General terms Compass Marine Medical B.V. with its registered office in Weert, filed with the Chamber of Commerce under number 87811332.
1. In these terms Compass Medical, shall be taken to mean: Compass Medical Group B.V and its subsidiaries and Compass Marine Medical B.V., with its registered office in Weert, Nederland, registered in the trade register of the Chamber of Commerce in Weert under number 87811332.
2. In these terms “Purchaser” shall be taken to mean: each (legal) person who has concluded an agreement with Compass Medical, or wishes to conclude an agreement with Compass Medical and, in addition to this legal person, also his representative(s), authorised agent(s) and legal successor(s).
Article 1: General/Applicability
1. These general terms shall apply to all offers by Compass Medical to Purchaser and to all agreements between Compass Medical and Purchaser, and concern all items, services and other activities to be delivered by Compass Medical.
2. Departures from these terms shall only be valid if and in so far as they have been agreed in writing between Compass Medical and Purchaser.
3. The applicability of the general terms of Purchaser (to which a reference is made in documents from Purchaser) shall be explicitly rejected in this respect.
4. All offers of Compass Medical shall be free of obligations and shall not commit Compass Medical, unless explicitly agreed otherwise in writing.
5. An agreement shall only be concluded when Compass Medical has confirmed the assignment of Purchaser in writing or when Compass Medical commences the implementation of the assignment.
6. Compass Medical shall never agree to undertake the transport of goods. In the event Compass Medical agrees to undertake forwarding in the broadest sense (including acting as a tax representative), the version of the Dutch Forwarding Terms (General terms of FENEX, Dutch Organisation for Forwarding and Logistics) that was most recently filed at the Registrar of the courts in Amsterdam and Rotterdam 1st May 2018 shall apply, in addition to these terms.
Article 2: Managed Services for Product Supply
All managed services for the product supply by Compass Medical to the Owner/Management company as an independent contractor under a Frame Agreement shall be set forth in one or more statements to be issued by Compass Medical and accepted by the Owner/Management company (each, a “Statement of Product Supply”) The initial accepted Statement of Product Supply will be attached to the Frame Agreement as Schedule 2. Additional Statements of Product Supply shall be deemed issued and accepted only if accepted and executed by each party.
Article 3: Prices
1. All prices shall be net prices and exclude VAT, transport and packaging costs, unless explicitly agreed otherwise in writing, and shall be based on the prices and exchange rates that apply at the time of the offer.
2. If material prices, freight charges, wages, taxes, import duties, levies or other expenses on the part of the government are introduced or increased after the date of conclusion of the agreement with Purchaser, however before the delivery of the items and/or services and/or other activities, as well as in other cases when certain factors increase the price in the opinion of Compass Medical , for example exchange rate fluctuations, price changes regarding raw materials and semi-finished products, and price changes introduced by suppliers, Compass Medical shall be entitled to change the agreed price and charge a proportional increase of the price to Purchaser, without Purchaser being entitled to dissolve the agreement.
3. Compass Medical shall notify Purchaser at once about price increases.
Article 4: Delivery of items, services and other activities, providing samples
1. Delivery shall take place in a location to be determined by Compass Medical on the basis of the stipulation “ex works”, in conformity with Incoterms 2020 or its most recent publication, unless explicitly agreed otherwise in writing.
2. Partial deliveries shall be allowed and can be charged by Compass Medical at once.
3. The terms of delivery as stated by Compass Medical for items, and implementation periods for services and/or other activities shall apply as indicative, they shall never be considered as fatal periods and shall not be binding for Compass Medical.
4. If the delivery periods and implementation periods are exceeded, this shall not entitle Purchaser to claim compensation in whatever form, to not accept the agreement or entirely dissolve the agreement or partly or wholly suspend the compliance with any obligation of Purchaser from the agreement, unless Purchaser is entitled to do this by virtue of statutory provisions (imperative law). The obligation of Compass Medical to supply shall be complied with by offering the items once-only. The receipt signed by Purchaser or by the person who represents Purchaser shall serve as conclusive evidence of delivery.
5. If Purchaser does not take delivery of items or does not do this within the specified time, Compass Medical shall be entitled to store the items at the risk of Purchaser or, at its option, to sell them to a third party. Storage and other costs shall be incurred by Purchaser.
6. When the required data for the implementation of the delivery have not been made available to Compass Medical within the specified time by Purchaser, the delivery periods shall in any case be deferred with the same period.
7. Samples shall only be provided by way of specification, without the item having to comply with this sample.
Article 5: Payment
1. All payments shall take place within 30 days after the invoice date, unless explicitly agreed otherwise in writing.
2. In case of overdue payment, Purchaser shall be in default without further notice of default and Purchaser shall pay a contractual interest equal to 10% as from the due date. All extrajudicial collection costs incurred by Compass Medical that go beyond sending a single (possibly repeated) warning or merely submitting a (non-accepted) settlement offer, obtaining simple information or drawing up a file in the usual way shall be incurred by Purchaser. These extrajudicial costs shall be fixed at a minimum of 15% of the amount to be collected, with a minimum of Euro 1,000.-.
3. Purchaser shall not be allowed to set off a claim of Purchaser against Compass Medical against a claim of Compass Medical against Purchaser.
4. Payments by Purchaser shall first be deducted from the extrajudicial and judicial (collection) costs to be paid by Purchaser, the interest and subsequently from demandable invoices, whereby older invoices have priority to new invoices, irrespective of whether the indications of payments are different.
Article 6: Packaging
1. The packaging and labelling of products to be supplied shall be determined by Compass Medical as a good entrepreneur in conformity with the applicable statutory standards.
2. Purchaser shall be responsible for storage or processing of the empty/used packaging materials in conformity with the applicable statutory provisions.
3. The pallets, crates etc. made available by Compass Medical for packaging and shipment, whether or not with a deposit, shall remain the inalienable property of Compass Medical.
4. Purchaser shall be obliged to return this packaging at its own expense and risk to Compass Medical, to the address stated by Compass Medical, unless explicitly agreed otherwise.
5. The packaging possibly charged by Compass Medical shall be credited at the full price, providing it is in a good condition and providing it is returned carriage paid within one month after the date of the invoice in question.
6. Compass Medical shall be entitled to charge Purchaser for the costs of replacement, repair or completion with regard to returned damaged or incomplete packaging materials/packaging, to be decided by Compass Medical based on fairness and reasonableness. If Compass Medical charged a deposit for the packaging, it shall be entitled to deduct these costs from the deposits to be credited and, if necessary, recover the extra costs from Purchaser.
Article 7: Retention of title, right of pledge and right of retention
1. Compass Medical shall supply the items to Purchaser on the suspensive condition that Purchaser fully meets its obligations that exist towards Compass Medical at any moment. The retention of title implied in this also includes (i) new items created with the supplied items, (ii) all claims regarding considerations of items supplied on the basis of this agreement or any other agreement of whatever nature by Compass Medical to Purchaser or items, services and/or other activities still to be supplied by Compass Medical to Purchaser and, (iii) claims due to failure in complying with the agreements referred to under (ii), which result in damages and compensation of extrajudicial and judicial costs, including contractual and statutory interests, fines and incremental penalties.
2. In the event that Purchaser does not comply with its obligations, Compass Medical shall be entitled to take the supplied items back without any warning, notice of default or judicial intervention, without prejudice to the other rights of Compass Medical that are connected to Purchaser failing to comply with its obligations. Purchaser shall make the supplied items available to Compass Medical and, if necessary, offer Compass Medical access to all areas where goods of Compass Medical are located.
3. All items, funds, monetary values, insurance proceeds and/or documents which Compass Medical has in custody and/or shall obtain for whatever reason and/or for whatever assignment for or on account of Purchaser, or which Compass Medical has to pay and/or will have to pay to Purchaser, shall serve Compass Medical as possessory pledge for all claims that Compass Medical has and/or may have against Purchaser.
4. Compass Medical has a right of retention against everyone with regard to all items, funds, monetary values, insurance proceeds and/or documents, which Compass Medical has in custody and/or shall obtain for whatever reason and/or for whatever assignment.
5. If Purchaser does not pay the claim, Compass Medical shall be entitled to sell the security or all items that Compass Medical keeps in custody on account of the right of retention (in public) according to the manner stipulated by law.
Article 8: Failures; examination and time limits for lodging a complaint
1. In the event of delivery of items, Purchaser shall examine the supplied items within on receipt of goods, however in any case before Purchaser uses, consumes or sells on the items - and report any complaints regarding visible failures and/or failures that are observable with any examination in writing to Compass Medical within 5 days after the expiry of the examination period, in default of which each claim of Purchaser against Compass Medical shall lapse. Complaints with regard to failures that are first discovered later when Purchaser uses or consumes the items shall be reported to Compass Medical in writing within 14 days after they should have been discovered in reason by Purchaser, however at the latest 2 months after delivery, in default of which each claim of Purchaser against Compass Medical shall lapse. With regard to items with an expiry date, it applies that each claim of Purchaser against Compass Medical shall lapse when the expiry date printed on the items or on the packaging has expired.
2. In the event of services and/or other activities, Purchaser shall have examined them within 14 days after having completed them and if there are any complaints with regard to visible failures and/or failures that are observable with any examination, Purchaser shall report them to Compass Medical in writing within 5 days after the expiry of the examination period, in default of which each claim of Purchaser against Compass Medical shall lapse. Failures that are first discovered later when Purchaser uses or consumes the items shall be reported to Compass Medical in writing within 14 days after they should have been discovered in reason by Purchaser, however at the latest 2 months after completion of the services and/or other activities, in default of which each claim of Purchaser against Compass Medical shall lapse.
3. Despite possible complaints with regard to failures, Purchaser shall be obliged to pay the agreed price within the specified time.
Article 9: Guarantee provision
1. With due observance of article 8 (Failures: examination periods and time limits for lodging a complaint) Compass Medical shall guarantee that the items, services or other activities to be supplied meet the usual requirements and standards that can be set in this respect and that they shall be free of whatever failures. If Compass Medical makes use of services of activities of third parties with the implementation of the agreement or if Compass Medical has used the supplied items of third parties, the guarantee shall be limited to the guarantees provided by these third parties.
2. The guarantee shall apply during 2 months after delivery of the items and/or after performing the services and/or other activities. If there are items for which a latest date of durability has been established, the guarantee shall lapse after this date has expired. If Purchaser has discovered the failure after the expiry of the guarantee period, Purchaser cannot commence legal action anymore or advance defences for the reason that the supplied items, the performed services or activities do not comply with the agreement.
3. If a supplied item does not meet the aforementioned guarantee, the item in question shall be replaced or repaired or compensated entirely or partly, to be decided by Compass Medical without charging costs to Purchaser, on the condition that the complaint has been lodged in good time in accordance with article 8. Items that are returned to Compass Medical for repair and/or replacement and/or compensation shall be sent at the risk of Purchaser. If the implemented services and/or other activities do not comply with the aforementioned guarantee, Compass Medical shall correct the failure(s) that come under the guarantee without charging costs to Purchaser, on the condition that the complaint has been lodged in good time in accordance with article 8.
4. The guarantee shall not apply when the failure was caused as a result of (i) any government regulation regarding the nature or quality of the applied materials, (ii) the failure to comply with instructions of Compass Medical and/or the producer, (iii) incorrect, improper use or misuse, including the use by an incompetent person, (iv) poor treatment, including treatment by an incompetent person (v) maintenance that has not been carried out or which has been carried out incorrectly, (vi) using or letting others use the item for purposes for which the item is not intended.
5. The guarantee shall only be provided to Purchaser and not to successive successors in title.
6. Compass Medical shall not be obliged to provide any guarantee as long as Purchaser has not complied with its obligations.
Article 10: Liability
1. The liability of Compass Medical shall be limited to the amount that will be paid under the liability insurances of Compass Medical. If there is no payment under the liability insurances, the liability of Compass Medical shall be limited to the net invoiced value of the items, services or other activities in question (with a maximum of Euro 10,000 - per event or series of events as a result of one and the same cause), unless Purchaser proves that the loss was caused with deliberate intent or through wilful recklessness of Compass Medical itself or its managers.
2. Except for provisions of imperative law with regard to (product) liability, Compass Medical shall not be liable for loss as a result of improper use, processing or treatment of the supplied items, whether or not in violation with the standards and values that apply in the branch.
3. However, Compass Medical shall never be liable for: a. loss, caused by subordinates of Compass Medical and/or by auxiliary persons called in by Compass Medical with deliberate intent or wilful recklessness that can be equated with deliberate intent; b. indirect loss, including indirect loss caused by an inadequate item, consequential loss, lost profit, missed savings, loss caused by product recalls, loss through business interruptions, loss of clients, and loss of reputation and/or goodwill; c. damage to property in the care, custody or control of, but not owned by the insured, including damage that was caused to items in the vicinity of the place where work is carried out as a result of or during the implementation of services and/or other activities.
4. Announcements by or on behalf of Compass Medical with regard to quality, composition, treatment in the broadest sense, possibilities of application, qualities etc. of the goods shall not bind Compass Medical, unless they are drawn up in writing and explicitly in the form of a guarantee.
Article 11: Suspension, termination and dissolution
1. Compass Medical shall be entitled to suspend the implementation of the agreement or, at its option, terminate or dissolve the agreement wholly or in part with immediate effect through a written statement and without prior notice of default, notification of judicial intervention, while retaining all its rights to compensation of costs, loss and interest to which it is entitled, and without Compass Medical being obliged to pay any compensation, if: a. Purchaser is declared bankrupt, has applied for a moratorium or bankruptcy or is put into administration; b. Purchaser has not complied with one or several of its (payment) obligations resulting from or otherwise related to the agreement, or has not complied with these obligations properly, fully or in time, or when it is certain that compliance with the obligations will be impossible without a breach; c. Compass Medical has good grounds for fearing that Client will not be able and/or is not or will not be prepared to comply with its obligations; d. Purchaser takes a decision to wind up and/or close down Purchaser’s company/activities e. Purchaser loses the disposition over its assets or, when Client is a natural person, is placed under guardianship, or passes away;
2. All claims that Compass Medical should have against Purchaser at the time that one or several conditions apply as referred to in paragraph 1 of this article, shall be due and payable fully and forthwith.
Article 12: Circumstances beyond one’s control
1. Compass Medical shall not in any event be obliged to comply with its obligations from the agreement and shall not be obliged to pay compensation in the event of circumstances beyond its control. Circumstances beyond its control on the part of Compass Medical shall include the following circumstances:
a. mobilisation, fire, smoke, explosion, water as an extinguishing agent, theft, natural disasters, job strikes, traffic restrictions, road blockades, war, danger of war, export and import bans, transport problems, restrictive measures of any government, accidents at work and/or operational failures;
b. sickness of staff of Compass Medical or staff of auxiliary persons called in by Compass Medical;
c. a general lack of required raw materials and other raw materials for realising the items, services or items to be supplied by Compass Medical and/or services required for other activities;
d. not foreseeable stagnation with suppliers or other third parties on which Compass Medical depends;
e if Purchaser, third parties of persons for whom Compass Medical is liable do not or do not fully comply with any regulations set by the government or instructions given by the government or on the part of Compass Medical (including those in these terms);
f. any failure in performing an activity, which was not assigned to Compass Medical explicitly or separately;
g. all other circumstances that Compass Medical could not have avoided, prevented or halted in reason, even if these circumstances could already have been anticipated at the time of concluding the agreement. This shall also include similar circumstances with auxiliary persons as well as an attributable non-performance of auxiliary persons.
2. In the event of circumstances beyond its control, Purchaser shall only be entitled to proceed with dissolving the agreement in so far as agreement cannot be implemented or when it has been established that compliance will not be possible.
Article 13: Indemnification Purchaser
Purchaser shall indemnify Compass Medical against claims of third parties to compensate loss resulting from, or related to the delivery of items and/or services and/or other activities by Compass Medical. As part of its obligation to indemnify, Purchaser shall be obliged to compensate the reasonable costs of defence against claims of third parties, amongst others in respect of Compass Medical, unless the loss is the result of deliberate intent or wilful recklessness of Compass Medical itself or of its managers.
Article 14: Expiry period
All legal actions and defences of Purchaser and third parties in relation to Compass Medical shall terminate after six months after the expiry of an agreed guarantee period and, if there is no guarantee period, after the end of twelve months, counted from the date of delivery of the items, performing the services or other activities.
Article 15: Return shipments
1. Return shipments shall not be allowed without prior written approval of Compass Medical.
2. If return shipments take place without permission, the costs of these return shipments shall be incurred by Purchaser. Moreover, Compass Medical shall be entitled to charge administration costs and be free to store the goods at the expense and risk of Purchaser (if necessary, among third parties) and keep them at the disposal of Purchaser.
3. Return shipments without permission of Compass Medical shall not discharge Purchaser in any way whatsoever from its (payment) obligations.
Article 16: Applicable law and jurisdiction
1. All agreements and legal relationships to which these terms apply shall be governed by Dutch law, on the understanding that: a. The United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna Sales Convention) shall not apply and shall be excluded explicitly; b. In so far as the retention of title implied in article 6 in these terms is more favourable for Compass Medical, and after the import of the items concerned in a different country than the Netherlands, this retention of title shall be governed by the law of that country to its full extent and in particular also in its full scope.
2. All disputes which arise between Compass Medical and Purchaser shall be submitted to the court in the Netherlands for a decision, with the exclusion of any other court.
Article 17: Decisive test, change of terms, invalidity and nullity articles
1. In the event of a difference between the Dutch text of these terms and the text of these terms stated in any other language, the Dutch text of these terms shall be decisive.
2. These terms can be changed by Compass Medical unilaterally. If an article of these terms should be or become invalid and/or be nullified, the validity of the other articles shall not be affected as a result of this. Instead of the article that has been invalidated and/or nullified, it shall be deemed that the provision has been agreed that most approaches the intention and the spirit of the article that has been invalidated and/or nullified within the scope of what is possible by operation of law.
LEGAL DISCLAIMER To all agreements whereby we act as seller our general terms and conditions of sale, delivery and payment apply, and to all agreements whereby we act as buyer our general terms and conditions of purchase apply, which you have received from us and which are published at www.compassmarinemedical.com. These terms and conditions include a governing law and jurisdiction clause. We expressly reject the applicability of your terms and conditions.
