General Terms and Conditions – Borealis Pharma Manufacturing B.V. Longevir
Table of contents:
Article 1: Definitions
Article 2: Identity of the entrepreneur
Article 3: Applicability
Article 4: Conclusion of agreements
Article 5: Proposals, offers, prices
Article 6: Delivery period
Article 7: Delivery and risk
Article 8: Supply of data
Article 9: Obligations of the other party
Article 10: Complaints and returns
Article 11: Warranties
Article 12: Liability
Article 13: Payment
Article 14: Reservation of title
Article 15: Breach of contact & rescission
Article 16: Force majeure
Article 17: Replacement clause
Article 18: Cancellation
Article 19: Battle of forms
Article 20: Applicable law / competent court
Article 1 – Definitions
For the purpose of these terms and conditions the following is understood as:
- Additional agreement: an agreement in pursuance of which the other party acquires products in connection with a distance agreement and the said products are delivered by the entrepreneur or by a third party on the basis of an arrangement between the said third party and the entrepreneur;
- Day: a calendar day;
- Continuing performance agreement: an agreement that extends to the regular delivery of goods and/or services during a specific period;
- Sustainable data carrier: each and every tool – also including email – that enables the other party or the entrepreneur to store information that is addressed to the same in a manner that enables future consultation or use during a period that is in line with the objective for which the information is meant, and that enables unchanged reproduction of the stored information;
- Entrepreneur: the natural or legal person who remotely offers products and/or services to the other party;
- Distance agreement: an agreement that is concluded by and between the entrepreneur and the other party within the framework of an organised system for distance sales of products in the course of which, up to and including the conclusion of the agreement, use is exclusively or also made of one or more techniques for distance communication;
- In writing / written: by letter, email, facsimile or any other manner of communication that is, in view of the state of the art and the generally accepted practices, put on par with the same;
- Technique for distance communication: means that can be used for the conclusion of an agreement without the other party and the entrepreneur simultaneously having to meet in the same room;
- Other party: the client or (internet) buyer who can exclusively be a legal person or a natural person who acts in the course of a profession or business.
Article 2 – Identity of the entrepreneur
Borealis Pharma Manufacturing B.V.
Also trading under the trade name “Longevir”
Having its registered office in Amsterdam
Having its place of business at the Rijksstraatweg 109, 3632AB Loenen aan de Vecht
Email address: firstname.lastname@example.org
CoC number: 81737491
Article 3 – Applicability
- These terms and conditions are applicable to each and every offer of the entrepreneur and each and every distance agreement concluded by and between the entrepreneur and the other party.
- Before the distance agreement is concluded, the text of these general terms and conditions is made available to the other party. If this is reasonably not possible then the entrepreneur shall, before the distance agreement is concluded, indicate how the general terms and conditions can be inspected at the entrepreneur and that they shall on request of the other party forthwith be sent at no cost.
- If the distance agreement is concluded electronically then, in derogation from the previous paragraph and before the distance agreement is concluded, the text of these general terms and conditions can be made available to the other party electronically in such manner that it can easily be stored on a sustainable data carrier by the other party. If this is reasonably not possible then it shall, before the distance agreement is concluded, be indicated where note can be taken of the general terms and conditions electronically and that they shall on request of the other party forthwith be sent electronically or otherwise at no cost.
- If, apart from these general terms and conditions, specific product terms and conditions are also applicable then the second and third paragraph are equally applicable and the other party can, in case of conflicting terms and conditions, always rely on the applicable provision that is most favourable to the same.
- There is a Dutch and an English version of these general terms and conditions. In case of a discrepancy between both versions, the Dutch version shall prevail.
- It is assumed that the other party has knowledge of the legislation and regulations of the country, region or union, where it sells its products and what is applicable to the purchased products. The entrepreneur cannot be held liable for this.
Article 4 – Conclusion of agreements
- The agreement is concluded after the other party has accepted the offer of the entrepreneur, also if the said acceptance deviates from the said offer on subordinate points. However, if the acceptance of the other party deviates on essential points then the agreement is only concluded if the entrepreneur has agreed with the said deviations in writing.
- The entrepreneur shall only be bound by:
a. an order without a prior offer;
b. oral arrangements;
c. additions to or changes of the general terms and conditions or agreement;
after written confirmation of the same to the other party or as soon as the entrepreneur started – without objection of the other party – the implementation of the order or arrangements.
- If the other party places an order via the website then the entrepreneur shall only be bound by the said order after it has confirmed it to the other party in writing. The latter all applies, unless indicated otherwise on the website.
- Each and every agreement concluded with the entrepreneur contains the resolutive or suspensive condition – the latter at the discretion of the entrepreneur – that the entrepreneur shall be sufficiently satisfied with the creditworthiness of the other party, such at the sole discretion of the entrepreneur; the entrepreneur shall on the said ground be entitled to refuse an order of a buyer.
- The entrepreneur is entitled to require of the buyer that the latter provides security for compliance with its obligations, such in particular also after conclusion of the agreement. If the security required by the entrepreneur is not provided then the entrepreneur can suspend the performance of its obligations and/or rescind the agreement without judicial intervention, without prejudice to potential other rights that on the part of the entrepreneur derive from the provisions of common law.
- Arrangements and/or commitments agreed with and/or entered into by employees of or on behalf of the entrepreneur shall only have binding effect on the entrepreneur if the said arrangements and/or commitments were expressly confirmed in writing by directors of the entrepreneur with representative authority.
- The entrepreneur reserves the right to refuse orders without stating reasons. This kind of refusal shall never entitle to any compensation.
- Barring the express written consent of the entrepreneur, the buyer is not allowed to transfer the rights or obligations on account of agreements concluded with the entrepreneur to third parties, including companies affiliated with the buyer.
- If contracting takes place with two or more buyers then they are all jointly and severally liable for compliance in full with the agreement concluded by them.
Article 5 – Proposals, offers, prices
- Each and every proposal and each and every offer of the entrepreneur is applicable during the period specified in the same. A proposal or offer that does not contain a validity period is subject to contract. In case of a proposal or offer subject to contract, the entrepreneur is entitled to revoke the said proposal or offer at the latest within 2 working days after receipt of the acceptance.
- The prices specified in a proposal, offer or price list are exclusive of VAT and potential costs, e.g. transport costs, shipping costs, administration charges, handling costs and invoices of third parties hired.
- A combined proposal or offer does not compel the entrepreneur to deliver a part of the offered performance at a corresponding part of the price.
- If the proposal or the offer is based on information supplied by the other party and the said information appears to be incorrect or incomplete or changes afterwards then the entrepreneur is entitled to adjust the specified prices and/or delivery periods.
- The proposal, the offer and the prices are not automatically applicable to repeat orders or partial orders.
- Demonstrated and/or supplied samples, models, dimensions, weights and other descriptions in brochures, promotional material and/or on the website of the entrepreneur are as accurate as possible, but they are approximate only. The other party cannot derive any rights from this.
- If (cost) price increasing circumstances for the entrepreneur occur between the date of the conclusion of the agreement and its implementation as a result of changes in legislation and regulations, official measures, exchange rate fluctuations or changes in prices of the required materials and/or raw materials then the entrepreneur shall be entitled to increase the stipulated prices accordingly and to charge the same to the other party.
Article 6 – Delivery period
- A delivery period specified by the entrepreneur is based on the circumstances at the time of ordering and regards an approximate, expected time. The order is delivered at the indicated address of the other party, unless stipulated otherwise. In case of an overstepping of the delivery period by the entrepreneur or in case products are not in stock, the other party shall not be entitled to compensation.
- If the other party is not present on the stipulated day and/or at the stipulated time to take delivery of the goods then the entrepreneur can charge the costs for the redelivery and potential storage expenses to the other party.
- The entrepreneur is entitled to deliver in instalments in the course of which each and every instalment can be invoiced separately by the entrepreneur.
Article 7 – Delivery and risk
- The risk in respect of the delivered goods transfers to the other party at the time of delivery. For the purpose of these general terms and conditions the moment of delivery is understood as: the moment that the goods to be delivered leave the building, the warehouse or the shop of the entrepreneur or the moment that the other party is informed that the said goods can be picked up by the same.
- Shipment or transport of the ordered goods takes place in the manner to be determined by the entrepreneur, however at the risk and expense of the other party. The entrepreneur shall not be liable for any damages, of any nature whatsoever – whether or not to the goods – that are related to the shipment or the transport.
- If the entrepreneur personally delivers the goods to the other party then the risk in respect of the goods transfers at the moment that the said goods arrive at the location of the other party and are actually available to the same.
Article 8 – Supply of data
The other party must see to it that:
- It makes all information required for the implementation of the agreement available to the entrepreneur in a timely fashion and in the manner required by the entrepreneur.
- The other party sees to it that the supplied information is correct and complete and indemnifies the entrepreneur against claims of third parties that derive from the said information being incorrect and/or incomplete.
- Changes in these data must forthwith be communicated to the entrepreneur by the other party by email.
Article 9 – Obligations of the other party
- Any and all goods delivered by the entrepreneur can exclusively be resold by the other party in the original packaging originating from the entrepreneur. The other party cannot make changes to the original packaging and must prevent damages.
- The other party is expressly not allowed to offer the goods for sale via ‘Marktplaats’ or another internet forum, barring with prior written consent of the entrepreneur.
- The other party can only place or demonstrate goods from the entrepreneur in the displays that were purchased from the entrepreneur.
- The other party can only use the displays for the purpose for which they are meant and is held to keep the displays in a good and presentable state.
- In case of a violation of the provisions of the previous paragraphs the other party forfeits an immediately claimable penalty in full of € 500.00 per violation to the entrepreneur. All without prejudice to the right of the entrepreneur to claim full compensation.
- If the other party does not comply with its obligations included in these terms and conditions then the entrepreneur shall be entitled to suspend the implementation of the agreement up to the moment that the other party has complied with its obligations. The costs in connection with the incurred delay or lost working hours, the costs for the performance of additional activities and the other consequences that may derive from it are at the risk and expense of the other party.
- If the other party does not comply with its obligations and the entrepreneur fails to require compliance from the other party then this shall not affect the right of the entrepreneur to yet claim compliance at a later time.
Article 10 – Complaints and returns
- Immediately after delivery the other party must inspect the delivered goods and record potential visible shortcomings, defects, damages and/or differences in numbers or quantities on the consignment note or accompanying note. If a consignment note or accompanying note is absent then the other party must report the shortcomings, defects, and the like to the entrepreneur in writing within 8 days after receipt of the goods. Failing this kind of notification the goods are deemed to have been received in a good state and to comply with the agreement.
- Other complaints with regard to the goods must be reported to the entrepreneur in writing immediately after discovery – however at the latest within the applicable shelf life or warranty period but at the latest within 2 months after delivery. Any and all consequences of not reporting this immediately shall be at the risk and expense of the other party.
- If a complaint is not reported to the entrepreneur within the time limits as intended in the previous paragraphs then a stipulated warranty can no longer be relied on.
- Complaints and grievances shall not entitle the other party to suspend payment of the relevant invoice, whilst compensation is expressly excluded by the entrepreneur. The time limit for complaints in respect of the invoices sent by the entrepreneur amounts to a maximum of 5 days after the day of receipt. If objections were not made to the invoice within the said time limit then it is deemed to represent the underlying transaction(s) with the entrepreneur correctly and to have been approved by the buyer.
- The other party must enable the entrepreneur to examine the complaint and to provide the entrepreneur with any and all information that is relevant to this. If a return is required for the examination of the complaint then this shall take place at the expense of the other party, unless afterwards the complaint appears to be well-founded. The transport risk is always borne by the other party.
- In all instances a return shall take place in a manner to be determined by the entrepreneur and in the original unopened packaging, including thereto-pertaining accessories and documentation.
- Only in case of a complaint about the characteristics of the delivered good can a return of goods in opened packaging be accepted.
Article 11 – Warranties
- The entrepreneur ensures that the stipulated deliveries are carried out properly and in conformity with the standards applicable in its industry but never provides any further warranty with regard to the said deliveries than expressly stipulated by and between the parties.
- During the warranty period the entrepreneur warrants the common normal quality and soundness of the delivered goods.
- It is not possible to rely on the warranty as long as the other party has not paid the stipulated price for the goods.
- In case of rightful reliance on the warranty the entrepreneur shall – at its discretion – provide for replacement of the goods at no cost or for repayment of or a discount on the stipulated price. If there is question of additional damages then the provisions laid down in the liability article included in these general terms and conditions shall apply.
Article 12 – Liability
- Apart from the (shelf life) warranties expressly stipulated or given by the entrepreneur, the entrepreneur does not accept any liability whatsoever.
- Without prejudice to the provisions set forth in the previous paragraph, the entrepreneur shall only be liable for direct damages. Each and every liability of the entrepreneur for consequential damages, e.g. trading losses, lost profit and/or incurred losses, losses due to delays and/or personal injuries or bodily injuries, is expressly excluded.
- The other party must take all measures that are required to prevent or limit the damages.
- If the entrepreneur is liable for damages incurred by the other party then the obligation of the entrepreneur to pay compensation shall always be limited to at most the amount that is, as the occasion arises, paid out by its insurance company. If the insurance company does not pay out or if the damages are not covered by insurance taken out by the entrepreneur then the obligation of the entrepreneur to pay compensation shall be limited to at most the invoice amount for the delivered goods.
- The other party must address the entrepreneur for the damages incurred by the same at the latest within 6 months after the other party has or could have become familiar with the same.
- The entrepreneur shall not be liable and the other party cannot rely on the applicable warranty if the damages are the result of:
a. injudicious use or use in breach of the designated use of the delivered goods or the instructions, recommendations, user instructions, leaflets, and the like supplied by or on behalf of the entrepreneur;
b. injudicious or incorrect keeping (storage) of the delivered goods;
c. errors or inaccuracies in the information supplied to the entrepreneur by or on behalf of the other party;
d. directions or instructions of or on behalf of the other party;
e. the choice that the other party made in respect of the goods to be delivered;
f. processing of the delivered goods by or on behalf of the other party or mixing of the said goods with further products, without express prior consent of the entrepreneur.
- The other party shall in the instances outlined in the previous paragraph be liable in full for any and all damages deriving from the same and expressly indemnifies the entrepreneur against any and all claims of third parties for compensation for the said damages.
- The limitations of liability included in this article are not applicable if the damages can be blamed on intent and/or intentional recklessness of the entrepreneur or the managerial staff at executive level or if mandatory statutory provisions oppose this. Only in those instances shall the entrepreneur indemnify the other party against claims of third parties vis-à-vis the other party.
Article 13 – Payment
- The entrepreneur is always entitled to require (partial) advance payment or any other security for payment from the other party.
- Payments for orders via the website must take place in the manner indicated on the website. Other payments must take place in the stipulated manner. Payment in different manners is only permitted if the parties expressly stipulated this in writing.
- If parties stipulated payment after receipt of an invoice then payment must take place within a due date of 8 days after the date of the invoice, unless the parties agreed on a different payment term in writing. In this respect the correctness of an invoice is an established fact if the other party did not object within the said payment term.
- If an invoice has not been paid in full or if a direct debit was unsuccessful after the expiry of the time limit as intended in the previous paragraph then the other party shall be liable to pay the entrepreneur default interest at a rate of 2% per month, to be calculated cumulatively on the principal sum. Parts of a month are in this respect calculated as a full month.
- If after a demand by the entrepreneur payment yet fails to materialise then the entrepreneur shall moreover be entitled to charge extra-judicial collection costs to the other party at a rate of 15% of the invoice amount, with a minimum of € 40.00.
- If payment in full by the other party fails to materialise then the entrepreneur shall be entitled to rescind the agreement, without any further notice of default by means of a written notice, or to suspend its obligations pursuant to the agreement, until the other party yet paid or provided sufficient security for it. The entrepreneur is also entitled to the aforementioned right of suspension if it already has well-founded reasons before the other party is in payment default to doubt the creditworthiness of the other party.
- Payments made by the other party are first applied to any and all payable interest and costs by the entrepreneur and then to the claimable invoices that have been outstanding the longest, unless the other party expressly indicates with the payment that it is related to a later invoice.
- The other party cannot settle the claims of the entrepreneur with potential counter-claims that the other party has vis-à-vis the entrepreneur. This also applies if the other party applies for (provisional) suspension of payment or is declared insolvent.
Article 14 – Reservation of title
- The products delivered by the entrepreneur remain the property of the entrepreneur up to the moment of payment in full of the payable purchase price, including potential interest and costs. The products delivered to the buyer by the entrepreneur are delivered subject to the suspensive condition of payment in full of the purchase price, interest and costs by the buyer. After payment in full the title of the delivered goods transfers to the buyer; in this respect payments are always deemed to be related to the claimable invoice that has been outstanding the longest.
- The payment obligations as intended in this article consist of the payment of the purchase price of the goods plus claims on account of activities performed that are related to the delivery and claims on account of the imputable failure of the other party to comply with its obligations, e.g. claims for compensation, extra-judicial collection costs, interest and potential penalties.
- If it regards the delivery of identical, unidentifiable goods then every time the shipment of goods pertaining to the oldest invoice is deemed to have been sold first. Hence, the reservation of title is always applicable to any and all delivered goods that at the time of reliance on the reservation of title are still in stock, in the shop and/or part of the inventory of the other party.
- The buyer is not entitled to pledge the goods that have not been paid yet or to establish (have established) a non-possessory pledge on the same or to establish (have established) another real right on the same for the benefit of a third party.
- The other party must forthwith inform the entrepreneur in writing if third parties allege to have any ownership or other rights in respect of the goods that are subject to reservation of title.
- As long as the reservation of title remains in place the other party must keep the goods in a diligent manner and as identifiable property of the entrepreneur.
- The other party must provide for such business or contents insurance that the goods that were delivered subject to reservation of title are always included in the insurance and on demand provide the entrepreneur insight into the insurance policy and the thereto-pertaining proof of premium payments.
- If the other party acts in violation of the provisions of this article or if the entrepreneur relies on the reservation of title then the entrepreneur and its employees are irrevocably authorised to enter the premises of the other party and to take back the goods delivered subject to reservation of title. This applies without prejudice to the right of the entrepreneur to claim compensation for damages, lost profit and interest and the right to rescind the agreement without any further notice of default by means of a written notice.
Article 15 – Breach of contact & rescission
- Without prejudice to the provisions set forth in the Dutch Civil Code, in case of a breach of contract of the buyer the entrepreneur is also entitled to suspend the concluded agreement or to rescind it either in whole or in part, such at the discretion of the entrepreneur. As the occasion arises, the entrepreneur shall be entitled to compensation for any and all damages incurred by the entrepreneur.
- The entrepreneur is always entitled to rescind the agreement without any further notice of default by means of a written notice at the moment that the other party:
a. is declared insolvent or a winding-up petition was filed in respect of the same;
b. applies for (provisional) suspension of payment;
c. Is affected by an executory attachment;
d. is placed under curatorship or adminstration;
e. otherwise loses the power of disposition or legal capacity with regard to its assets or loses parts thereof.
- The other party must always inform the curator or administrator of the (content of the) agreement and these general terms and conditions.
Article 16 – Force majeure
- In case of force majeure on the part of the other party or the entrepreneur, the entrepreneur shall be entitled to rescind the agreement by means of a written notice to the other party or to suspend compliance with its obligations vis-à-vis the other party for a reasonable period of time, without being liable to pay any compensation.
- For the purpose of these general terms and conditions force majeure on the part of the entrepreneur is understood as: a non-imputable shortcoming of the entrepreneur, of the third parties or suppliers hired by the same or other compelling reasons on the part of the entrepreneur.
- Circumstances where there shall be question of force majeure on the part of the entrepreneur are undestood to include, but are not limited to: war, riots, mobilisation, domestic and foreign civil commotion, official measures, industrial action within the organisation of the entrepreneur and/or of the other party or threat of these and similar circumstances, disruption of the exchange rates as applicable at the time of the conclusion of the agreement, business interruptions due to fire, break-in, sabotage, power failure, breakdown of internet or telephone connections, natural phenomena, (natural) disasters and the like, as well as weather conditions, road blockages, accidents, import and export restricting measures and the like, occuring transport difficulties and delivery issues.
- If the situation of force majeure occurs when the agreement has already partly been implemented then the other party must in any case comply with its obligations vis-à-vis the entrepreneur up to that moment.
- If the entrepreneur cannot comply with the agreement in a timely fashion due to force majeure then the entrepreneur shall be entitled to implement the agreement at a later time or to consider the agreement as rescinded, the latter at the discretion of the entrepreneur. In these and similar instances the entrepreneur is entitled, entirely at the discretion of the entrepreneur, to rescind the agreement after a reasonable period of time without being liable to pay any compensation or to claim that the agreement is adjusted to the circumstances.
Article 17 – Replacement clause
- If a provision of these terms and conditions is fully or partly qualified as unreasonably burdensome by the court then it is deemed to have been replaced by a provision that, whilst preserving the content and scope as much as possible, is not qualified as unreasonably burdensome.
- If a provision of these terms and conditions is qualified as unreasonably burdensome by the court and paragraph 1 of this article cannot be applied then this shall not affect the validity of the remaining provisions of these general terms and conditions.
Article 18 – Cancellation
- If the other party wants to cancel the agreement prior to or during the implementation thereof then the other party shall be liable to pay the entrepreneur compensation further to be determined by the entrepreneur. The said compensation includes any and all costs incurred by the entrepreneur and the damages, including the lost profit, incurred due to the cancellation. The entrepreneur is entitled to fix the compensation and to – at its discretion and depending on the deliveries already performed – charge 20% to 100% of the stipulated price to the other party.
- The other party shall be liable vis-à-vis third parties for the consequences of the cancellation and indemnifies the entrepreneur against claims of the said third parties deriving from the same.
- The entrepreneur is entitled to settle any and all amounts paid by the other party with the compensation payable by the other party.
- In case of suspension of the implementation of the agreement at the request of the other party, any and all costs incurred up to the said moment immediately fall due and the entrepreneur can charge these to the other party. The entrepreneur can moreover charge any and all costs incurred or to be incurred during the period of suspension to the other party.
- If the implementation of the agreement cannot be resumed after the stipulated duration of suspension then the entrepreneur shall be entitled to rescind the agreement by means of a written notice to the other party. If the implementation of the agreement is resumed after the stipulated duration of suspension then the other party must compensate the entrepreneur for the costs that may derive from the said resumption.
Article 19 – Battle of forms
The agreement that is concluded by and between the entrepreneur and the other party is expressly governed by the general terms and conditions of the entrepreneur, with the exclusion of any and all other terms and conditions, including those of the other party. Hence, only the general terms and conditions of the entrepreneur are valid and, where required, the entrepreneur therefore expressly rejects any general terms and conditions of the other party.
Article 20 – Applicable law / competent court
- Dutch law is exclusively applicable to the agreement concluded by and between the entrepreneur and the other party.
- The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
- Potential disputes shall be brought to the cognisance of the competent court in the place where the entrepreneur holds its registered office, albeit that the entrepreneur is always entitled to bring a dispute to the cognisance of the competent court in the place where the other party holds its registered office.
- If the other party is established outside the Netherlands then the entrepreneur shall be entitled to bring the dispute to the cognisance of the competent court in the country or in the state where the other party holds its registered office.