GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY LAMBOO MEDICAL
Article 1. Definitions
The following terms in these general terms and conditions have the following meaning:
1.1 User: the User of these general terms and conditions: Lamboo Specials Sales B.V. and/or its directly and/or indirectly affiliated parent, sister, and subsidiary companies.
1.2 Buyer: the natural or legal person or his legal successor for whose benefit services are rendered, goods or Items are delivered, work is created or any other activity is performed by or on behalf of the User.
1.3 Item: all goods to which the User’s offer and/or the agreement between the User and the Buyer relates, and which are assembled and delivered by the User, including mobile medical devices. Goods supplied to the User or the Buyer by third parties, including medical equipment, are not covered by the definition ‘Item’ according to these general terms and conditions.
1.4 Service: all services covered by the User’s offer and/or the agreement between the User and the Buyer, including the maintenance of mobile medical facilities.
Article 2. Applicability
2.1 These general terms and conditions shall apply to and form part of all offers by the User and agreements between the User and the Buyer, as well as any resulting agreements and further (legal) acts by the User with, for, on behalf of and/or towards the Buyer. If it was previously agreed between the User and the Buyer that these general terms and conditions apply, they shall remain applicable to new offers, agreements and all other (legal) acts between the User and the Buyer, unless explicitly agreed otherwise.
2.2 The Buyer can also download these general terms and conditions at www.lamboo-medical.com/generalconditions.
2.3 These general terms and conditions shall at all times prevail over those, which may be applied by the Buyer. The User hereby explicitly rejects the applicability of those general terms and conditions of the Buyer.
2.4 If any provision of these general terms and conditions is annulled or declared void or otherwise unenforceable, any lawful part thereof shall remain in force. The nullified, void or unenforceable part will be replaced by the User by a provision that comes as close as possible to the intentions of that original provision but which is permitted by law.
2.5 In case of discrepancy between the content of the agreement concluded between the User and the Buyer and these general terms and conditions, the provisions of the agreement shall prevail. The provisions of the User’s offer shall prevail over the provisions of these general terms and conditions, insofar as this agreement and/or the offer is concluded in writing.
2.6 The User is allowed to amend these general terms and conditions unilaterally. The amended general terms and conditions shall apply to all offers, agreements and other (legal) acts between the User and the Buyer from the moment the User informed the Buyer about the amended general terms and conditions.
Article 3. Offers
3.1 Any offer made by the User shall be deemed to be made without any obligation and non-binding, even if the offer includes a deadline for acceptance.
3.2 If the offer does not specify a deadline for acceptance or if the nature of the offer or the offer itself does not specify a deadline for acceptance, the offer is valid for 60 days from the date of the offer. Nevertheless, the User always has the right to withdraw the offer within the 60-day period, without being liable for compensation in any way.
3.3 The User may extend or otherwise adjust the term under Article 3.2 in writing. Even if there is a deviating term, the User is entitled to withdraw his offer at any time, without being liable for compensation in any way.
3.4 The User is not liable for obvious errors and omissions in any offer. The User is also not obliged to execute any offer with obvious errors or mistakes.
3.5 Offers made by the User shall only become binding after a) the User has either sent an order confirmation to the Buyer b) or the User has received a purchase order from the Buyer which is identical to the offer made to the Buyer. If the purchase order deviates from the User’s offer, the User shall only be bound by the offer after he has confirmed the purchase order in writing. The Buyer is legally bound by his purchase order.
Article 4. Amendments
4.1 The parties may only agree deviating terms in writing. These will not form part of these general terms and conditions.
Article 5. Provisional sums, variations in the amount of work and materials
5.1 If an agreement does not include a fixed amount for certain Items and/or Services, the Services actually performed and Items delivered and/or consumed and the corresponding quantities/units will be charged.
5.2 As soon as the User foresees that – apart from what is stipulated in Article 5.1 – a fixed amount (or amounts) included in the agreement will be exceeded by more than 10%, the User shall – where reasonably possible – inform the Buyer of this. The agreement shall – subject to cancellation under Article 5.3 – be amended accordingly.
5.3 In case of a proposed amendment to the agreement by the Buyer, this amendment shall only be binding after the User confirms the amendment in writing to the Buyer. In case of a proposed amendment to the agreement by the User, the amendment is binding after the User has communicated the amendment to the Buyer.
5.4 In the event that the amount referred to in Article 5.2 is actually exceeded by 10%, the Buyer is entitled, to terminate the agreement with immediate effect. However, the work performed and costs incurred by the User up to the time of termination for the Items already ordered by the User and/or work and/or Services scheduled within a period of one (1) month counting from the termination date shall remain payable by the Buyer. There will be no refund of amounts already paid. If the ordered Item has not yet been delivered, the User is not obliged to deliver the Item produced up to the termination date. Unless the User invokes the provisions of Article 15.2, the Buyer shall have to take back third party goods delivered to the User within fourteen (14) days after the notice of termination. The risk of the aforementioned goods shall pass to the Buyer as of the termination date. If the Buyer does not take back the goods in time, the User shall be entitled to charge (storage) costs to the Buyer.
5.5 The Buyer may not invoke the provisions of Article 5.4 in cases where the amount (or amounts) included in the agreement is (a) exceeded by less than 10% or (b) exceeded by more than 10% as a result of circumstances beyond the User’s control or (c) exceeded by more than 10% as a result of circumstances attributable to the Buyer. If there is a circumstance as described in Article 11.2 or 6.2 of these general terms and conditions, the Buyer may in any case not invoke the provisions of Article 5.4.
Article 6. Prices
6.1 All Prices quoted by the User are exclusive of VAT and other fees, unless otherwise stated in writing by the User.
6.2 Notwithstanding Article 5.2 and Article 5.4, if after the User has made an offer or entered into an agreement and before the agreed time of delivery, performance of the Services and/or completion of the work, the prices of tools, raw materials or parts, energy costs, wages, customs duties, taxes, the official exchange rate or any other price-determining factors have changed, the User may adjust the price accordingly and unilaterally.
6.3 With reference to the provisions of Article 5.5(c), price increases resulting from additions and/or amendments to the agreement made at the Buyer’s request shall be for the account of the Buyer.
6.4 The Buyer must make any objections to any bill or invoice known within (10) ten days of receipt, under penalty of forfeiture of rights.
Article 7. Payment
7.1 Payment shall be made prior to completion or delivery of the Item and/or delivery of the Service. More specifically,
60% of the total amount due shall be paid upon acceptance of the offer as stipulated in Article 3.5, 30% upon
completion of the roof construction and the final 10% before the time the Item is delivered, unless the parties have
7.2 If payment after the completion or delivery of the Item/Service is agreed, the Buyer is obliged to pay the fee due or
the remaining part within the agreed payment term, as included in the agreement.
7.3 If the parties have not agreed otherwise, a payment term of a maximum of fourteen (14) days shall apply where amounts
due to the User are concerned.
7.4 However, any claim of the User shall remain fully due and payable, and the Buyer shall be in default if:
- the Buyer has requested a suspension of payment or if a suspension of payment has been granted, his bankruptcy has been applied for or if he has been declared bankrupt, or his estate is assigned;
- the Buyer’s property or part thereof is seized;
- the Buyer ceases his business, or sells or transfers shares in (an essential part of) his company to a third party, or proceeds to do business in a different manner.
7.5 Debts incurred by the Buyer – regardless on what account- must be paid to the User in cash or by means of a giro or bank transfer, unless the User gives prior written consent to another method of payment.
7.6 In the agreement with the User, the Buyer is expected to perform first. In this context, the performance of the User consists of completion or delivery of the Item or Service.
7.7 In the event that the Buyer does not pay in time any amount due, the Buyer is in default by operation of law, without a notice of default being required. From that time onwards, the Buyer owes interest of 1% each month (where part of a month is considered to be a month) on the amount due until this has been paid in full, unless the statutory interest rate is higher. In that case, the statutory interest shall be due until the full payment of any amount due. All extrajudicial collection costs shall be borne by the Buyer. In terms of extrajudicial collection costs, the Buyer owes 15% on the amount due, with a minimum of €250.00.
7.8 Payments made by the Buyer will first be offset against the costs that are due, then the interest that is due and finally the price that is due.
7.9 T he User is authorised to set-off in accordance with Article 6:127 et seq. of the Dutch Civil Code. The Buyer shall never be authorised to set off.
7.10 The User is authorised to suspend its obligations under the agreement as long as the Buyer has not fulfilled its obligations. The Buyer is never authorised to suspend any of his obligations.
Article 8. Delivery and Delivery Time
8.1 Unless otherwise agreed, the Item will be delivered Ex Works in accordance with Incoterms 2020. Services will be delivered at the agreed location.
8.2 The User shall make all reasonable efforts to deliver on time. Nevertheless, the delivery time of the Item or Service specified by the User is never be a fatal deadline within the meaning of Article 6:83(a) of the Dutch Civil Code. Instead it is a term given without any obligation.
8.3. Changes to the agreement may lead to adjustment or exceeding of any previously stated (non-fatal) delivery times. In the event of adjustment, the delivery time shall be deemed to have changed to the new non-fatal term to be specified by the User.
8.4 If, due to the Buyer’s fault, delivery cannot be made after the User has announced delivery, the Buyer shall nevertheless be obliged to pay the full amount due, as if the Item/Service had been delivered to him. In that case the User may additionally charge the Buyer reasonable storage-, travel- and/or accommodation costs. The guarantee period, as referred to in Article 9.1, shall also commence after the announcement of delivery by the User.
8.5 The risk in respect of damage, depreciation and/or destruction of the Item shall pass to the Buyer from the time the delivery date announced by the User has been exceeded.
8.6 In the exceptional case that the User has expressly agreed in advance and in writing on a strict deadline with the Buyer and this deadline is exceed, the User shall only be obliged to grant a discount of up to 2% of the purchase price by way of compensation (of damages). The Buyer is not entitled to any other form of compensation or any other (discount) percentage.
8.7 If the User and the Buyer have agreed that the Buyer orders a good or service from a third party, which good or service is to be installed in the Item or which is to be incorporated in it, used or used in the performance of the Service, or manufactures, delivers or performs it himself, the term agreed between the User and the Buyer on which the good or service of the third party has to be delivered or has to be delivered by the Buyer himself, shall be considered a fatal term. If the Buyer is unable to deliver (or have delivered) the third party’s good or service or the product to be produced or performed by the Buyer himself within the agreed period, the Buyer shall be obliged to pay the User an additional amount equal to 2% of the purchase price.
8.8 Notwithstanding the provisions of Article 8.8, in the event that the fatal term as stated in Article 8.8 is exceeded, the User shall be entitled to deliver the Item to the Buyer without any of the goods to be delivered by the third party or the Buyer. Upon this delivery, the User has fulfilled all his obligations. The User is not obliged to carry out assembly work at a later date.
Article 9. Guarantee
9.1 The User gives a guarantee of twelve (12) months after the delivery date of a new Item on parts manufactured by the User, with the exception of the bodywork of the Item. During this guarantee period, the User shall replace demonstrably defective parts of the Items at no cost. However, the costs as stated in Article 9.6 shall be paid by the Buyer, unless explicitly stipulated otherwise.
9.2 The guarantee as referred to in Article 9.1 shall only apply if timely maintenance has been carried out on the Item by the User or a third party designated by the User. If not stated otherwise, a maintenance interval of six (6) months shall apply.
9.3 The User gives a guarantee of sixty (60) months on the bodywork of the Item.
9.4 No guarantee is given on Services.
9.5 The guarantee as described in articles 9.1 through 9.3 only applies if the Item has been used as intended. In case of use of the Item other than its intended use or in case of inexpert use, negligence or use other than as prescribed in the User’s instructions, the Buyer cannot claim the guarantee as defined in articles 9.1 to 9.3.
9.6 Personnel costs, travel expenses and accommodation costs (including hotel stays) incurred by the User in connection with the guarantee obligations must be paid by the Buyer.
9.7 The guarantee does not apply to goods purchased by the User from third parties. The guarantee also does not apply to products that the Buyer orders from third parties or manufactures himself, as described in Article 8.8.
9.8 If the Buyer invokes guarantee, this request shall be accompanied by detailed information and detailed photographs of the Item or the (defective) part of the Item. The User is also free to engage a third party to assess and settle a guarantee claim.
9.9 In the event of an unjustified guarantee claim, the User is allowed to charge the Buyer for the costs incurred as a result.
9.10 The guarantee referred to in Articles 9.1 to 9.3 is strictly limited to repair of the defect or replacement of the defective part of the Item. To the extent permitted by law, the User expressly rejects any liability for costs or damages in respect of vehicle or product downtime, replacement costs and loss of profit.
9.11 If the Item is transported to another location for the purpose of guarantee services, all transport costs and the related risks shall be borne by the Buyer. The User shall not be liable for loss of or damage to the Item. The Buyer shall adequately insure the Item at his own expense against loss and damage and at replacement value.
9.12 The guarantee referred to in paragraphs 1 to 3 of this article does not apply, in addition to what is already stipulated above in this article 9, in case of:
- defects that are the result of negligent handling not carried out by or on behalf of the User and/or defects that are the result of exposing the Item to extreme conditions or that are the result of construction errors in the Item not made by or on behalf of User;
- defects that are the result of inexpert use of goods, not being (original parts of) the Item, which were made available by the Buyer to the User or which were caused by the use of goods not made available by the User or which were caused by the use of goods of third parties;
- defects resulting from normal use;
- variations in colour of the Item not noticeable in the daylight with the naked eye;
- damage to the Item caused by:
- external influences;
- parts not installed by the User or not processed by the User;
- defects to the Item which have occurred because the User has not carried out further treatment due to actions or in accordance with the Buyer’s instructions while this further treatment was professionally required and while the Buyer was informed thereof in writing by the User no later than at the time of delivery of the Item;
- any consequential damages as referred to in Article 10.3 of these general terms and conditions;
- the following activities: washing, cleaning, polishing, applying wax coats and carrying out paint sealing;
- emergency repairs, including: making the Item ready for use on a temporary basis;
- defects and/or complaints resulting from failure to carry out necessary prescribed periodic maintenance;
Loss of guarantee
9.13 Any warranty claims as referred to in this paragraph 1 to 3 of this article shall lapse:
- if the Buyer fails to present the Item for assessment/control within the periodic time period set by the User in writing;
- if in the event of visible defects, the Buyer fails to submit a written claim with a clear description of the complaints to the User within one (1) month after delivery, or within one (1) month after discovering a visible defect;
- if in the event of defects not externally visible, the Buyer fails to submit its claims in writing and with a clear description of the complaints within fourteen (14) days after discovering these defects;
- in the event of defects related to electronic failures that are not reported to the User in writing and with a clear description of the complaints within one (1) month after delivery of the Item;
- if the Buyer does not give the User the opportunity, within a period of fourteen (14) days after the complaint was made known, to assess (or have it assessed) and/or remedy the defect;
- if the Buyer has carried out and/or instructed third parties to carry out work on the Item, without the User’s consent,
- unless the Buyer can prove the necessity of carrying out this work immediately.
- if the Buyer loses ownership of the Item. The guarantee shall never be transferred to a legal successor of the Buyer. The
guarantee shall also never be transferred in the event of resale of the Item.
Article 10. Liability
10.1 The User’s liability for any damage to the Item and/or goods of the Buyer, as a result of any Service and/or Item delivered by the User, is limited to a maximum of the amount paid by the Buyer to the User for the (part) of the Item and/or Service that caused the damage. If for any reason whatsoever the aforementioned is deviated from, the User’s liability for any damage to the Item and/or goods of the Buyer, as a result of the Service and/or Item delivered, shall in any case be limited to the amount paid out in such cases by his liability insurance company.
10.2 The User shall not be liable for any theft or loss of goods belonging to the Buyer and/or to third parties which are in or on the Item and which the User on whatever account has in its possession. Goods belonging to the Buyer are also understood to include cargo, inventory and written documents and negotiable instruments.
10.3 The User shall never be liable for any indirect damage, including but not restricted to consequential damage, loss of profit or any other damage resulting from or relating to the failure to meet the (non-fatal) deadlines as referred to in Article 8 of these general terms and conditions and the early termination of introductory negotiations.
10.4 The User’s liability restrictions set out in this Article shall not apply in so far as this is contrary to applicable mandatory law or in so far as the damage causing event was deliberate or attributable to the intentional recklessness of the User or its highest executive staff.
10.5 The Buyer indemnifies the User against and compensates the User for all claims by third parties directly or indirectly related to the execution of the agreement and all related financial consequences.
Article 11. Force majeure
11.1 A User’s default shall not be attributable if he is in a situation of force majeure.
11.2 Force majeure is understood to mean: any failure not attributable to the User since it cannot be attributed to his fault, neither by law, legal action or according to socially accepted notions. Force majeure is also understood to include the following, anywhere in the world:
- Interruption of operations of whatever nature, regardless of the manner in which it arose;
- Delayed or overdue supply by one or more of User’s suppliers;
- Transport difficulties or restrictions of whatever kind, hindering or restricting the transport to the User or from the User to the Buyer;
- War (threat), riots, sabotage, floods, fire, pandemics, epidemics, lockouts, plant occupation, strikes and new government measures;
- That the User is unable to carry out its services due to the (an attributable) fault or carelessness by a third party.
11.3 In the event of force majeure, after 3 weeks after a circumstance has arisen that leads to the force majeure, the User
shall be entitled at his own discretion, to change the term of delivery or to dissolve the contract out of court, without
becoming liable to pay any damages. For this purpose, a written notification is sufficient.
11.4 Following the dissolution of the agreement, the User is entitled to compensation for the costs already incurred and/or
work/Services already carried out by him, unless the agreement or these general terms and conditions provide otherwise. The Buyer is not entitled to reimbursement of amounts already paid.
Article 12. Drawings and other documents / intellectual property
12.1 Unless otherwise agreed in writing, the User remains the exclusive holder of all intellectual property rights (including copyright, trademark right, design right and patent right) to goods, designs, sketches, drawings, images, illustrations, instructions for use, software and the like delivered and/or made by him. Nothing in these general terms and conditions may indicate a transfer of any right of intellectual property from the User to the Buyer.
12.2 The rights to the data and/or documents mentioned in paragraph 1 of this article remain the User’s property regardless of whether the Buyer has been charged for their creation. These data and/or documents may not be copied, used or disclosed to third parties without the User’s prior explicit written consent. The Buyer owes the User an immediately claimable fine of € 50,000 for each violation of this provision. This penalty can be claimed in addition to compensation under the law.
12.3 The Buyer is obliged to return the information and/or documents supplied to him as referred to in paragraph 1 of this article at first request within a period set by the User. If this provision is violated, the Buyer owes the User an immediately payable fine of € 1,000 per day. This penalty can be claimed in addition to compensation under the law.
12.4 Unless the User and the Buyer expressly agree otherwise, the User is permitted to use (company) names, trademarks and logos of the Buyer on the Item and/or for marketing, advertising and promotional purposes.
Article 13. Advice and information provided
13.1 The Buyer cannot derive any rights from advice and information received from the User if it does not relate to the Item or Service.
13.2 If the Buyer provides the User with data, drawings and the like, the User may assume their accuracy and completeness when executing the agreement.
13.3 The Buyer indemnifies the User against any claim from third parties regarding the use of advice, drawings, calculations, designs, materials, samples, models and the like provided by or on behalf of the Buyer.
Article 14. Dissolution
14.1 Dissolution of the agreement shall take place by means of a written declaration of the person authorised to do this. Before a written dissolution statement is addressed to a party, the party shall, unless otherwise stipulated, at all times give written notice of default to the other party and set a reasonable term of thirty (30) days to meet its obligations or to repair any failures whereby the failures must be accurately described in writing.
14.2 If the Buyer does not, not timely, not fully or not properly fulfil any payment obligation resulting from any agreement with the User and as set out in these general terms and conditions, the User shall be entitled to dissolve the agreement in full or in part immediately without notice of default being required and without judicial intervention.
14.3 In the event of dissolution of the agreement by the User, the User shall be entitled to claim payment of the entire price agreed, without prejudice to the right to compensation of any damage suffered by the User and/or lost profit as a result of the dissolution of the agreement.
Article 15. Retention of title and right of retention
15.1 All goods (and Items) (yet to be) delivered within the framework of a specific agreement shall remain the exclusive property of the User until any and all current and future claims that the User has against the Buyer under the agreement – or any other similar agreements – have been settled in full.
15.2 Until such time as the Buyer has settled all due amounts within the framework of a specific agreement (and/or any other similar agreement), the User may retain possession of the Buyer’s goods (and Items) in question and recover his claim from it on a priority basis, unless the Buyer puts up sufficient security to pay these amounts.
15.3 In the event the User processes the goods (or Items) referred to in paragraph 1 of this Article by means of (auxiliary) goods supplied by or on behalf of User, the processed goods (main goods in the sense defined in article 3:4 of the Dutch Civil Code) shall be deemed to have been provided by the Buyer to the User as a possessory pledge.
15.4 If work and/or Services have been carried out, the Buyer is obliged to store the Items it has received and/or made available to him under retention of title with due care and as the User’s recognisable property. The Buyer shall adequately insure the delivered goods and/or Items at its own expense against loss and damage and at replacement value.
15.5 The Buyer is not permitted to encumber Items still subject to retention of title delivered, processed and/or treated by the User beyond the constraints involved in the normal conduct of business. Also, Items subject to retention of title may not be transferred, disposed of, leased or given in exchange, consignment or security to a third party.
15.6 If for some reason it is not possible or advisable to establish a possessory pledge, the Buyer is obliged to pledge Items that have been or are yet to be delivered, to the User by means of an authentic or registered private instrument.
15.7 If Items subject to retention of title are processed, combined and mixed by the Buyer with other products insofar as they cannot be separated, the User shall have joint ownership with the Buyer of the resulting product in proportion to the amount of the invoiced value of the Items subject to retention of title.
Article 16. Processing of personal data
16.1 The User treats the Buyer’s privacy with care, acting in accordance with the provisions set out in the General Data Protection Regulation (GDPR). Personal data may be processed at:
- preparing offers;
- conducting correspondence during and after the agreement;
- using vehicle data for the purpose of the agreement;
- financial settlements arising from or relating to the agreement;
- handling a guarantee claim and a dispute;
- other actions arising directly from the agreement.
Article 17. Applicable law
17.1 Dutch law shall apply exclusively to these general terms and conditions and to offers and agreements to which these general terms and conditions apply in part or in full, as well as to disputes which result from these general terms and conditions or which relate thereto.
17.2 The application of the UN Convention on the International Sales of Goods (CISG) is expressly excluded.
17.3 Disputes related to or arising from these general terms and conditions shall be settled by the competent court in The Hague. However, the User is also allowed to choose the competent court in the Buyer’s place of residence to submit a dispute there.
Zoetermeer, 1 September 2022