects on machinery and interruptions in the delivery of water and/or power to the premises of Sympafix.
10.3 Force majeure also comprises circumstances such as specified in Article 10.2 of these Terms and Conditions occurring within the companies of third parties, whose services, materials, raw materials, etc. Sympafix requires either fully or partially.
10.4 Forces majeure also comprises circumstances as those specified in Article 10.2 of these Terms and Conditions, whereby damage occurs during storage or transport ofthe Products, whether or not occurring under personal management.
10.5 Force majeure also relates to all other circumstances outside Sympafix’ scope of control, with the exception of intent or gross negligence on the part of Sympafix and of those people who have been charged by Sympafix with the responsibility of executing the Agreement.
10.6 In the event that the execution of (a part of) the Agreement is delayed by more than a month, both Parties shall have the right to dissolve the (remainder of) the Agreement. This shall not automatically lead to reciprocal indemnification. Sympafix shall return any possible advance payments on the condition that the services already rendered shall be paid for by the Buyer and/or shall be off-set pro rata against the agreed invoice value.
Article 11. Guarantee
11.1 Sympafix guarantees that the parts and accessories of its delivered Products will be in proper working order for a period of 1 year, from the date of delivery. Sympafix guarantees that the battery and charger of the Products, if included in the delivery by Sympafix will be in proper working order for a period of 6 months, to be counted from the date of delivery.
11.2 In the event that the delivered Products do not satisfy these guarantees, the Buyer shall make a report in writing to Sympafix in accordance with Article 13 of these Terms and Conditions. Sympafix shall only be obliged to replace the defective part or accessory and shall not be liable for further charges of whatever nature. The Buyer, here and now and for the future, agrees to return the part or accessory that is to be replaced to Sympafix at their first request and to transfer the title of the part of accessory to Sympafix. In accordance with Article 11.1., the guarantee for the part or accessory that is to be replaced shall be valid for the remainder of the guarantee period that applied for the original part or accessory.
11.3 The guarantee named in this Article shall not be valid for defects that result from inappropriate or incorrect use or when the Buyer or third parties have made modifications or have attempted to make modifications to the Products without the written consent of Sympafix or if the Products have been used for unsuitable purposes.
11.4 In the event that the guarantee made by Sympafix relates to a part or accessory that was produced by a third party, the guarantee shall be limited to the manufacturers’ guarantee.
Article 12. Liability
12.1 Sympafix shall not be liable for any damages, barring in cases where wilful or gross negligence cannot officially be excluded. This refers to direct and indirect damage, operational damage and damage as a result of thirdparty liability. In the case of wilful or gross negligence the burden of proof rests with the Buyer.
12.2 Sympafix shall not be liable for direct or indirect damages, operational damage and damage as a result of third-party liability caused by Sympafix’ employees or others employed during the execution of the Agreement, who have not been made responsible for its execution. This exclusion also comprises intent and gross negligence.
12.3 With the exception of the specifications of Article 11, Sympafix shall not be liable for direct or indirect damage, company damage and damage as a result of liability of the Buyer held against third parties, caused by or in connection with the type of defects of the delivered Products or by the fact that the delivered Products do not consist of the quality that the Buyer would be expecting on the basis of the Agreement.
12.4 Subject to Sympafix’ fulfilling the conditions as specified in Article 13, the liability of Sympafix shall, at all times, be limited to the net invoice value of the delivered Products or, at the discretion of Sympafix, to the maximum amount paid out by the liability insurance of Sympafix.
12.5 As far as those Products are concerned which are bought in by Sympafix from third parties, the liability towards the Buyer for those shall never exceed the third-party liability to Sympafix.
12.6 For delivered Products and/or in the event of services undertaken within the framework of delivery, the Buyer shall indemnify Sympafix against claims from third parties, in those instances where Sympafix’ liability towards the Buyer has been excluded.
Article 13. Complaints and returns
13.1 Without prejudice to what is mentioned elsewhere in these Terms and Conditions, all complaints regarding immediately visible defects must be reported to Sympafix in writing within 14 days after delivery, with exact details of the nature and extent of the complaints being provided. The same lead-time of 14 days after the delivery date shall also apply to invoices.
13.2 To those complaints with regard to flaws/defects that may not be apparent before use (and are therefore not visible on delivery) a final time limit of 6 months after delivery shall apply, whereby the complaint must be made within 8 days following the detection of the defect.
13.3 After the time limit(s) has (or have) expired, the Buyer shall be deemed to have accepted the delivery, respectively the invoice, and, as a result, Sympafix shall no longer accept complaints.
13.4 Honouring complaints for Products that have been delivered shall only occur in accordance with the terms of Article 11.
13.5 The submission of a complaint shall never release the Buyer from his payment obligations.
13.6 Returns of delivered Products can only be undertaken after prior written agreement from Sympafix and after Sympafix has allocated a goods’ return number (GRN) to these Products. The Buyer shall include the GRN on the delivery note. The Buyer shall return the Products, carriage paid, to the warehouse of Sympafix in The Netherlands.
13.7 In the case that the Buyer returns Products in accordance with Article 13.6, excluding flaws/defects, then the Buyer shall owe 20% of the invoice value pertaining to these Products to Sympafix. Products with a sell-by date cannot be returned, with the exception of flaws/defects and without prejudice to the terms of Article 13.6.
Article 14. Intellectual property rights
14.1 All rights to intellectual and industrial property with regard to goods and services that are or shall be developed, established and registered, such as copyright, design rights, patent rights, database rights etc., shall solely rest with Sympafix.
14.2 The Buyer is not entitled to claim any intellectual and industrial property rights relevant to the Products. Furthermore, the Buyer is not entitled to claim any rights to intellectual and industrial property corresponding with intellectual and industrial property rights held by Sympafix or which could confuse the general public.
14.3 The Buyer shall under no circumstances be permitted to alter the Products or to change or remove any trademarks in or on the Products referring to the manufacturer or to Sympafix.
Article 15. Jurisdiction
In the event that the Buyer consists of more than one legal person, then they shall all be liable for fulfilling the obligations of the Buyer to Sympafix.
Article 16. Abbreviated limitation period
All legal claims of the Buyer on Sympafix based on this Agreement or the law shall expire after the period of one year after the limitation period has commenced.
Article 17. Secrecy
Sympafix shall handle all information provided by the Buyer as strictly confidential; this also applies after termination of the business relationship. The Buyer shall be obligated to secrecy with regard to all information he has received or has been made aware of in respect of Sympafix and its products.
Article 18. Applicable Law
18.1 The legal relationship between Sympafix and the Buyer, with the exclusion of the Vienna Purchase Agreement (Convention on International Sales of Goods 1980) shall be governed by Dutch law.
18.2 The official Dutch version of these Terms and Conditions is deemed binding. In the event of any legal disputes with regard to one or more clauses of these Terms and Conditions, the remaining clauses shall not be affected. Furthermore, Article 2.5 shall apply in this case.
18.3 With regard to the interpretation of international commercial terminology, the “Incoterms 2000” as compiled by the International Chamber of Commerce in Paris (I.C.C.) are applicable, meaning the most recent version thereof.
Article 19. Autorised Judge
19.1 All disputes that arise from the legal relationship between Sympafix and the Buyer shall be submitted for judgement to and settled by the Dutch courts. If the court of first instance is authorised, then disputes shall exclusively be submitted for judgement to the court in Rotterdam.
19.2 Notwithstanding what is stated in Article 19.1 Sympafix shall have the right to submit the dispute to the authorised civil judge for judgement, in accordance with the normal competency rules, or to resolve the dispute by means of arbitration or binding advice.