DISCLAIMER: This document is translated from Dutch to English using Google Translate. This document has no legal value and its only purpose is to make it easier for you to understand the original text. The original document can be found at: https://ecatalog.megagen.nl/voorwaarden/
1.1 MegaGen Benelux B.V. (hereinafter: ‘‘MegaGen’’) is registered in the trade register under no. 52885550 and has its registered office at Schijfstraat 24, [5061KB] Oisterwijk, the Netherlands. These general conditions of sale and delivery (hereinafter: ‘‘General Conditions of Sale’’) are also stipulated for the benefit of MegaGen’s affiliated legal entities, the (indirect) directors and shareholders of MegaGen and their affiliated legal entities as well as for the benefit of all persons working for MegaGen and its affiliated legal entities, including third parties. They may invoke these terms and conditions as if they were MegaGen.
1.2 These General Conditions of Sale apply to every legal relationship between MegaGen and a customer or potential customer (hereinafter referred to as ‘‘Buyer’’). For the Buyer an object may have to be created by MegaGen and/or that object or a service may have to be delivered by MegaGen to that Buyer (hereinafter: ‘‘Product’’ or ‘‘Products’’). These General Conditions of Sale also apply to offers preceding the foregoing and to further agreements and other acts in connection with the foregoing, such as e.g. torts, undue payments, and unjust enrichments.
2.1 An offer from MegaGen is valid for 14 days. Quotations can be revoked at any time. Subordinate deviations mentioned by you upon acceptance do not form part of the agreement unless confirmed by us. An Agreement is concluded between MegaGen and Buyer as soon as MegaGen has confirmed this to Buyer in writing or if MegaGen has commenced performance thereof.
2.2 An agreement shall come into existence between MegaGen and Buyer as soon as MegaGen has confirmed the order to Buyer in writing (hereinafter: ‘‘Order Confirmation’’), or if MegaGen has commenced performance of the order.
3.1 Unless otherwise agreed in writing, the price of the Products as stated on the Order Confirmation, or in the absence thereof, the price last published in the price list at the time of commencement of performance, shall be in Euros exclusive of VAT and other governmental levies. 3.2 MegaGen shall be entitled - where necessary setting aside the law - to pass on to the Buyer any increase in cost-determining factors, including the purchase price, which occurs after the conclusion of the Agreement, if:
3.3 If the price increase exceeds 5%, the Buyer is entitled to terminate the agreement, provided that the Buyer pays the price applicable to the agreement, less MegaGen’s savings from the termination, against delivery by MegaGen ‘as is’ of what is completed or (already) available.
3.4 If the price was dependent on costs to be incurred by MegaGen, the price payable by the Buyer shall be calculated on the basis of the costs incurred, the labor performed and the profit MegaGen would have made by the contract.
3.5 Increases in taxes, other governmental levies and exchange rates may always be passed on by MegaGen without Buyer being entitled to terminate.
4.1 Buyer shall timely provide to MegaGen, in advance and during the performance of the Agreement, all information and cooperation which MegaGen indicates is necessary and/or which Buyer should reasonably understand is necessary for the performance of the Agreement. If the information/co-operation is provided late, the delivery time shall be extended by the same period as the delay and MegaGen shall be entitled to suspend performance and/or to recover the costs in respect of the delay from the Buyer.
4.2 MegaGen shall not be in default if MegaGen has relied on incorrect and/or incomplete data provided by the Buyer, unless such incorrectness or incompleteness was known to MegaGen.
4.3 The lists, technical specifications, measurements and the like used by MegaGen have been prepared by MegaGen to the best of its ability, but are only approximations and estimates. Deviations, regardless of cause, shall not constitute a default by MegaGen.
4.4 MegaGen is entitled to deliver Products which deviate from what has been agreed upon if it concerns changes - in the Products to be delivered, the packaging or accompanying documentation - which are required to comply with applicable legal regulations, license conditions or if it concerns minor changes to the Product which constitute an improvement.
4.5 Any description, clarification, drawing and more generally all features indicated in catalogs, brochures, price lists, information leaflets, manuals and any other publications of MegaGen are purely indicative: the Product may deviate therefrom unless expressly agreed otherwise.
4.6 If MegaGen makes a customized Product for the Buyer then the Buyer will supply photographs to MegaGen for this purpose. Based thereon MegaGen will make a design. The Buyer must then check and approve the design for accuracy, after which MegaGen will proceed to production. If the Product does not fit, but is in accordance with the approved design, there is no question of a shortcoming by MegaGen. MegaGen is then not liable.
4.7 If the Agreement is performed in stages, MegaGen may suspend the performance of a subsequent stage until Buyer has approved and/or paid in writing for the results of the preceding stage.
4.8 All orders of Buyer are exclusively accepted and executed by MegaGen. Art. 7:404 and 7:407 paragraph 2 of the Civil Code are not applicable.
4.9 The Buyer is familiar with, and guarantees to comply with, all obligations to which it is subject under the Medical Device Regulation (EU) 2017/745 (hereinafter ‘‘MDR’’).
5.1 Delivery of purchased Products takes place by making them available at MegaGen’s warehouse (“Ex Works”), in accordance with Incoterm DAP 2020 in appropriate packaging. Transportation of purchased items to the Buyer takes place at the Buyer’s expense and risk. Buyer may insure itself against these risks.
5.2 The Buyer is obliged to take delivery of the purchased goods at the time they are offered to him. If the Buyer refuses delivery or is negligent in providing information or instructions necessary for delivery, the Product will be transported and stored, at MegaGen or a third party, at the expense and risk of the Buyer.
5.3 Delivery Times are always approximate by MegaGen, unless expressly agreed otherwise. Delivery Times shall only commence when all commercial and technical details have been agreed upon, all information, including final and approved drawings and specifications, are in MegaGen’s possession, the agreed (instalment) payment has been received and the other conditions for performance and/or Delivery have been fulfilled. In the event of delayed Delivery, the Buyer must always give MegaGen written notice of default and a reasonable cure period before default occurs. If the Product is partially produced or purchased for/by MegaGen outside the EU or must be partially delivered outside the EU for the benefit of the Buyer, the reasonable time for repair shall be at least six weeks and in all other cases at least three weeks. MegaGen shall be obliged to compensate Buyer for the damage suffered by Buyer from the moment MegaGen is in default with respect to timely Delivery. In the event of delayed Delivery any right of Buyer to any compensation shall be limited to a maximum of 1% of MegaGen’s invoice amount, unless the delayed Product was an individually invoiced Product or an individualizable part thereof, in which case compensation shall be limited to 1% of the invoice amount thereof. This right to compensation lapses within one year after MegaGen is in default.
5.4 MegaGen may deliver Products sold in installments. This does not apply if a partial delivery has no independent value. If Products are delivered in parts, MegaGen is entitled to invoice each part separately.
6.1 Invoices from MegaGen must be paid by Buyer within 30 days of the invoice date by bank transfer in Euro.
6.2 Payments made by Buyer will - even if Buyer specifies otherwise at the time of payment - always first apply to all interest and costs due, then to due invoices in respect of which the retention of title has already expired, and finally to those invoices which have been outstanding the longest.
6.3 If the Buyer is in default with respect to any payment obligation owed to MegaGen, the Buyer shall owe interest on the due and payable amount at the legal commercial interest rate plus 4%, with a minimum of 12% per annum.
6.4 If the Buyer is in default vis-à-vis MegaGen, the Buyer shall be obliged to reimburse MegaGen for the costs incurred by MegaGen as a result of the default in order to obtain extra-judicial satisfaction. These costs are fixed at 15% of the purchase price or compensation agreed for the benefit of MegaGen, with a minimum of €500. The Buyer shall also be liable to MegaGen for the full legal costs incurred by MegaGen in obtaining payment in all instances, except to the extent that the Buyer demonstrates that these are unreasonably high.
6.5 MegaGen shall at all times be entitled to set off all amounts owing to it from the Buyer and/or any affiliate of the Buyer, whether or not due and payable, against any counterclaim of the Buyer and/or any affiliate of the Buyer. Buyer is not authorized without MegaGen’s consent to set off its claims, if any, against MegaGen. Buyer is not entitled to any right of suspension vis-à-vis MegaGen. In these General Conditions “an associated company” means the company belonging to the same group, within the meaning of Art. 2:24b Civil Code, and a participation within the meaning of Art. 2:24c Civil Code.
7.1 All claims of MegaGen against Buyer are immediately due and payable if one or more of the following occurs: (I) Buyer is in default with respect to any of its obligations to MegaGen; (II) after the conclusion of the Agreement circumstances come to MegaGen’s knowledge which give good reason to fear that Buyer will not fulfill its obligations; (III) Buyer is in default with respect to its obligations to its (house) bank; (IV) a petition is filed or offered by Buyer or a third party in respect of Buyer for a moratorium, bankruptcy, any (form of) insolvency procedure or judicial or extrajudicial debt restructuring (V) an attachment is levied on a substantial part of the Buyer’s goods or on goods under the Buyer’s control which are owned by MegaGen or on goods of the Buyer to which MegaGen has a security right; (VI) one or more of the aforementioned circumstances occurs in respect of an affiliate of the Buyer which has entered into an agreement with MegaGen.
7.2 In the cases mentioned in clause 7.1 the Buyer shall be in default and MegaGen shall be entitled without judicial intervention and without notice of default to suspend the further performance of the agreement or to rescind or terminate the agreement with immediate effect, all without prejudice to MegaGen’s right to claim damages.
8.1. If MegaGen is in default, the Buyer may not terminate the contract with regard to the part of the Product already delivered to the Buyer, unless such part has no independent value or MegaGen is also in default with regard to this specific part pursuant to clause 9 (Complaints).
8.2. As far as an order exists, the Buyer may terminate the agreement prematurely in writing but only for important reasons as meant in section 7:408 paragraph 2 BW. In that case the Buyer shall owe a reasonable part of the wages to be determined in accordance with the provisions of Article 7:411 of the Dutch Civil Code. This reasonable part is the full wage, subject to evidence to the contrary to be provided by the Buyer.
8.3. If MegaGen terminates the contract because of default of Buyer, it shall be presumed that MegaGen cannot realise the Product (whether or not partly ready and/or delivered) and that the value of the Product to MegaGen is nil, subject to evidence to the contrary from Buyer whereby Buyer proves a concrete buyer and a concrete value. If Buyer provides the aforementioned evidence to the contrary, MegaGen’s damage or net margin shall be deemed to be 20% of the invoice value, subject to evidence to the contrary from Buyer.
9.1 Buyer must examine (or have examined) the Products purchased upon delivery - or as soon thereafter as possible. In doing so, Buyer must at least verify whether the delivered Products comply with the agreement, including:
9.2 Complaints about visible defects which can be discovered under clause 8.1 must be reported by the Buyer in writing - including by e-mail - to MegaGen within 8 days after delivery, on pain of forfeiture of rights.
9.3. Non-visible defects must be reported to MegaGen in writing within 8 days after discovery, but at the latest within 1 year after delivery, under penalty of forfeiture of rights.
9.4. The Buyer must keep Products and (evidence) documents about which it complains, so that MegaGen has a real opportunity to inspect them, on pain of porfeiture of the Buyer’s right.
9.5 The Buyer must indicate complaints relating to faulty delivery of or transport damage to Products on the relevant transport documents, under penalty of forfeiture of rights.
9.6. If a complaint is well-founded, MegaGen will - at its option - in order to avoid default: (i) (re)pay the purchase price or compensation or; (ii) repair the Products to what was agreed or; (iii) still deliver the Products, unless this has meanwhile become pointless for the Buyer. The latter must be substantiated by the Buyer. After MegaGen has performed (i), (ii) or (iii), the Buyer shall have no further claim against MegaGen with respect to the complaint. If MegaGen is liable for damages of the Buyer then in each case Clause 12 (Liability) shall apply.
10.1 MegaGen retains title to all Products delivered and to be delivered by it to the Buyer until payment by the Buyer to MegaGen has been fully extinguished:
10.2 Buyer may not process or resell Products obtained from MegaGen, even in Buyer’s normal course of business, without prior payment to MegaGen of all outstanding invoices in respect thereof.
10.3 If the Buyer fails to fulfill its obligations to MegaGen or if there is reasonable fear that it will not do so, MegaGen shall be entitled to remove or cause to be removed from the Buyer’s premises or from third parties holding the Product on the Buyer’s behalf all Products to which the retention of title referred to in clause 10.1 applies. The Buyer shall be obliged to cooperate fully to such effect under penalty of a daily fine of 10% of the amount owed, without prejudice to MegaGen’s right to claim full damages and performance.
10.4 The Buyer shall mark the Products delivered under MegaGen’s retention of title with indications that such Products have been delivered through - and are therefore the property of - MegaGen, failing which it shall be presumed that all Products of the same kind present at the Buyer’s premises belong to MegaGen. The latter is an agreement of proof.
10.5 The Buyer shall be obliged towards MegaGen to furnish for all existing and all future claims of MegaGen against the Buyer, for whatever reason, at MegaGen’s first request, (additional) security which in MegaGen’s opinion is and will be sufficient security on an ongoing basis.
11.1 MegaGen provides warranties only if agreed and made explicit at the conclusion of the contract and only to the extent set forth in the warranty conditions then handed over to the Buyer.
11.2 MegaGen only permits the exchange of a Product if this has been expressly agreed in writing at the time of the conclusion of the contract or thereafter and only in accordance with the exchange conditions then handed over to Buyer.
12.1 Any right of Buyer against MegaGen to damages as a result of an Event, whereby a series of related events counts as one “Event” is limited to the amount of any payment made by MegaGen’s (liability) insurance in this regard, plus the applicable deductible. If there is no insurance, the insurance does not provide coverage or does not pay out, any right of Buyer against MegaGen to compensation per Event shall be limited to a maximum of half of the net invoice value of the affected Products during the time period in which the Event occurred, unless the Event is the consequence of or relates to an individually invoiced Product or an individualizable part thereof, in which case compensation shall be limited to a maximum of the invoice value thereof.
12.2 On the part of the Buyer, the following shall never be eligible for compensation:
12.3 The above limitations also apply to wrongful acts of MegaGen and warranties whether implied or not given by MegaGen. The above limitations do not apply if the damage is due to intentional or deliberate recklessness of MegaGen or of persons charged with the management of its business.
12.4 MegaGen shall never be liable for damage caused by the injudicious or careless use of the Buyer or persons for whom the Buyer is liable, nor in the event that the Products have been used by non-qualified persons.
12.5 The Buyer shall indemnify MegaGen against all claims of third parties related to or arising from the agreement performed by MegaGen, if and insofar as MegaGen is not liable to the Buyer for these by virtue of the provisions of these General Conditions of Sale or the claim - cumulated with any claim of the Buyer - exceeds the maximum claim set forth in the General Conditions of Sale. The Buyer shall compensate all damages suffered by MegaGen in this respect, including the full costs of defense.
12.6 Any legal claim of the Buyer against MegaGen shall lapse one year after the commencement of the day following the day on which the Buyer became aware of and/or could assert its legal claim against MegaGen.
13.1 Force Majeure means a failure of MegaGen that is caused (in part) by circumstances that cannot be attributed to MegaGen and were not foreseeable. These circumstances include in any case: stagnation at suppliers or other third parties - such as (sea or air) carriers and customs - on which MegaGen depends; strikes or work stoppages; closure by order of the government; the weather; major and minor acts of war; natural disasters such as earthquakes; terrorism; fire; loss or theft of tools or machinery; a general lack of necessary raw materials and/or other items or services required for the realization of the agreed performance; blockades of roads, waterways and ports; import or trade restrictions; and cybercrime.
13.2. MegaGen shall also be entitled to invoke Force Majeure if the circumstance preventing (further) performance occurs after MegaGen should have fulfilled its obligation.
13.3. In the event of Force Majeure the obligations of MegaGen to Buyer shall be suspended by operation of law and without further formalities. MegaGen will inform Buyer as soon as possible.
13.4 If the period in which fulfillment of the obligations by MegaGen is not possible due to Force Majeure lasts longer than 10 working days, both parties are entitled to dissolve the agreement without either party being liable to any compensation.
13.5. If at the occurrence of the Force Majeure MegaGen has already partially fulfilled its obligations, or can only partially fulfill its obligations, it is entitled to separately invoice the part already delivered or the deliverable part and the Buyer is obliged to pay this invoice as if it concerned a separate agreement. However, this does not apply if the part already delivered or the deliverable part has no independent value.
The legal relationship between MegaGen and Buyer is governed by Dutch law. The Vienna Sales Convention (“CISG”) is not applicable. All disputes between the Parties shall be exclusively decided by the Dutch courts and more specifically, subject to the applicability of article 93 Rv, the competent court for Breda. MegaGen, however, remains entitled to sue Buyer before the competent court of Buyer’s domicile.
