terms and conditions - Minze Health

GENERAL TERMS AND CONDITIONS OF SALE

AREA OF APPLICABILITY
1. Unless explicitly agreed otherwise in writing, the present general terms and conditions of sale (henceforth “General Terms and Conditions”) shall apply to all present and future sales and purchase agreements (henceforth “Sales Agreement”) between NV MINZE with registered office at 2060 Antwerpen (BELGIUM), Offerandestraat 1, (henceforth ‘MINZE’) and the Buyer (as mentioned on the order form) for goods and / or services as mentioned on any order form. No provision whatsoever, in the Buyer’s documents (including its general terms and conditions) is applicable to the sales by MINZE. By entering into a Sales Agreement with MINZE, the Buyer declares to have received a copy of these General Terms and Conditions and accepts these General Terms and Conditions
ORDERS AND TERMS OF DELIVERY
1. Orders and/or terms of delivery are only valid if accepted by MINZE in writing. The presumptive delivery date will be agreed upon when the order is placed. MINZE or its representative will use reasonable endeavours, to deliver the ordered goods or services on time. The Buyer acknowledges that, unless explicitly agreed otherwise in writing, the delivery date for goods or services is indicative. Non-compliance with the indicative term shall not in any event give cause for the cancellation of the Sales Agreement or entitlement to compensation, unless explicitly agreed otherwise in writing. MINZE may deliver the goods in one or several deliveries. Each delivery shall constitute a separate contract and shall be invoiced and paid for separately.
2. In case the Buyer cancels an accepted order, the Buyer will be liable to pay liquidated damages to MINZE in accordance with clause 4.8, without prejudicing MINZE’s right to prove and claim higher damages. In case the Buyer cancels an accepted order of custom-made goods it shall nonetheless be held to pay the purchase price and all additional costs and damages in full. If MINZE’s order confirmation contains any change or addition or differs in any way from the Buyer’s order, it shall be binding upon the Buyer unless it notifies MINZE about its disagreement within 8 days after receiving the order confirmation.
3. MINZE retains the right to suspend the execution of an order if the Buyer’s account at MINZE shows that the Buyer is in default of any payment obligation to MINZE or its subsidiaries or if the Buyer demonstrates to be insolvent. In the event of a refusal to take possession of an order or if there is a delay in the delivery as a result of a suspension of an order for which the Buyer is directly or indirectly responsible, storage costs will be charged to the Buyer, without prejudicing MINZE’s right to cancel the Sales Agreement.
PRICES – TAXES
1. The price is as stated in the quotation and/or order confirmation. Price calculations or offers are indicative and non-binding until accepted. In no event shall prices confirmed by MINZE for one order be binding for subsequent orders. These prices are always subject to possible increases if this is a result of the evolution of their fixed and/or variable costs (e.g.: wages and other social security contributions, costs of material, processing costs, energy costs, ex-change rates, etc.). The prices exclude transport costs (if applicable), insurance costs, packaging costs, VAT, levies, import and export duties, etc., unless explicitly stated otherwise in writing.
2. If the delivery term, the place of delivery, or the circumstances of the delivery change at the request of the Buyer, or if the Buyer has provided incorrect information to this end, MINZE is entitled to payment of the additional costs incurred.
3. The Buyer cannot set off any of its claims against any debt towards MINZE.
PAYMENTS – CREDIT LIMITS – INTEREST – LIQUIDATED DAMAGES
1. MINZE’s invoices are payable to MINZE’s designated bank account at the latest on the due date indicated on the respective order or in the relevant invoices. The invoice has been settled when the complete amount stated on the invoice has been received on MINZE’s designated bank account as indicated on the front of the invoice. All invoices from MINZE are to be paid in the indicated currency. When the payment is done in a different currency, the conversion will be calculated with regards to the highest rate, either at the rate of the invoice date or the date of payment. All bank and exchange costs connected to the collection of the amount will be charged to the Buyer. Representatives are not authorized to receive payments.
2. Invoices that are not disputed by registered letter within eight days after their issuing will be considered to have been fully accepted.
3. If the Buyer fails to pay in full any invoice by the due date, or fails to pay in full any other payment due to MINZE under the Sales Agreement and/or these General Terms and Conditions by the due date for payment, then:

(a) the Buyer shall pay interest on the overdue amount at the rate of 10% per annum (except that if the legal rate of interest is higher, it shall be applied). Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The Buyer shall pay the interest together with the overdue amount; and

(b) the Buyer shall pay MINZE 10% of the outstanding balance, with a minimum amount of 250,00 EUR for costs associated with a.o. the collection of the amounts due and with the adverse consequence on MINZE’s cash flow, as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of MINZE’s loss. This paragraph is without prejudice to MINZE’s right to prove and claim any higher damages.

1. Late, incomplete or non-payment of one expired invoice will cause all other invoices, for which a particular instalment term has been agreed on, to become immediately payable, without previous notice of default. Interest for late payment is due as from the moment that the non-expired invoices become payable. Liquidated damages may in addition be due in accordance with clause 4.2.(b). Partial payments will firstly be deducted from interest due under clause 4.2, liquidated damages payments due under clauses 4.3.(b) and 4.8 and possible costs and only then from unpaid invoices.
2. Any use of promissory notes or cheques to cover the agreed upon price shall never be regarded as a renewal of the debt of the original invoice, nor will it limit or alter any ‘right of retention’, agreement or territorial jurisdiction
3. In the event that the Buyer has already transferred the goods he purchased from MINZE to a third party but has neglected to fulfil its obligations towards MINZE, the Buyer shall be obligated to transfer to MINZE the claim for payment he has towards his buyer. MINZE can, at its sole discretion, demand guarantees or warranties from the Buyer at any time (e.g. in the event there are indications of a negative financial position of the Buyer). These warranties or guarantees apply as a suspensory condition for the execution or further performance of the Sales Agreement.
4. MINZE is entitled to suspend or postpone its obligations in connection with other current contracts between the parties to the extent that the Buyer has not complied with a payment condition or other obligation. MINZE reserves the right to suspend delivery of any goods or services until the Buyer’s credit is back within the agreed limits or until the Buyer complies with such payment condition or other obligation. Delays in payment by the Buyer of (certain advances on) the price may give rise to a proportionate delay in the delivery term.
5. In the event of late payment, MINZE is entitled to cancel the Sales Agreement, or according to MINZE’s choice to request the enforced implementation of the Sales Agreement, all without prejudice to MINZE’s other rights and remedies under these General Terms and Conditions, at law, in equity or otherwise. MINZE shall be entitled to pick up or demand that the goods be returned at the Buyer’s expense and exercise its right to compensation including under clause 4.8.
6. Liquidated Damages. If the Sales Agreement / any accepted order is cancelled by the Buyer pursuant to clause 2.2 or by MINZE pursuant to 4.7 (or pursuant to any other breach by the Buyer), the Buyer shall pay MINZE on demand (and within fourteen days of such demand) 30% of the outstanding balance as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of MINZE’s loss. This paragraph is without prejudice to MINZE’s right to prove and claim any higher damages.
RETENTION OF TITLE
1. The delivered goods will remain property of MINZE until full payment by the Buyer of the price for these goods, as well as interests and liquidated damages, if applicable. If the Buyer has not yet (completely) paid the purchase price, the Buyer will notify third parties (for example a curator, insolvency administrator and creditors) of MINZE’s retention of title by registered letter each time this is required by the circumstances, including but not restricted to the situation wherein a third party is threatening to seize or has seized the goods. The Buyer will inform MINZE of this immediately by registered letter. The Buyer warrants (if necessary on behalf of a third party (buyer) or holder) that MINZE shall be notified of the location of the goods at its first request and that they shall be made available to MINZE again at the expense and risk of the Buyer if MINZE so requests. For as far as is necessary, MINZE shall be granted both an irrevocable mandate for repossession, and a mandate to enter the premises for this purpose.
2. The risk attached to the sold goods will pass to the Buyer at the moment of delivery EXW (EXW ICC Incoterms® 2010 ) at MINZE Warehouse in Belgium.
3. The Buyer is not entitled to dispose of the goods in the event the related purchase price has not been paid in full. In the event the Buyer sells or otherwise transfers the goods, in breach of this clause, the Buyer’s claim for payment towards its customer shall be automatically assigned to MINZE, MINZE hereby accepting such assignment. The Buyer shall inform its customers of the assignment to MINZE and shall provide to MINZE all information and documents on the collection of the claims.
4. The Buyer shall take appropriate insurance on the delivered goods with a reputed insurance company for damage, losses, depreciation, devastation and theft, and provide MINZE proof hereof at first request. The Buyer assigns his insurance claims from damage, losses, depreciation, devastation and theft from the goods to MINZE, MINZE hereby accepting such assignment.
5. As far as this clause concerning the retention of title is not in accordance with other clauses agreed upon between the parties, then this clause shall prevail.
PLACE OF DELIVERY
1. Delivery will take place at MINZE’s warehouse (Antwerp, Belgium), always ex works (ICC Incoterms® 2010), even if transport is provided by MINZE. In this event, MINZE will only act as the Buyer’s agent. All transport costs are payable by the Buyer.
2. Dispatch and transport will take place at the Buyer’s risk, irrespective of the way in which the transport is organized. The Buyer can have the goods insured at their own expense and is obliged to inspect the equipment upon receipt and to exercise their right of recourse against the conveyor within the required time limit.
QUALITY REQUIREMENTS AND REPORTING
1. When the Buyer is a MINZE distributor (henceforth the “Distributor”), the Distributor undertakes to ensure a traceability system of the goods by maintaining suitable record of the goods reference, lot or serial number, quantity and customer information.
2. The Distributor shall store, handle and transport the goods to its customers in accordance with the product specifications.
3. The Distributor must report to MINZE within 48 hours after the event, any incident communicated by its customers, end-users or service agents and/or by local authorities involving an injury or potential injury of a patient or user and related to the use of the goods. The Distributor must report to MINZE within one (1) business week from being informed, any complaint, malfunction or defect related to the goods communicated by its customers, end-users or service agents.
CONSIGNMENT STOCK
1. All products in consignment remain the property of MINZE until full payment of all invoices, including interest, indemnity and possible taxes. Consigned products have, when applicable, to be used according to the “first expiring – first out” system, in order to prevent expiry. Products returned from consignment stock must be in their original packaging. Any product returned from the Buyer which is damaged, soiled, not maintained in the required conditions as indicated by MINZE or not in useable condition shall be charged to the Buyer at the discretion of MINZE.
2. The Buyer is responsible for ensuring that all products in consignment are adequately maintained, kept in good working order, and handled only by adequately trained staff. While the products are on the Buyer’s premises, the Buyer is responsible for (i) maintaining traceability of the products; (ii) ensuring the correct storage of the products, including any storage conditions as specified in the product specifications, and for any deterioration which may take place; (iii) the use of the products, including expired products; and (iv) advising MINZE of stock use in a timely manner after consumption, and for generating a purchase order for the items consumed.
DOCUMENTATION AND PRODUCT SPECIFICATIONS
1. At written request, the Buyer will receive two copies of the documentation relating to the ordered goods. All specifications and product concepts, as well as all information received from MINZE (including, without limitation, prices, payment conditions, and terms of the Sales Agreement) are confidential and stay property of MINZE. They may only be used by the Buyer as far as necessary for the use of the goods. Reproductions or use of this information for other purposes is punished by law and will be prosecuted.
COMPLAINTS
1. The Buyer must check if the delivered quantities correspond with the ordered quantities immediately upon receipt of the dispatch. Complaints concerning quantities, (non)-conformity or condition of the delivered goods must reach MINZE within 2 days after receipt of the dispatch per registered letter and e-mail on penalty of expiry of the complaint.
2. Complaints about defects must be reported to MINZE, maximum 2 days after receipt of the goods at the very latest (in the event of visible defects) and 5 days after discovery at the very latest (in the event of hidden defects) by means of a registered letter and e-mail stating the reason and mentioning all relevant data, amongst others: order and invoice number. MINZE shall have no obligation to accept late complaints. Use or sale of the goods will nullify any liability for MINZE, except in case of hidden defects. The Buyer must initiate legal proceedings against MINZE based on the warranty for hidden defects within 2 months after discovery of the defects or after the defect should reasonably have been discovered and within one year after the delivery date at the latest (whichever is earlier) in default of which the claim will be inadmissible in pursuance of article 1648 of the Belgian Civil Code.
3. Complaints and/or disputes of whatever nature, never give the Buyer the right to suspend the fulfilment of its obligations towards MINZE or the right to cancel the complete order or delivery. Without prejudice to clause 12.1, MINZE’s maximum liability will not ever exceed the price paid for the goods in question.
11.LIABILITY – FORCE MAJEURE – PROVISION OF INFORMATION
1. Nothing in these General Terms and Conditions shall limit or exclude MINZE’s liability for any liability that may not be limited or excluded by applicable law. Subject to the above, MINZE shall have no liability to the Buyer under or in connection with the order for:
  (a) the consequences of use of, and any consequences for the user, a third party or its goods resulting from the delivered and/or transported goods, to the extent permitted by law; or

(b) any loss of profits, or any indirect or consequential loss or damage howsoever arising (including but not limited to: damage to property, financial loss, loss of profit, personnel costs, damage to third parties, loss of income).

The Buyer hereby waives its rights of recourse with regard to MINZE and/or those appointed by MINZE and releases MINZE and/or those appointed by MINZE from all such liability relating thereto.

1. All cases of Force Majeure release MINZE from its liability for anything related to the non-implementation of its obligations within the established period. In the event of Force Majeure, MINZE is entitled to suspend the Sales Agreement in as far as it has not yet been carried out either for the duration of the period of Force Majeure or to cancel it without being under an obligation to pay compensation. For the application of these General Terms and Conditions, Force Majeure is taken to mean: every occurrence which is reasonably beyond MINZE’s control, including but not limited to strikes, lock outs, delays or disruptions in transport, acts of war, riots, fire, orders, by-laws or regulations from the government or administration, inability to obtain natural gas and/or other fuels, supply difficulties, scarcity of materials or lack of products for manufacture, floods, earthquake, nuclear disaster or events, weather conditions that make the execution of the Sales Agreement temporarily difficult or impossible, breakdown in machinery, mistakes or delays payable by MINZE’s suppliers, acts by third parties, one or more manufacturing mistakes in material from one of MINZE’s suppliers, etc., irrespective of whether these problems occur at MINZE or the supplier from whom MINZE obtains goods and without MINZE being obliged to prove the influence thereof.
2. MINZE does not guarantee the quality of its goods if they are or have been subject to abnormal use, bad maintenance, improper storage.
12.INTELLECTUAL PROPERTY
1. 12.1.The Buyer is not authorized to use the trade name or any trademark or patent rights of MINZE, without written permission thereto.
13.INDIVISIBILITY – NO WAIVER
1. 13.1.The invalidity or non-applicability of one or more of these stipulations does in no way affect the validity of the other conditions. The invalidity or non-applicability of one or more of these stipulations does not in any way constitute a reason for terminating the agreement.
2. 13.2.MINZE’s failure to exercise or delay in exercising any right, power or privilege under these terms and conditions shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
14.JURISDICTION AND APPLICABLE LAW
1. 14.1.In the event of a dispute over an agreement between the Buyer and MINZE, irrespective of its nature and the place of delivery, the Courts of Antwerpen shall have exclusive jurisdiction, even if it concerns accepted bills which are payable and/or domiciled outside this judicial district. Nevertheless, if MINZE is the plaintiff, it shall be entitled – at its free choice – to summon before the court having jurisdiction over the Buyer’s place of business.
2. 14.2.All our agreements are governed by and construed in accordance with the laws of Belgium, with exclusion of (1) all conflict of laws rules, (2) the UN Convention on the International Sale of Goods (1980), and (3) the NY Convention on the Limitation Period in the International Sale of Goods (1974).
3. 14.3.Without prejudice to any other provision of these General Terms and Conditions, any claims by the Buyer arising out of or in connection with an agreement between parties or any purchase order will in any event become time-barred after expiration of one (1) year as from the date of delivery of the relevant goods.