General Terms and Conditions of Purchase
December 2019- Version 2.0
These General Terms and Conditions shall, to the exclusion of terms and conditions applied by third parties, govern all requests for quotations made by Cycle Care B.V. (Cycle Care) to a third party ("Supplier"), as well as all agreements and acts, whether of a preparatory or executional nature, which are related thereto, such as quotations, order confirmations, purchasing orders, orders and delivery dates, except to the extent that these General Terms and Conditions specify otherwise.
Deviating conditions shall only apply to the extent that Cycle Care expressly agrees to them in writing, and they shall apply exclusively to the agreement(s) for which they are made.
In these General Terms and Conditions, "goods" shall be understood to include goods, hardware, software, firmware, databases, documentation and the results of services.
1. Requests for Quotations
a) All requests for quotations and all information furnished in this context by or on behalf of Cycle Care may contain industrial secrets and/or intellectual property, shall be treated with confidentiality and may only be used to prepare for the submission of a quotation. Except where required in preparing for the submission of a quotation or where permitted, any kind of reproduction or publication, of (part of) a request for a quotation shall be prohibited in any shape or form.
b) If a request for a quotation explicitly deviates from these General Terms and Conditions, said deviations shall prevail. The applicability of the Supplier's own general terms and conditions is hereby expressly ruled out.
a) A quotation from a Supplier shall be irrevocable for a period of thirty (30) days after its receipt by Cycle Care, unless the request for a quotation stipulates a different period.
b) Cycle Care shall be entitled at all times to terminate negotiations without giving reasons and without being liable to compensate the other party.
c) An agreement shall be deemed to have been concluded as soon as Cycle Care accepts a written quotation by means of placing a written order. If, however, the order is sent after expiry of the period referred to in Clause 2(1) or the order deviates significantly from the quotation, the agreement shall be deemed to have been concluded in accordance with the order, unless the Supplier rejects the order in writing within fourteen (14) days of the date of the order. The following items shall form an integral part of the agreement:
1. The (purchase) order from Cycle Care;
2. These General Terms and Conditions;
3. The quotation;
4. The request for a quotation;
d) Agreements may only be amended and/or supplemented in writing.
a) The goods supplied must satisfy the provisions of the Agreement. They shall not be deemed to have satisfied the provisions of the Agreement, if they do not possess the properties which Cycle Care was entitled to expect pursuant to the agreement.
b) Where no detailed description has been provided of the requirements of the goods, they shall in any event be of good quality and satisfy, at the very least, the normal requirements of reliability, effectiveness and workmanship.
c) Cycle Care shall be entitled to reject goods because they do not satisfy the provisions of the agreement, provided that Cycle Care informs the Supplier accordingly within four (4) weeks of having discovered this to be the case.
d) The goods delivered must be free from all special third-party charges, limitations and rights, including limitations and rights which result from or are connected with intellectual property rights, with the exception of third-party charges, limitations and rights which the Supplier informed Cycle Care about in writing and which Cycle Care has expressly accepted in writing. The Supplier shall hold Cycle Care harmless against third-party claims in this respect, wherever and whenever such claims might be instigated, and also against any and all damage and costs which Cycle Care might incur in this connection.
4. Testing and Inspection
a) Cycle Care shall be entitled to test and/or inspect the goods for, amongst other things, damage, quantity, quality and weight within 4 (four) weeks of their delivery. The Supplier shall be obliged to render, free of charge, all reasonable cooperation required by Cycle Care within the context of the testing and inspection, including the granting of access to the Supplier's facilities and the provision of personnel expertise.
b) Should the goods become damaged or are used during testing, the Supplier shall have no claims against Cycle Care if the goods are partially or totally rejected, and Cycle Care shall have no claims against the Supplier if the goods are approved.
c) Should Cycle Care reject the goods or find them not to be in order during an inspection, the Supplier shall collect them at its own expense from Cycle Care within fourteen (14) days of Cycle Care having informed the Supplier in this respect. Should the Supplier fail to satisfy this obligation, Cycle Care shall be entitled to have the goods delivered to the Supplier at the Supplier's expense, without prejudice to any of Cycle Cares other rights or claims.
5. Delivery and Transfer of Title
a) The Supplier shall deliver the goods within the agreed period to the agreed place in accordance with the Agreement.
b) Cycle Care shall acquire title to the goods:
1. As soon as the goods are approved or found to be in order, in cases where Cycle Care tests or inspects the goods after delivery in accordance with Clause 5.
2. Four (4) weeks after delivery in all other cases, unless Cycle Care informs the Supplier in writing within this period that the goods do not satisfy the provisions of the agreement.
c) The risk of loss attaching to the goods shall pass to Cycle Care with effect from the moment of delivery.
d) In the event that Cycle Care rejects the goods, finds them not to be in order during inspection, or invokes its right to dissolve the agreement on reasonable grounds or its right to have the goods replaced, the risk of loss attaching to the goods shall be deemed to have remained with the Supplier throughout.
6. Prices, Charges, Invoices and Payment
a) All prices and charges shall be deemed to include all direct and indirect costs of whatever kind. The prices and charges shall be exclusive of turnover tax. Delivery shall take place D.D.P. (Delivery Duty Paid) in accordance with the Incoterms 2010, except as agreed otherwise in writing within the Agreement.
b) Except as otherwise specifically agreed in the Agreement, once Cycle Care has acquired title to the goods, the Supplier shall send its invoices to the address specified by Cycle Care in its order, quoting, in any event, the agreement number and the purchase order number (without prejudice to the other legally required invoice details) and enclosing the agreed documentation.
d) Invoices which satisfy the conditions of clause 8(3) shall be paid within sixty (60) days of the date of their receipt, after any possible settlement or compensation of Cycle Cares claims against the Supplier has taken place.
e) Cycle Care shall not be required to pay a proportional part of an invoice if it has not received the agreed quantity of goods at the agreed address.
f) Payment as described in Clause 8(4) shall not prejudice any possible recovery rights or other claims on the part of Cycle Care with regard to the goods delivered and/or services rendered.
g) Invoices and payments shall take place in Euro currency, unless otherwise specified in a purchase order.
h) Should Cycle Care have failed to pay an invoice which satisfies the conditions of Clause 8(3), without a valid reason, within the period specified in Clause 8(4), Cycle Care shall be liable to pay interest on the amount owed to the Supplier, to be calculated on an annual basis and equivalent to the promissory note discount rate of the European Central Bank.
i) The expiry of a payment period or non-payment of an invoice by Cycle Care, shall not entitle the Supplier to terminate its services or, in the event that the expiry or non-payment is a result of the defective nature of the invoiced goods or services and/or the inaccuracy (of the content) of the invoice (details), to postpone its services.
7. Force Majeure
a) To the extent that a failure to comply with an obligation cannot be attributed to the Supplier itself and is not at the Supplier's risk, the Supplier shall not be deemed to be in default and shall not be liable to pay compensation, provided that the Supplier informs Cycle Care in writing about the default and the underlying reasons forthwith and, in any event, within the period agreed for compliance with the obligation.
a) If the goods delivered fail to satisfy the provisions of the Agreement, Cycle Care may demand that the Supplier deliver the missing goods, or repair or replace the goods, within a reasonable period to be specified by Cycle Care. Any and all costs related and/or involved shall be at the Supplier's expense.
b) In the event of the Supplier still failing to render the service in question within the period referred to in the first paragraph, Cycle Care shall be entitled to have the delivery, repair or replacement carried out by a third party, and recover the costs involved from the Supplier, without seeking prior court intervention.
c) The provisions of this paragraph 10 shall not prejudice Cycele Cares other rights and claims with respect to the default.
a) Without prejudice to the provisions contained in an agreement, the Suppliers warrants that:
1. software, firmware and databases shall be free of viruses and other foreign items at the time of delivery, testing and/or inspection.
2. the Supplier is unconditionally authorized to perform the services and deliver the goods encompassed in the context of the Agreement.
3. the goods are suited to the purpose for which Cycle Care ordered and received them.
4. the employees and third parties whose services the Supplier uses in the performance of its contractual obligations have sufficient and relevant expertise, experience and training.
5. all services rendered and goods delivered in the context of the Agreement satisfy all the relevant laws and regulations in this respect, which shall also be understood to include EC regulations, in, amongst others, the field of medical devices, components, certification and standardization.
6. the Supplier possesses the permits and licenses required for the performance of this Agreement and shall provide copies to Cycle Care on first request.
b) If, in the opinion of Cycle Care, the warranty stipulations described in the first paragraph have not been satisfied, the Supplier shall be deemed to be in default and Cycle Care shall be entitled to exercise, forthwith and without seeking court intervention, the rights which it derives from said default.
10. Licenses for Software/Firmware/Databases
a) Cycle Care shall acquire a non-exclusive license to use the software, firmware and databases (including new versions and releases) furnished by the Supplier under the terms of an agreement, for an indefinite period of time with effect from the time of delivery of said goods. Without prejudice to this license, the right to use the goods may be transferred to one of the companies belonging to the Cycle Cares group. The Supplier agrees that Cycle Care is and shall remain entitled to pledge this license.
b) The license shall, in any event, be understood to include loading, displaying on screen, copying, executing, transmitting and storing. In certain cases, the license shall also be understood to include the right to issue sub-licenses and all activities required in that context.
11. Transfer of Intellectual and Industrial Property Rights
a) Without prejudice to the provisions contained in Clause 4(4), Cycle Care shall hold title to and may exercise all the intellectual and industrial property rights with regard to the results of services to be performed by the Supplier on the basis of an agreement. If any action is required in transferring title and/or any intellectual and/or industrial property rights, the Supplier shall render its unconditional cooperation in this respect at no charge. The Supplier hereby grants Cycle Care an irrevocable power of attorney to effect the transfer (including signing the necessary documents on behalf of the Supplier) and agrees that Cycle Care is unconditionally entitled to register and/or file the intellectual and industrial property rights in the appropriate registers or to have this done on its behalf.
b) The Supplier shall be obliged, either at Cycle Cares first request or immediately after the dissolution and/or termination of this agreement, and for whatever reason, to accurately and fully complete and sign in duplicate the documents required to execute the provisions of the first paragraph, and to send these documents to Cycle Care immediately.
c) In the event that the Supplier fails to comply with the provision of the second paragraph in full, in part, or on time, the Supplier shall forfeit a penalty, payable without court intervention, of EURO 10,000 per event and for each consecutive day of default, without prejudice to Cycle Cares other rights in this respect. The burden of proof with regard to the Supplier having fully and correctly completed the deed of transfer on time, and having sent it to Cycle Care in a timely fashion, shall rest exclusively with the Supplier.
d) The Supplier hereby unconditionally and irrevocably waives its right to exercise any possible droit moral with regard to the results of the services and/or activities to be performed on the basis of an agreement.
e) The Supplier guarantees that it is unconditionally entitled and authorized to transfer the aforementioned results to Cycle Care and the aforementioned results are not encumbered with any third-party claims whatsoever and/or that no such claims have been created.
12. Protection of Intellectual Property Rights
a) The Supplier guarantees that the goods it supplies and the services it renders shall not infringe any current third-party intellectual and industrial property rights and that the use of said goods and services shall not otherwise constitute a wrongful act towards third parties.
b) The Supplier shall indemnify Cycle Care against claims from third parties in this respect, wherever and whenever such claims might be instigated.
c) In the event that the Supplier admits that the goods it supplies and/or the services it renders infringe on any current third-party intellectual and industrial property rights and/or constitute a wrongful act towards any third party, or in the event that Cycle Care is prohibited from this use pursuant to an arbitral award or court ruling, the Supplier shall, at the choice of Cycle Care, either:
1. Acquire the right, on behalf of Cycle Care, to continue using the goods and/or services under the conditions of the agreement in question; or
2. Replace the goods and/or services or change them in such a way that the infringement no longer exists; or, if the aforementioned options are not reasonably feasible,
3. Take back the goods, crediting Cycle Care for the amounts it has already paid to the Supplier; all of this without prejudice to Cycle Cares other rights, including its right to compensation.
d) The Supplier shall conduct out the defense in any legal proceedings which might be instigated against Cycle Care for infringement of any current third-part intellectual and industrial property rights and/or (otherwise) any wrongful act against a third party in connection with goods supplied and/or services rendered by the Supplier. The Supplier shall indemnify Cycle Care against all damage and costs incurred by Cycle Care as a result of such legal proceedings.
a) Cycle Care shall be entitled to dissolve any agreement and related purchase orders by means of a registered letter, without notification of default or court intervention, if the Supplier applies for or is granted a (temporary) moratorium, files for bankruptcy or is declared bankrupt, the Supplier's business enters into liquidation, the Supplier ceases its current operation, a considerable portion of the Supplier's assets are seized, Cycle Care considers the Supplier to be no longer capable of independently guaranteeing the continuity of the use by Cycle Care of the goods (to be) supplied under the agreement and/or the results of the services, or the Supplier can no longer be deemed capable of meeting its obligations under an agreement.
b) If Cycle Care dissolves an agreement on the basis of the provisions of the first paragraph, Cycle Care shall, at the moment of dissolution, acquire an unconditional and irrevocable right to use the information furnished by the Supplier for an indefinite period, irrespective of the nature of this information and the way and manner in which this was and/or will be acquired. In the context of this Clause, information shall also be understood to include the source code, object code, the listings, the binaries and all the (technical) documentation relating to the goods. To the extent that Cycle Care does not already possess this information, the Supplier shall furnish Cycle Care with this information immediately at Cycle Cares first request and in the way and form chosen by Cycle Care. To the extent that this is necessary, the Supplier hereby agrees to waive any future rights in this respect. The parties may agree that the information referred to in this Clause be made available to Cycle Care, under still to be agreed conditions, after this agreement has been signed, but with due observance of the provisions of this Clause and without any deviation from said provisions. Each and every deviation from the provisions of this Clause shall be invalid.
c) Cycle Care shall be entitled to terminate or cancel an agreement without cause by means of a registered letter, without notification of default or court intervention, at least thirty (30) days prior to the scheduled delivery date, without having any liability to Supplier. If delivery of any goods is delayed more than 7 days beyond the scheduled delivery date, Cycle Care may cancel the delivery by notice, and without liability, to Supplier. Cycle Care may reschedule the delivery of all or part of the goods ordered by Cycle Care by notice to Supplier at least thirty (30) days prior to the scheduled delivery date. Except as expressly stated by Cycle Care in a purchase order, Cycle Care will not reschedule a purchase order scheduled for delivery date within thirty (30) days.
d)Termination and/or dissolution of an agreement and/or any related purchase order, for whatever reason, shall not prejudice the licenses and other rights granted to Cycle Care.
a) The Supplier shall treat as confidential the information which it receives, such as specifications, technical information, company information and other information of a confidential nature, and shall not disclose such information to any person(s) other than its own employees, nor use it for any purpose other than in the performance of an agreement. With the termination and/or dissolution of an agreement, the Supplier shall immediately send all the carriers of this information and all copies thereof to Cycle Care.
b) Without Cycle Cares prior consent, the Supplier shall in no way disclose, advertise or publish (the existence of) provisions from, or transactions performed under this agreement.
c) The Supplier shall also ensure that these obligations are also imposed on its own employees and any independent third parties involved, in any way, in the performance of this agreement.
d) Any infringement of the provisions of the first and second paragraphs by an employee of the Supplier shall be deemed to be an infringement of this obligation by the Supplier.
e) In the event of any infringement of one of the obligations contained in a) to c), the Supplier shall immediately pay a penalty of EURO 25,000, without court intervention and without prior notification of default being required.
a) The Supplier hereby undertakes that it shall comply with all applicable laws, regulations, standards and duly observe all the terms and conditions of any agreement concluded or to be concluded between Cycle Care and Supplier. Consequently, the Supplier shall indemnify Cycle Care against any and all claims by Cycle Care, Cycle Cares clients and/or third parties in this respect, wherever and whenever these might be instigated on whatever grounds (which includes in any case any product liability).
b) The Supplier hereby undertakes that it shall reimburse and pay all compensation, including costs and possible penalties, which Cycle Care may have to pay to its client(s) as a result of the Supplier's non-compliance or inadequate compliance with the terms, conditions and provisions in question. Supplier shall ensure that it is properly insured.
c) The provisions of this Clause shall apply without prejudice to the other provisions of these General Terms and Conditions.
16. Governing Law and Settlement of Disputes
a) These General Terms and Conditions shall be governed by the laws of the Netherlands, with the exception of the Vienna Convention (The United Nations Convention on Contracts for the International Sale of Goods). Any disputes which may arise about the interpretation or implementation of these General Terms and Conditions and about the agreements concluded shall be submitted to the competent court in Amsterdam, the Netherlands, including the President of the Court judging in summary proceedings. However, all disputes shall first be discussed between the Supplier and Cycle Care in order to reach a solution in mutual consultation.
a) The Supplier shall, at its own expense and risk, take the necessary measures to obtain permits, if and to the extent that these are required in the context of the performance of this agreement.
b) Any failure on the part of one of the parties to enforce any of the provisions of this agreement within a period specified in these General Terms and Conditions shall not affect the right of said party to demand compliance at a later stage, unless the party in question has expressly accepted the event of non-compliance in writing. The provisions of the previous sentence shall not prejudice the parties' (other) rights and obligations in this respect.
c) The rights and obligations resulting from an agreement may be transferred by Cycle Care to a third party without further requirements. The Supplier's consent shall not be required in this respect.
d) If any of the provisions of the General Terms and Conditions proves to be void or is repudiated, the other provisions shall remain in full force and this shall have no effect whatsoever on (the performance of) the other parts of an agreement. Furthermore, in such an event, the parties shall consult with one another as soon as possible in order to reach a solution suited to the nature of the agreement and which most closely matches the aim and meaning of the void or repudiated provision.
e) During the term of the agreement and for a period of one year after termination of the agreement, both parties shall refrain from employing the other party's employees who were involved in the performance of an agreement, or having these persons work for them, directly or indirectly, unless this has been the subject of proper consultations with the other party.
f) Cycle Care shall at all times be entitled to have the Supplier's compliance with its obligations under an agreement monitored by an independent expert at Cycle Cares own expense. The Supplier shall be obliged to render all reasonable cooperation free of charge, irrespective of the nature of this cooperation, including the granting of access to the Supplier's facilities.
g) Termination or dissolution of this agreement shall not prejudice the provisions of these General Terms and Conditions with regard to intellectual property, warranty, confidentiality and the settlement of disputes.