TERMS AND CONDITIONS
TRIMEDY B.V., a private limited liability company incorporated under the laws of Belgium, registered with the Crossroad Bank for Enterprises with number 1003.419.468, whose registered office is situated at 2370 Arendonk, Varenpad 6 (hereinafter referred to as “TRIMEDY”) is specialized in the design, development, production and distribution of custom-made medical devices (hereinafter referred to as “the Products”).
The customer can be any natural person or legal entity that enters into a contractual relationship with TRIMEDY within the framework of its, his or her professional, commercial or craftsmanship related activities (hereinafter referred to as “the Customer”).
Article 1: Applicability
1.1
Safe as explicitly accepted otherwise in writing by TRIMEDY, these general terms and conditions shall apply to all offers of TRIMEDY and/ or agreements between TRIMEDY and the Customer.
1.2
If a Customer agrees to place an order with TRIMEDY, this automatically implies that the Customer acknowledges to be informed of and to have accepted these general terms and conditions.
1.3
The application of these terms and conditions excludes the application of any (general or specific) terms and conditions of the Customer.
Article 2: Order confirmation / agreement
2.1
The offers of TRIMEDY are without engagement. Orders from Customers that have not been confirmed by TRIMEDY will not be binding upon TRIMEDY.
2.2
All offers of TRIMEDY are based on information and input provided by the Customer to TRIMEDY. Any modification by the Customer can give rise to a revision of the price.
TRIMEDY can not be held liable for changes in the price if such a change is related to incorrect information provided by the Customer.
Article 3: Term, delivery and termination
3.1
The agreement will commence on the effective date as mentioned on the relevant offer and will continue until all Products have been delivered to the Customer and the Customer has paid the fees due in respect of those Products, unless a specific delivery term has been agreed upon.
3.2
Where a delivery term is indicated in the relevant offer, this is only indicative and without engagement to TRIMEDY. However, TRIMEDY will make best efforts to respect such term.
3.3
Delivery terms will automatically be extended if the delay is caused by the Customer and / or a third party.
3.4
If the parties have agreed that the transportation of the Products will be organized by TRIMEDY, and no specific instructions were given by the Customer in this respect, TRIMEDY will determine independently the method and manner of transportation, shipment, packaging and the like. The risk for loss or damages related to the transportation, shipment and packaging will however be transferred to the Customer immediately. TRIMEDY can not be held liable in this respect. The Customer can take out an insurance for these risks. If the parties have agreed upon a certain method of transportation, these arrangements will only apply to the concerning agreement and will not automatically continue to apply to any subsequent agreements with TRIMEDY.
3.5
TRIMEDY may terminate the agreement with immediate effect, without prior notice, notice period and/or court authorization, and without any compensation if (i) the Customer is in breach of the agreement and the Customer has failed to remedy the breach within 7 working days after receiving written notice; (ii) the Customer is unable to pay its debts as they fall due or a court order is made for the winding up of the Customer; (iii) an effective resolution is passed for the winding up of the Customer (other than for the purposes of amalgamation); (iv) there is a change of control in the structure and organization of the Customer; (v) the Customer refuses to make an advance payment as mentioned in article 5 below; (vi) TRIMEDY has legitimate reasons to assume that the Customer will not be able to perform its contractual duties towards TRIMEDY because, for example, its assets are worth less than its liabilities on a balance sheet basis.
In case of such termination this will be without prejudice to TRIMEDY’s other rights and remedies. TRIMEDY will be entitled to claim compensation, including costs, interests and damages and all outstanding amounts will be immediately due and payable.
Article 4: Complaints
4.1
The Customer shall promptly inspect all Products for visible defects and shortages. The Customer shall notify TRIMEDY of any visible defects within 7 working days of receipt of the Products.
4.2
Filing a complaint does not suspend the payment obligations of the Customer.
4.3
Complaints related to hidden defects in the Products must be notified in writing to TRIMEDY immediately after the discovery thereof. The complaint must be accurately explained and detailed. Any complaint filed after the expiry date of the concerning Product will be disregarded, unless for the purpose of quality improvement.
4.4
If the Products of TRIMEDY would in fact be defective, the Customer will be entitled to have the concerning Products replaced, without any form of compensation of additional damages.
4.5
The unconditional acceptance of the Products by the Customer will result from:
- the complete payment of the invoice; and/ or
- the reception of the invoice without objection; and/ or
- the use or resale of the Products.
Article 5: Prices
5.1
Unless parties have agreed otherwise, Products will be provided by TRIMEDY at a flat-rate price agreed upon by the parties in the relevant agreement or invoiced in accordance with the rates or prices as applicable on that day.
Upon written request of the Customer, he will be provided with the then current price list by TRIMEDY.
5.2
The VAT, any other taxes and possible costs related to the Products, provided by TRIMEDY, including all taxes and possible costs that have been implemented since the effective date of the agreement, are charged to the Customer.
5.3
TRIMEDY will be entitled to adapt and increase the prices that are agreed upon after the effective date of the agreement, if one or more factors that affect the cost price (such as but not limited to the prices of raw materials, power costs and wage and salary costs) have increased, even if this was caused by foreseeable circumstances.
Article 6: Payment
6.1
Unless agreed otherwise in writing, the invoices of TRIMEDY will be payable within 30 days from the invoice issue date. The invoices will be paid in EUR by means of a bank transfer on the account number mentioned on the invoice.
6.2
TRIMEDY is entitled to request for an advance payment and/ or the complete prepayment of an invoice. As long as TRIMEDY has not received the required amount, TRIMEDY will be entitled to suspend the execution of the agreement.
The first order of a new Customer, regardless of its size, and every order below 250 EUR, excluding taxes, will be paid in cash and/ or upfront.
6.3
Complaints related to the invoices of TRIMEDY are only admissible in case of a detailed notification to TRIMEDY in writing within 7 working days from the invoice issue date (without this being considered as the acceptance of its content by TRIMEDY). Without such notification, the invoice is deemed to be accepted by the Customer without reservation.
6.4
In case of non-payment of an invoice on the expiry date, all other amounts due by the Customer will become immediately payable without prior written notice. In such case, TRIMEDY will be entitled to suspend the execution of all pending deliveries, without any compensation or prior written notice to the Customer.
6.5
In case of non-payment of an invoice on the expiry date, an interest of 1% per month and a lump sum of 10% on the invoiced amount, excluding taxes, and with a minimum of 150 EUR will be due, automatically and without prior written notice, without prejudice to the right of TRIMEDY to claim the actual damages that were suffered because of the late/ non-payment by the Customer.
Article 7: Retention of title
7.1
Title to the Products shall remain vested in TRIMEDY and shall not pass to the Customer until the purchase price for the Products has been paid in full and received by TRIMEDY. Irrespective of whether title to the Products remains vested in TRIMEDY, the risk of damage to or loss of the Products shall pass to the Customer upon delivery.
7.2
Until the moment that title to the Products will be vested in the Customer, the Customer will (i) not be allowed to sell or otherwise deal with and/or dispose of all or any part of the Products and (ii) mark the goods as the TRIMEDY’s property and (iii) store the Products separately from goods belonging to the Customer or to third parties.
7.3
The Customer agrees to inform TRIMEDY immediately in writing when the Products are seized by a third party.
Article 8: Limited liability
8.1
Except in case of willful intent or gross negligence, TRIMEDY will not be liable for immaterial, indirect or consequential damages, including but not limited to loss of profit or turnover, business interruption, loss of income, loss of customers, or any other form of damages.
8.2
The total (contractual and non-contractual) liability of TRIMEDY will in any case be limited to the amounts that were paid by the Customer for the Products under the related offer.
8.3
The Customer confirms that the information and products it provides to TRIMEDY are not defective and do not infringe on third party rights. The Customer will safeguard and hold TRIMEDY harmless from any claims in this respect.
Article 9: Severability
9.1
If any court or competent authority decides that any of the provisions (of part thereof) of these terms and conditions are invalid, unlawful or unenforceable to any extent, that provision will, to that extent only, be severed from the remaining provisions of these terms and conditions, which will continue to be valid to the fullest extent permitted by law. In such case, the parties agree to negotiate in good faith in order to replace the concerning provision with a valid and lawful alternative in accordance with the original provision.
Article 10: Confidentiality
10.1
All information that has been shared between TRIMEDY and the Customer in the framework of the agreement, will be considered as confidential information, and both parties will hold such information strictly confidential, unless (i) the information has already been made public by one of the parties prior to the effective date of the agreement or (ii) the concerning information should be considered as being part of the public domain.
10.2
The parties agree to hold all confidential information confidential during the term of the agreement and for a period of 1 year after the end of the agreement, and will refrain from using, multiplying, making the information public or allowing that it is used for other purposes than the ones it was originally shared for.
Article 11: Absence of exclusivity
11.1
Neither of the parties will be bound by any exclusivity obligation towards the other party.
Article 12: Force Majeure
12.1
Neither party shall be liable for any delay or failure to perform hereunder if such delay or failure is due to a force majeure event. A force majeure event is any cause beyond the reasonable control of such party that prevents that party from performing under the agreement, temporarily or permanently, even if the cause was foreseeable. Without being exhaustive, a force majeure event includes: stock shortages, third party delays, defective machines, strike, lockout, fire, uprising, war, epidemic, flood, electrical, IT, internet or telecommunications failures and government related decisions.
12.2
The party that invokes a force majeure event is not obligated to prove the unforeseeable nature thereof.
12.3
In case of a force majeure event, the performance of services hereunder of the concerning party is suspended. Both parties will use best efforts to limit the consequences of the force majeure event. In the event either party is unable to resume performance of the applicable services within 2 months of providing notice of a force majeure event, the other Party may terminate the agreement immediately, without compensation to the other party.
Article 13: Applicable law and jurisdiction
13.1
These general terms and conditions are governed by Belgian law. All disputes arising out of or in connection with these general terms and conditions are submitted to the exclusive jurisdiction of the courts of Turnhout, unless Belgian (mandatory) law prescribes that such dispute should be handled by a different court.