General Terms and Conditions

Section 1

General Scope of Application

The terms and conditions set forth below apply to all offers, sales, deliveries and other services of/rendered by Medêri N.V. Our conditions apply exclusively. We do not recognize any terms and conditions of customer that contradict or deviate from our conditions and such terms and conditions of customer are explicitly rejected, unless we have expressly agreed to such terms and conditions of customer in writing. Our terms and conditions shall also apply if we supply deliveries to customer without reservation, in full knowledge of conflicting or divergent terms applied by the customer. Our terms and conditions shall also apply to all future transactions with the customer, even if they are not expressly agreed again. This shall not affect any rights to which we are entitled pursuant to statutory provisions or other arrangements that go beyond the provisions of these General Terms and Conditions.

Section 2

Conclusion of Contract

All offers are subject to change and non-binding.
Price lists, newsletters, brochures, and other product descriptions that form part of the offer documents shall be approximate and descriptive only, unless they are expressly designated as binding. These shall not be deemed to constitute any agreement or guarantee of corresponding quality or durability of the products.
We reserve all ownership, copyright and other intellectual property in all tender documents, illustrations, drawings, calculations, brochures, catalogues, models and samples. Such documents are not permitted to be disclosed to third parties. The customer shall surrender all offer documentation without delay at our request if this is no longer required in the ordinary course of business.
Orders shall become binding only when confirmed by issue of written order confirmation within two weeks, provided it was issued by an authorized representative of Medêri N.V., or if we carry out the order. Order confirmation issued using automatic devices without a signature and name shall be deemed to have been made in writing. Our silence concerning quotes, orders, demands or other statements made by the purchaser shall be considered to constitute consent only if this was agreed in advance and in writing. We shall not be bound by order confirmations containing obvious errors, misspellings or miscalculations.
We shall be authorized to terminate the agreement, in whole or in part, if the customer applies for insolvency or comparable proceedings concerning itself or if a third-party request for the insolvency or comparable proceedings concerning the customer.

Section 3

Scope of Delivery

Our written confirmation shall be decisive with respect to the scope of delivery. Any changes made by the customer to the scope of delivery require our written order confirmation in order to become binding. We reserve the right to make amendments to the delivery of the products, provided such deviations are nonmaterial and are reasonable for the customer.
Customer expectations with respect to the products or their use shall not constitute characteristics of the products if these have not been expressly agreed as such, in writing.
Partial delivery is permissible.

Section 4

Delivery Date

Delivery dates and deadlines must be agreed in writing. Delivery dates and deadlines are non-binding unless these have been previously described as binding.
Time limits shall begin upon issue of the order confirmation by us, but not before the requisite documentation, permits and approvals to be provided by the customer have been furnished in full, all technical issues have been clarified and any agreed advance payment made or, in the case of overseas transactions, on receipt of full payment (the “deliveries”). Deadlines shall be adjusted accordingly in these cases. Compliance with the delivery time shall be contingent on the timely and proper fulfillment of other obligations of the customer.
The delivery time is observed if the products have left the warehouse before expiration of the delivery time or if we have notified the customer of readiness for collection or dispatch. Compliance with the delivery time is subject to our proper receipt of the deliveries, in particular timely receipt, unless we are responsible for the cause of improper or untimely delivery. In the event of improper or untimely delivery to us, we shall be entitled to suspend the contract until we have received all deliveries. We shall notify the customer without delay if we intend to exercise our right of suspension.
In the case of cross-border deliveries, the customer must make all declarations for export from Aruba and import into the destination country and take all actions, in particular procure the requisite documentation for customs clearance and comply with any requirements concerning export controls or other restrictions on marketability. All deliveries are subject to the proviso that there are no national or international regulations precluding performance, in particular export control provisions, as well as embargoes or other sanctions. Delays caused by export checks or approval processes shall override deadlines and delivery times.
We shall not be held responsible for any delays to delivery and attributable to force majeure and due to events, that materially complicate delivery or render delivery impossible, such as strikes, lockout, official measures, energy shortages, including in instances in which the same are experienced by downstream suppliers and subcontractors, even in the case of binding deadlines and dates. This shall entitle us to delay the delivery or performance for the duration of the impediment, plus an appropriate lead-time. If the impediment lasts longer than three months, the customer is entitled after a reasonable grace period, to terminate the contract partially for the part that has not yet been fulfilled.
If we are in default of delivery, the customer shall be entitled to terminate the contract upon expiration of a reasonable grace period set by the customer upon our entering into default of delivery. The grace period and, if applicable, the subsequent termination, will have to be to communicated to us in writing.
If the customer is unable to accept the products on the scheduled delivery date, the customer is required to inform us thereof in writing in advance. In that event the customer will be given a reasonable period to still accept the products and failure to comply therewith will result in default of acceptance. In this case, the risk of the accidental loss or destruction of the goods or accidental deterioration of the purchase item shall pass to the customer for the duration of the period during which the latter is in default of acceptance. In event of default by the customer, we shall be entitled to claim reimbursement of any damages suffered, including any additional expenses incurred by us, without releasing the customer from its (payment) obligations pursuant to the agreement.
In addition, the risk of accidental loss and accidental deterioration shall pass to the customer as soon as the shipment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch. If, through no fault on our part, delivery is rendered impossible or delayed, the risk shall pass to the customer upon notification of readiness for dispatch. This shall apply irrespective of whether the goods are dispatched from the place of performance or who is responsible for paying the shipping costs.

Section 5

Prices, Payment, Default in Payment

Unless otherwise provided in the order confirmation, all our prices are ex works. Freight, packaging, insurance and assembly will be charged separately. The packaging is charged at cost price.
The minimum order value is AWG 1,000.00.
Our prices do not include VAT. VAT shall be charged at the statutory rate applicable on the invoice date.
The invoice amount is payable net (without any right of deduction or set-off) within 30 days from the invoice date. In the event that payment is made within 14 days from the invoice date, an early payment discount of 2% can be applied by the customer when making the payment within this period. This early payment discount shall not apply to rental invoices, the calculation of lending fees and risk management packages, as well as the acquisition of rental equipment, for which the price is payable net within 14 days of the invoice date. No discounts will be granted or applied for new deliveries if old invoices have not yet been settled in full. For the first delivery, delivery can also be made subject to cash on delivery or advance payment. The payment date shall be the date upon which we are able to freely dispose over the invoice amount.
In the case of long-term contracts, we are entitled to demand the following payment modalities: 1/3 down payment upon order placement, 1/3 installment upon readiness for dispatch, 1/3 final payment upon delivery or performance, but no later than 30 days from notified readiness for supply or performance.
In the case of default of payment, the customer shall be required to pay a default interest of 6% above the applicable base rate per annum, as well as any and all judicial and/or extrajudicial costs made by us for the collection of outstanding invoices. Any and all other claims to which we are entitled remain unaffected.
The customer shall be entitled to assert rights to set-off only if its counterclaims have been legally determined by a competent court in a verdict not subject to further appeal, are uncontested or have been acknowledged by us. In addition, it is entitled to exercise a retention right only insofar as the counterclaim is based on the same contractual basis.
Should we become aware of circumstances that call into question the creditworthiness of the customer, all deferred debts shall become due immediately upon our first written request.

Section 6

Retention of Title

We shall retain ownership in the delivered products until such time as the purchase price has been paid in full and all claims to which we are entitled in the context of the business transaction have been settled in full.
The purchaser is under an obligation to treat the products subject to retention of title with due and reasonable care; it is required, in particular, at its own cost to insure these at replacement value against fire, water and theft. If maintenance and repair work and inspections are necessary, the customer must carry out such work in good time and at its own cost.
The customer is entitled to resell the products that are subject to retention of title in the ordinary course of its business. The customer shall notify us of the resale immediately, within two business days after the resale. As a precaution, the customer undertakes to assign by way of security to us the claims arising from such further sale or other legal grounds concerning the delivery item, including all ancillary claims, up to the amount of the final invoice amount agreed with us (including VAT). Upon the assignment, the customer shall be entitled to collect this claim even after the assignment. This shall not affect our entitlement to collect the claim ourselves. However, we undertake not to collect the claim provided the customer fulfills its payment obligations from the sums collected, is not in default of payment and, in particular, has not applied for the initiation of insolvency proceedings or ceased to make payments. In this case, we are entitled to demand that the customer submits the necessary documentation to collect the claim and notifies the debtor (third party) of the assignment.
The customer is not entitled to pledge the products subject to retention of title or to furnish the same as security. The customer must notify us immediately in the event of seizure or other third-party interventions. If the third party is unable to reimburse to us the court and out-of-court costs of asserting our ownership rights, the customer shall be liable for the loss incurred by us, unless the customer is not responsible for such breach of duty.
In the event of breach of contract by the customer, in particular in the event of default of payment, we shall be entitled, without prejudice to our other rights, to withdraw from the agreement following a reasonable grace period set by us. The customer must grant us immediate access to the products subject to the retention of title and surrender the same. After appropriately timely advance notice, we shall be entitled to otherwise use the products subject to retention of title to satisfy our due claims against the customer.
We undertake at the customer’s request to release the security to which we are entitled insofar as the utilizable value of our security exceeds the value of the claims to be secured by more than 10%; the selection of the securities to be released shall be at our discretion.

Section 7

Warranty Claims, Damages

The warranty claims of the customer are contingent in the case of purchases and ex works deliveries on the customer having duly fulfilled its duties to inspect the goods immediately upon receipt and to notify complaints without delay and in all events within 5 days of receipt of the goods.
Once the equipment has been installed, the customer is required to maintain and use it in accordance with the instructions for use. Consumables should be stored correctly and used only for appropriate indications.
We shall not provide compensation for natural wear and tear. Nor shall we accept any liability for damage attributable to unsuitable or improper use or excessive use, in particular failure to observe the instructions for use (IFU) enclosed with the device or stated on the device. In addition, if the customer or third parties perform improper or inadequate maintenance work or in case of alterations, we shall not be subject to warranty claims for these and any resulting damage.
If the purchase item or work is defective, we shall at our discretion render subsequent performance in the form of rectifying the defect or supplying a new, defect-free product or producing new work. In the case of remedying defects, we shall be required to bear all costs incurred in order to rectify the defect, in particular transport, journey, labor and material costs, insofar as these do not increase as a result of the products being transported to a location other than the place of performance.
If subsequent performance fails, the customer shall be entitled to choose whether to demand dissolution of the agreement or reduction in price.
Unless otherwise agreed, the statute of limitations for warranty claims under sales contracts is 2 years from the time at which risk passes and 1 year in the case of contracts for works and services (repairs) and for purchase contracts pertaining to replacement parts and consumables, calculated from the time at which risk passes.
In event of a product recall, the customer shall cooperate with all requests and instructions received from Medêri N.V.

Section 8

Liability

We shall only be liable for compensation of damages caused by intentional acts or gross negligence of Medêri N.V. All other liability is excluded. Any liability on the part of Medêri shall in all events be limited to the amount paid out in the case concerned by the insurer of Medêri under the professional liability insurance, increased by the applicable amount of the deductible (eigen risico).
The customer shall fully indemnify and hold harmless Medêri N.V., its directors, officers, employees and affiliates, from and against any and all claims of third parties (not being a counter-party of Medêri N.V.) relating to, arising out of or resulting from any product sold by Medêri N.V.

Section 9

Returns

National customers can make returns or exchanges in the absence of defects (returns) only within (6) weeks from purchase date; for international customers, exchanges or returns are possible only within three (3) months from the purchase date.
All returns must be notified to us in writing.
Goods must be in a sellable, unused condition (including original packaging). Goods are permitted to be unpacked and the function thereof tested, but not used.
A copy of the delivery note, or invoice must be enclosed with the return.
The customer/shipper must bear the cost of the return shipment.
As a rule, all sterile products, consumables and custom-made items are precluded from return. Electronic components or items (ESD) are also excluded from being returned if the original packaging has been opened.
The costs of the return shall be a flat 20 % of the net invoice value. The customer is permitted to furnish evidence that we did not incur any costs or that the costs incurred were less than this.

Section 10

Miscellaneous

The transfer of rights and duties of the customer to third parties is permissible only with our prior written consent.
Unless otherwise stated in the order confirmation, the place of performance shall be our place of business.
Should any provision of these General Terms and Conditions be or become invalid or unenforceable, in full or in part, or if these General Terms and Conditions contain a gap or omission, this shall not affect the validity of the remainder of the provisions. The valid or enforceable provision that comes closest to achieving the purpose of the invalid or unenforceable provision shall be deemed to apply in place of the invalid or unenforceable provision. In the event of a gap or omission, the provision that corresponds to what the parties would have agreed in view of the purpose of these Terms and Conditions, had they considered the matter from the outset, shall be deemed to have been agreed.

Section 11

Applicable Law, Place of Jurisdiction

The contractual relationship shall be governed by and construed in accordance with the laws of Aruba, to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11.04.1980, as well as the rules on the conflict of laws under international private law.
The place of jurisdiction for all disputes shall be Aruba.
These General Terms and Conditions have been deposited with the Court of First Instance of Aruba.

Oranjestad, Aruba, June 2019