General terms and conditions

1. Validity

These general terms and conditions apply to quotations and agreements concerning the sale and delivery of goods and the provision of services by Diasoft BV, hereinafter referred to as Diasoft.

Deviations or additions will only apply if these have been expressly accepted in writing by Diasoft.

2. Conclusion and Scope

Unless an explicit validity period has been indicated, a quotation of Diasoft will be without any obligation and a binding agreement will only be concluded after written confirmation by Diasoft.

This confirmation must indicate that the buyer accepts the applicability of these general delivery and payment conditions and that it will waive the applicability of its own purchase conditions.

The brochures, price lists, and all associated provided (technical) details belonging to a quotation in the form of samples, images, drawings, dimensions, weights and the like are estimates unless Diasoft has expressly declared that these can be considered a precise indication. All provided quotations, drawings, diagrams, designs, material lists and the like, as well as any software provided by it, will remain the property of Diasoft. Without the prior written permission of Diasoft, the client is expressly prohibited from copying such information and/or disclosing it to third parties in any manner and/or allowing it to be used by third parties and/or reselling it. The information may only be used by the client for the purpose for which it has been provided by Diasoft and must, if the contract is not granted to Diasoft, immediately be returned, including any copies thereof.

Diasoft entitled to charge the costs incurred to submit the quotation to the other party if no agreement is concluded.

3. Prices

Each quotation is non-binding unless there is a binding offer period.

All prices indicated by Diasoft are exclusive of turnover tax and/or other charges payable in relation to the agreement. These will be charged separately. The price for goods to be delivered applies excluding the services to be carried out and will be free to the place of delivery.

If between the moment of the order confirmation and the delivery of the goods the purchase price or one of the cost price components on which Diasoft has based its sales price is increased, Diasoft has the right to charge this increase on to the buyer. Without prejudice to the general applicability of this rule, it particularly applies to changes in import levies and other levies and taxes that take effect after the order confirmation has been sent and to changes in the exchange rate of the Dutch currency in relation to the foreign currency in which the company has purchased the goods.

4. Credit standing of the buyer

All sale and purchase agreement will be concluded under the condition precedent that Diasoft is satisfied that the credit standing of the buyer is acceptable.

Diasoft has the right to demand security from the buyer for the proper fulfilment of its obligations. Diasoft may require a lien on the sold goods by means of a registered private instrument. If the buyer fails to fulfil its obligations towards Diasoft or has reasons to fear that these obligations will not be fulfilled, Diasoft is entitled to claim the control of the movable property.

Before the full payment has been made, the buyer is not authorised to make use of the delivered goods in any other way than in accordance with its normal business operations and the normal purpose of the goods. They may therefore never be pledged or transferred to others as a security in the form of a pledge or as a payment until the buyer has met all its obligations towards Diasoft.

If the buyer fails to fulfil any obligation towards Diasoft at the moment the agreement is terminated for whatever reason, Diasoft will have the right to retrieve all goods that have been pledged without any notice or judicial intervention being required and if necessary disassemble the goods if they have been attached to other movable or immovable properties, while the buyer will be required to fully cooperate, as well as to return the goods to Diasoft at no cost and at the first request in their original packaging and in an undamaged state, all this without prejudice to the right of Diasoft to claim compensation under these conditions and the law.

5. Transfer of ownership and risk

1.Subject to the provisions of paragraphs 2 and 4, the ownership and the risk of the goods will transfer to the buyer upon delivery.
2.As long as the buyer has not yet paid the full amount of the purchase price and any additional costs or has failed to provide security for this, the seller will retain the ownership of the goods. If this is the case, the ownership will transfer to the buyer once it has met all its obligations towards the seller.

3.If there is reasonable doubt about the payment capacity of the buyer, the seller is authorised to suspend the delivery of the goods under Article 4(2) until the buyer has provided security for the payment. The buyer is liable for any damage incurred by the seller due to this delayed delivery.

4. If the seller delays the delivery at the request of the buyer in accordance with the provisions of Article 5, the goods will remain the property of the seller and be at its risk until the goods have been delivered to the buyer at the location(s) referred to in Article 4(2).

6. Payments

1. The purchase price includes, except for the price of the goods, the costs of the packaging, the transport and the delivery costs to the location designated by the buyer in The Netherlands.

2. Payments must be made within thirty calendar days after the invoice date. The buyer is not authorised to deduct any amount from this purchase price based on a counterclaim.

3. If Diasoft has reasons to doubt the fulfilment of the payment obligations by the client, for example in case of suspension of payments, bankruptcy, attachment, business interruption, dissolution, previous late payment etc., it can demand full and cash payment in advance or upon delivery.

4. The costs related to the payment will be borne by the client. In case of late payment, the client will owe interest on the unpaid part without notice being required. The interest rate will be equal to the then applicable promissory note discount rate of De Nederlandsche Bank plus two. Interest will also be owed on outstanding unpaid interest after one year. Any costs incurred by Diasoft in relation to the collection and/or determination and/or the safeguarding of rights, including in relation to legal proceedings, will be borne by the client with a minimum of 15% of the invoice amount. In case of late payment, including the failure to pay the claim set out in the second paragraph of this article, Diasoft is entitled to suspend the performance of the agreement until the full payment has been received and, in case of incomplete payment after written summons, to terminate the agreement in whole or in part. This will not affect its right to compensation.

7. Delivery period

The delivery period will start on the day the agreement is concluded or, when advance payment has been agreed on, on the day of receipt of the entire advance payment and will be considered a target period. Diasoft will only have exceeded a period if it has failed to (fully) fulfil its obligations towards the client after having received written notice from the client stating a reasonable period for fulfilment. Cablon Medical is entitled to make partial deliveries.

Goods will be considered delivered in case of:

– delivery without placement or assembly: upon arrival at the agreed place of delivery,
– delivery with placement, assembly and/or putting into service: after these activities have been carried out.

Services outside of the scope of the delivery of goods will be considered complete after performance of the work.

The client is required to accept the goods. Failures including the unavailability of promised documentation that seriously impede the use of the delivered goods or the performed services are no grounds for reliance on the late delivery of goods or performance of services, or for refusing the receipt and payment. This does not affect the right of the client to have the failure resolved as soon as possible.

If Diasoft cannot meet the agreed delivery period due to circumstances that cannot be attributed to it, this period will be extended with as many days as needed to resolve the occurred delay in the performance of the agreement. Additional costs and price increases in relation to and occurring during the delay may be charged to the client by Diasoft. If the Client does not allow Diasoft to (continue to) perform the agreement after written summons due to circumstances attributable to the client, Diasoft is authorised to terminate the agreement in whole or in part without prejudice to its right to compensation.

8. Force majeure

Force majeure exists if an unforeseeable circumstance or situation occurs which obstructs, severely impedes or prevents the fulfilment of one or more obligations set out in the agreed conditions that are beyond the control and actions of the parties or their subcontractors, vendors, consultants etc. Force majeure exists in any case if the fulfilment of one or more obligations set out in the agreed conditions is obstructed, severely impeded or prevented because the parties or their subcontractors, vendors, consultants and the like have been affected by circumstances such as a natural disaster, severe fire,

(nuclear) explosion, release of toxic or hazardous substances or gases, a mobilisation, war, riots, strike, occupation or boycott or any (foreign) government measure such as an import, export, delivery or production ban. In case of temporary force majeure, i.e. a situation of force majeure lasting 180 more or less contiguous calendar days or less, the mutual obligations of the corresponding part of the agreement affected by force majeure will be suspended. In case of permanent force majeure, which will also exist if it is clear that a force majeure situation will last longer than 180 more or less contiguous calendar days, the parties will consult about adjusting the agreement to ensure that further performance is useful to both parties. If there is no room for such adjustments, each of the parties will have the right to declare the agreement terminated to the extent affected by force majeure, as a result of which the mutual obligations of the terminated part of the agreement will retroactively expire.

9. Liability for shortcomings and damage

A shortcoming of which the client demonstrates that it is the result of a cause related to the completion or delivery of work and that can be attributed to Diasoft and/or the lack of an attribute specifically promised by Diasoft will be resolved by Diasoft free of charge by means of repairs, replacement and/or reimplementation, at its discretion, provided that the shortcoming has been reported to Diasoft in writing within twelve months after the transfer of the risk of the good or the completion of the work, or within fourteen days after the client could have reasonably discovered the shortcoming.

The duty to resolve shortcomings will expire if additions and or changes have been made to the goods or errors have been resolved by third parties without the prior written permission of Diasoft, if consumables have been used that do not meet the specifications indicated by Diasoft, or if Diasoft is not timely and/or sufficiently given the opportunity to carry out repairs or maintenance. Diasoft has the right to resolve shortcomings.

Diasoft may demand that the goods are shipped to its address, or to an address to be stated by it, at no additional cost, or that a maintenance contract is granted for regular maintenance. Replaced components and goods will become its property. The additional costs resulting from repairs to goods located abroad will be borne by the client. There will be a renewed repair obligation of three months for repairs. This repair duty will at least last until the end of the original period of twelve months.

Diasoft will accept the liability for damage incurred by the client within the aforementioned twelve-month period due to a faulty performance of an agreement attributable to Diasoft which does not concern loss of profits, loss of production, costs of stagnation, fines or discounts and the like up to the amount of the invoice amount for each incident. Without prejudice to the provisions of Article 5, any further or other liability for damage on whatever grounds is excluded.

If third parties are involved in the implementation of the agreement that are part of the Diasoft , they can put forward the same defences against any claims of the client as Diasoft based on these conditions. No higher compensation can be claimed from Diasoft and the listed third parties together than can be claimed from Diasoft alone.

10. Miscellaneous

Special conditions may apply in case of contracts for the delivery and/or creation of software or placement, assembly, revision and/or repairs.

If Diasoft delivers goods that are covered by the US Export Administration Act, a client is required to observe the provisions applicable to it.

If any provision of an agreement has no legal effect, the other provisions will remain in full force and effect unless maintaining the agreement is manifestly unreasonable.

11. Warranty/service

1. With due observance of the provisions of these conditions, the vendor guarantees the soundness of the materials used and the promised attributes and the associated correct operation. This guarantee applies to new products for a period of 12 months after delivery (including any “trial period”) unless agreed otherwise. A warranty on goods purchased from other vendors is only provided if and to the extent granted by the original manufacturer(s).

2. Defects in delivered goods covered by the warranty will be repaired or replaced by a new delivery, such at the discretion of the vendor/manufacturer, if the defects are due to construction defects, materials used or the implementation due to which they are unusable for the destination of the goods.

3. Goods that are eligible for work carried out under warranty must be shipped to the vendor at no cost.
If the vendor must carry out work under the warranty outside of its own company, the vendor is entitled to charge the travel and accommodation expenses to the other party, as well as any (special) transport costs and the costs of test equipment to be used.
Work under the warranty will in principle be performed at the company of the vendor (service department) during normal working hours. Work under the warranty will only be performed outside the normal working hours if a separate service contract has been concluded. If it turns out that the goods offered for repairs under the warranty do not have any defects, all incurred costs will be for the account of the other party, even during the warranty period.

4. All warranty claims will expire if the other party has modified or repaired the delivered goods itself or has engaged a third party to do this, or fails to use them in accordance with the provided (factory) conditions or uses them improperly and/or for any other purposes than the original destination.

5. These warranty conditions do not apply to consumables. If the other party fails to fulfil any of its obligations, the vendor will be relieved of its warranty obligations. Compliance with the warranty obligations will be considered sole and complete compensation.

12. Retention

1. The vendor has the right of retention on all goods that are in the possession of the vendor on behalf of the other party, regardless of the cause, as long as the other party has not met all of its obligations towards the vendor.

2. The vendor is held to keep these goods in accordance with sound business practices without the other party having any right to compensation in case of loss, partial loss and/or damage not attributable to the vendor. The risk of the goods will therefore remain with the other party.

13. Liability

1. Except for provisions of imperative law concerning (product) liability, as well as the legal rules of public order and good faith, the vendor is not held to pay any compensation of any kind for any damage, direct or indirect, including trading loss, damage to any movable or immovable property or to persons, both with the other party and third parties. Taking into account the other provisions of this article, the vendor will not be liable for any damage caused by:

2. improper use of the delivered goods or use for any other purposes than for which it is suitable based on objective standards;

3. careless behaviour of the other party, its staff or other persons engaged by it;

4. violation of patents, licences and/or other intellectual property rights of third parties as a result of the use of information provided by or on behalf of the other party such as drawings, models, designs and suchlike.

5. If the vendor provides assistance to the assembly and/or the putting into service without this being set out in the contract, this will be for the risk of the other party.

6. The vendor will only be liable for avoidable and/or foreseeable shortcomings with respect to provided advice up to the amount equal to the charged advice fees.

7. The liability of the vendor will also be assessed based on any product/company loss insurances of the vendor. Subject to the coverage thereof, the liability will at all times be limited to the net invoice value of the delivered goods.

8. Fulfilling the applicable warranty/complaint obligations and/or paying the determined damage by the vendor or its insurance companies will be considered the sole and complete compensation. The other party expressly and fully indemnifies the other party in all other respects.

14. Complaints

1. Any complaints will only be handled if they have been received in writing within 8 days of delivery.
Complaints based on hidden defects must be made during the warranty period. Complaints must include a precise indication of the nature and the cause of the complaints. Complaints concerning externally observable defects must be made immediately on the test/inspection date in the factory of the vendor or, if no test/inspection takes place, within the indicated period.

2. Complaints about invoices must also be submitted in writing within 8 days after the invoices have been submitted.

3. After the expiry of this period, the other party is considered to have approved the product or the invoice. Complains will then no longer be accepted by the vendor.

4. If the complaint is considered to be valid by the vendor, the vendor is only authorised to replace/repair the defective goods, without the other party being entitled to any form of compensation whatsoever.

5. Submitting a complaint does never release the other party from its payment obligations towards the vendor.

6. Returning the delivered goods for whatever reason can only take place after prior express written permission and shipping instructions of the vendor.

15. Termination

1. Without prejudice to the provisions of Article 5, the purchase agreement will be terminated without judicial intervention after a written request on the moment the buyer is declared bankrupt, requests provisional suspension of payments, attachment is levied, the buyer is placed under receivership or otherwise loses the power of disposition of his assets or parts thereof, unless the administrator or receiver acknowledges the obligations arising from this purchase agreement as an estate debt.

2. Any mutual claims will become immediately due and payable following the termination. The buyer will be liable for any damage suffered by the seller, including loss of profit and transport costs.

16. Applicable law, disputes, expiration

Agreements between Diasoft and the client are governed by Dutch law.
Any legal claims of the client against Diasoft will expire twelve months after they arise. Claims will arise at the moment the event resulting in damage occurs.