Effective from and last updated on: 15 July 2021
PART A – GENERAL
In these general sales conditions the following terms, written with a capital letter, are defined as stated below:
|‘Agreement’||every agreement, including framework agreements, Orders and agreements arising from these that are concluded between Medstone and the Client;|
|‘Article/Articles’||a provision/provisions in these Conditions;|
|‘Client’||a Party who places Orders and/or to whom Medstone sells Products and/or provides Services to, including resellers;|
|‘Conditions’||these general sales and delivery conditions of Medstone in respect of the sale and/or delivery of Products and/or Services;|
|‘Consumer’||a Client who exclusively acts as a natural person for purposes outside of a profession or business;|
|‘Data Subject/Data Subjects’||a natural person/natural persons in respect of whom Personal Data is processed;|
|‘DCC’||Dutch Civil Code;|
|‘GDP Guidelines’||the European Good Distribution Practice Guidelines in respect of the correct distribution of medicines and related products;|
|‘Instructions for Use’||the written instructions provided by Medstone to the Client in respect of the appropriate use of the Products;|
|‘Medical Aids’||all goods offered by Medstone that are intended to be used to detect, treat, alleviate or prevent illnesses;|
|‘Medicine/Medicines’||all medicines offered by Medstone;|
|‘Medstone’||Medstone Holding B.V. and/or one or more of its group companies in pursuance of article 2:24b of the DCC, including but not restricted to Fresco Farma B.V., Medstone Platform B.V. and Medstone Science B.V.;|
|‘Order/Orders’||an order or commission placed by the Client in writing for the purchase and/or supply of Products and/or Services;|
|‘Party/Parties’||Medstone or the Client, or Medstone and the Client;|
|‘Personal Data’||all information concerning identified or designated natural persons (i.e. Data Subjects);|
|‘Personnel’||employees of a Party or of its group companies;|
|‘Privacy Statement’||the statement that can be consulted on the Medstone website – https://medstone.nl/privacy-beleid – in respect of the processing of Personal Data;|
|‘Product/Products’||all goods offered by Medstone, including but not restricted to Medicines and Medical Aids;|
|‘Service/Services’||all services provided by Medstone or a Third Party to the Client that are related to the Agreement;|
|‘Third Party/Third Parties’||natural persons or legal entities engaged by or on behalf of a Party in the context of the partial or full implementation of an Agreement, other than that Party or Parties, or their personnel, themselves;|
|‘Working Days’||Monday to Friday, with the exception of official national public holidays in the Netherlands.|
- These Conditions are divided into parts A to C:
- part A is applicable at all times;
- part B is applicable in addition to part A if Medstone supplies Products to the Client; and
- part C is applicable in addition to part A (and part B if applicable) if Medstone (also) provides Services to the Client.
- If a provision of a particular applicable part is inconsistent with a provision of another applicable part, then the following order applies: B, C, A (insofar as applicable).
- The Conditions are applicable to every offer of Medstone and to every Agreement that is concluded, and to all other legal and other actions between Medstone and the Client.
- The general terms and conditions employed by the Client, under any designation whatsoever, are inapplicable and are hereby expressly excluded by Medstone.
- In these Conditions ‘in writing’ should also be understood as by email, unless agreed otherwise.
- Medstone reserves the right to amend these Conditions from time to time.
- Deviations from these Conditions are only valid if and insofar as they are expressly confirmed by Medstone in writing.
- The Client guarantees that he will act in accordance with all applicable legislation and regulations, and that he is in possession of all necessary permits in the context of the implementation of the Agreement.
- The details in connection with the identity of Medstone that are relevant for the Consumer are as follows:
- The contact details as shown in Article 1.9 are also applicable for Clients who are not acting in the capacity of a Consumer, unless agreed otherwise.
- ESTABLISHMENT OF AGREEMENTS
- All price offers and other offers of Medstone are always free of obligation and can be revoked or amended by Medstone at any time.
- An Agreement is established when the Client has placed an Order with Medstone and Medstone has accepted this in writing.
- Except in the event that the Client is a Consumer, Medstone is free at all times to refuse Orders and/or follow-up commissions of the Client on reasonable grounds, without the Client being able to assert any claim for compensation against Medstone in this respect.
- IMPLEMENTATION OF THE AGREEMENT
- An agreed or specified period for the implementation of the Agreement applies as a target period, and never as a strict deadline. Any exceedance of a period therefore does not constitute default on the part of Medstone, and so cannot lead to any liability for damages on the part of Medstone. The Agreement cannot be terminated due to the exceedance of a period, except in case of force majeure and insofar as is further described in Article 6, unless Medstone does not implement the Agreement after the end of a reasonable period specified by the Client in writing.
- Medstone is not obliged to proceed with delivery until the time at which Medstone has received the necessary information from the Client in order to be able to supply the Products and/or the Services.
- Unless agreed otherwise in writing, the prices stated by or agreed with Medstone are net, in Euros, and therefore, among other things, exclusive of VAT (insofar as applicable) and transport costs, and also, unless stated otherwise, exclusive of import and export duties, excise duties and other taxes or levies. For Consumers, the prices stated by or agreed with Medstone are in Euros and inclusive of VAT (insofar as applicable), but exclusive of any transport costs, and also, unless stated otherwise, exclusive of import and export duties, excise duties and other taxes or levies. Relevant costs will be explicitly stated if applicable.
- An increase in legal price-determining factors, including an increase in taxes, excise duties, import duties or other government levies, will always be passed on automatically. If Medstone passes on a price increase to a Client acting in the capacity of a Consumer, then the Client is authorised to terminate the Agreement after such a price increase.
- Medstone reserves the right to correct the prices stated by it in the event of errors, including printing and typing errors, or omissions. Medstone is not liable for any damage for the Client arising from such errors or omissions.
- Payments will be made in accordance with the payment method specified in the ordering process of the Products and/or the payment method specified by Medstone in respect of the Services to be provided.
- Medstone is entitled at any time to require that the Client, not being a Consumer, pay for the Products and/or the Services in advance. Insofar as advance payment is required, Medstone is not obliged to supply the Products and/or the Services until the time at which the payment is received by Medstone.
- Medstone is entitled to implement the Agreement in parts and, in connection with this, to issue partial invoices. Medstone is entitled at any time to require that the Client, not being a Consumer, fully or partially pays for every partial or full delivery of Products and/or partial provision of the services by means of advance payment or cash payment.
- Complaints do not suspend the payment period.
- In the event of late payment, the Client is in default by operation of law, and he is liable to pay the statutory commercial interest (as referred to in article 6:119a of the DCC) on the outstanding invoice amount with effect from the invoice date. If the Client does not make payment within the agreed period and is therefore in default, from that time all outstanding claims of Medstone upon the Client are immediately due and payable.
- The Client is obliged to pay in a timely manner all extrajudicial and judicial costs (including costs of legal assistance) that Medstone has had to incur in connection with the fact that the Client, without being entitled to do so, has failed to comply with its obligations properly and in good time, or if Medstone is ruled in favour of, fully or partially, in legal proceedings. This also applies insofar as the judicial costs are higher than the amount that is awarded by the court or if the Client can make use of a legal remedy against the ruling in question. The extrajudicial costs will amount to at least the amount that can be calculated according to the most recent graduated scale of Extrajudicial Collection Costs.
- On Medstone’s first request the Client will provide security, additional or otherwise, for compliance with his present or future payment obligations. Medstone is entitled to determine at its own discretion the form of security that must be provided by the Client. If the Client refuses to make the required payments as referred to in Article 5.1 and/or to provide additional or other security to Medstone’s satisfaction, then Medstone is entitled to suspend implementation of the Agreement, without prejudice to its legal rights of suspension.
- Payments of the Client first serve to reduce payable costs and interest (in that order) and then to reduce principal amounts, whereby older claims will take precedence over new ones.
- The Client is not authorised to offset its debt to Medstone against a claim that it has upon Medstone, unless Medstone has declared itself in agreement with an intended offset in writing.
- No right of suspension of his payment obligations accrues to the Client in respect of supplied Products and/or Services.
- Articles 5.4 to 5.10 are not applicable if the Client is a Consumer.
- FORCE MAJEURE
- In the event of force majeure on the part of Medstone, compliance with the Agreement will be fully or partly suspended for the duration of the period of force majeure, without the Parties being obliged to pay any mutual compensation in this respect. If the situation of force majeure can be reasonably expected to last for longer than 30 (thirty) calendar days, then both Medstone and the Client are entitled to fully or partially terminate the Agreement with immediate effect and without legal intervention, without any right to compensation thereby coming about. Force majeure on the part of Medstone will in any event be understood to mean circumstances in connection with persons, raw materials and/or materials that Medstone uses or tends to use in the implementation of the Agreement, which are of such a nature that due to the implementation of the Agreement is impossible or so onerous and/or disproportionately costly for Medstone that compliance with the Agreement can no longer or not immediately be required of Medstone, such as but not limited to:
- the circumstance that Medstone does not receive, or does not receive on time or properly, goods or services that are of importance in connection with the goods or services to be provided by Medstone itself;
- the outbreak of illnesses, including but not restricted to viruses;
- strikes, sit-ins, import and export restrictions and domestic and foreign government measures, including measures of supervisory bodies (such as the Healthcare Inspectorate, the Medicines Evaluation Board, the Customs Agency, transport supervisory bodies and similar agencies);
- fire, water damage, flood and extreme weather conditions;
- war and the threat of war, riot, wilful damage; and
- interruptions or malfunctions in power supplies and/or telecommunication facilities and similar supplies and facilities.
- In the event of force majeure on the part of a Party, this Party will inform the other Party of the situation of force majeure as soon as possible. At the other Party’s request, the Party will provide evidence of the event that has caused the force majeure.
- Articles 6.1 and 6.2 are not applicable if the Client is a Consumer.
- SUSPENSION AND TERMINATION
- Medstone is entitled to suspend the implementation of the Agreement in full or in part, or to terminate the Agreement in full or in part, by means of a written statement, without judicial intervention and with immediate effect, without Medstone being liable to pay any compensation, in the event of:
- a shortcoming by the Client in its compliance with one or more of its obligations under the terms of the Agreement and/or these Conditions;
- the granting of a provisional or permanent suspension of payment to, declaration of bankruptcy by, or a creditors’ offer by the Client; or
- withdrawal from one of the Parties of permits that are necessary for the implementation of the Agreement.
- All claims upon the Client that Medstone may have or acquire in the cases stated above in Article 7.1 will be payable immediately and in full.
- An appeal for termination of the Agreement by the Client must be made in writing, and the Client must clearly state the grounds for termination in this, and as far as possible supplement this with evidence, failing which Medstone is entitled to refuse the appeal for termination.
- With the exception of the provisions of Article 17, the Client may not cancel a placed Order after its acceptance by Medstone.
- LIABILITY FOR DAMAGE AND INDEMNIFICATION
- Medstone only accepts liability as the result of an infringement of the guarantees stated in Article 18.5 and provided by Medstone.
- Medstone is not liable for any damage on the part of the Client as the result of an attributable or other shortcoming on the part of Medstone in respect of any obligation in pursuance of the Agreement and/or the law, or any other direct or indirect action in connection with the Agreement, including but not restricted to any action that can be designated as unlawful within the meaning of article 6:162 of the DCC, unless the damage to the Client is directly connected with (i) Medical Aids sold and delivered by Medstone that do not conform to the specifications to which the Medical Aids must conform on the basis of the CE certification, and which Medstone should reasonably have identified on the basis of the documentation provided to it in accordance with the provisions of Article 18.5, (ii) actions on the part of Medstone in contravention of the applicable regulations as described in Article 18.5 in respect of Medicines, or (iii) any wilful misconduct or gross negligence of any of the management staff of Medstone.
- If and insofar as it is established in law that Medstone turns out to be liable for damage, for whatever reason, this liability is limited per claim or incidence to an amount equal to the invoice value, exclusive of turnover tax, of the Products and/or Services supplied by Medstone to which the liability relates, except insofar as the actual coverage of Medstone’s liability insurance allows more extensive liability. Any compensation is limited to the amount to be actually paid out under Medstone’s liability insurance, with the addition of the policy excess.
- A series of connected cases or incidences resulting in damage will constitute a single case or incidence.
- The Client, not being a Consumer, must notify Medstone of a shortcoming identified by him or damage suffered by him immediately after it has come about or become known. Any shortcomings or damage must thereby be reported by the Client to Medstone in writing no later than within 24 (twenty-four) hours of the receipt of the Products and/or Services in question, failing which the Client cannot invoke the shortcomings or instances of damage. A shortcoming or instance of damage that is not reported within this period is not eligible for compensation. In any event, all legal claims of the Client against Medstone expire after a period of one (1) year, to be counted from the day on which the relevant obligation arising from the Agreement became claimable or the event causing the damage took place.
- If the Client is a Consumer, the Client must notify Medstone of a shortcoming identified by him or damage suffered by him as soon as possible, but no later than within two (2) months of it having come about or become known. A shortcoming or instance of damage that is not reported within this period is not eligible for compensation. In any event, all legal claims of the Client against Medstone expire after a period of two (2) years, to be counted from the day on which the relevant obligation arising from the Agreement became claimable or the event causing the damage took place.
- The Client indemnifies Medstone against all claims, for whatever reason, of third parties in connection with the Products and/or Services supplied to the Client by Medstone, except insofar as the Client shows that a claim of a third party is in no way connected with any circumstance that lies within the Client’s sphere of risk.
- Apart from the Client’s own obligation to comply, and except for the case that the Client is a Consumer, the Client will arrange for adequate insurance, and will maintain this insurance at all times, in order to be able to fully comply with the Client’s indemnification obligations towards Medstone as referred to in Articles 8.7, 19.7 and 20.2. The Client will provide Medstone with information on its insurance policies on first request. If the insurance in question is cancelled, or the cover is not or is no longer sufficient, the Client will inform Medstone of this immediately.
- Medstone’s liability in respect of a Client who is a Consumer exceeds Medstone’s liability as described in this Article 8 if and only insofar as applicable imperative legislation so requires.
- INTELLECTUAL PROPERTY
- All intellectual property rights in respect of the Products and/or Services supplied by Medstone rest with Medstone and/or its suppliers.
- Unless expressly agreed otherwise by the Parties in writing, the Agreement does not include a transfer or licensing of any intellectual property rights in the context of the Products and/or Services supplied to the Client.
- The Client will comply with all of Medstone’s instructions in connection with the use of the intellectual property rights. Without Medstone’s prior written permission the Client is not permitted to use the intellectual property rights other than is strictly necessary in the context of (i) the use and/or the resale of the Products and (ii) the use of the Services.
- The Client will not register or attempt to register the intellectual property rights in connection with the Products and/or Services.
- In the event of the infringement of the provisions of Articles 9.3 and/or 9.4 in connection with the Products, the Client, not being a Consumer, will forfeit an immediately payable penalty, which is not eligible for offset, of €50,000, with the addition of €1,000 per infringement per day or part of a day that the infringement continues, without prejudice to Medstone’s other rights.
- In the event of the infringement of the provisions of Articles 9.3 and/or 9.4 in connection with the Services, the Client, not being a Consumer, will forfeit an immediately payable penalty, which is not eligible for offset, of €250,000, with the addition of €5,000 per infringement per day or part of a day that the infringement continues, without prejudice to Medstone’s other rights.
- The amount of the penalty in question will be paid immediately, without costs, on Medstone’s first request. The provisions of this Article 9 remain in force until two (2) years after the expiry of the Agreement.
- CONTRACT TAKEOVER
- The Client hereby grants Medstone prior permission to wholly or partly transfer the Agreement and the rights and obligations arising from it to a third party or third parties by means of a contract takeover as referred to in article 6:159 of the DCC and/or the fulfilment of the obligations that arise for Medstone from the Agreement.
- The Client is not permitted to wholly or partly transfer the rights and obligations and/or the fulfilment of its obligations arising from the Agreement and these Conditions to third parties without Medstone’s prior written permission.
- INVALIDITY OF ONE OR MORE PROVISIONS
- The invalidity of a provision of the Agreement and/or of these Conditions has no consequences for the validity of the other provisions of the Agreement and of these Conditions.
- If one or more provisions of the Agreement and/or of these Conditions are invalid, or are unacceptable under the given circumstances according to standards of reasonableness and fairness, a provision that is acceptable, taking all circumstances into account, will apply between the Parties.
- If Medstone has permitted deviations from these Conditions for a shorter or longer period, this does not affect Medstone’s right to demand immediate and strict compliance with these Conditions. The Client cannot derive any rights from the fact that Medstone has applied the Conditions flexibly.
- The Client acknowledges that he has taken cognizance of the Privacy Statement – https://medstone.nl/privacy-beleid – and the processing of Personal Data by Medstone described in it.
- Medstone processes Personal Data of its Clients, including data on the Client’s activities on Medstone’s website, such as pages visited, the Client’s email address and all information that the Client voluntarily provides during registration on Medstone’s website, for the purposes described in the Privacy Statement.
- The Personal Data will not be shared with third parties by Medstone, other than as specified in the Privacy Statement, and will only be used for bringing about and implementing the Agreement and for the secure and rapid processing of placed Orders.
- Without prejudice to other rights in pursuance of applicable legislation, the Client is entitled if so wished to inspect the Personal Data on him that Medstone has collected, and to correct this or have this corrected. The Client is entitled to request Medstone to protect, improve or delete the data that is eligible for this. Medstone will disclose the Personal Data that it processes and whether Medstone can comply with the request for protection, improvement or deletion no later than within four (4) weeks.
- CHOICE OF LAW AND FORUM
- The legal relationship between Medstone and the Client is exclusively governed by the laws of the Netherlands, with the exclusion of the Vienna Sales Convention.
- All disputes between the Client and Medstone will be settled by the court of competent jurisdiction in Amsterdam. If Medstone is acting as plaintiff, then in deviation from the above it is entitled to bring the dispute before the court in the Client’s domicile or place of business.
- If the Client is a Consumer, then in deviation from Article 13.2 all disputes will be settled by the court of competent jurisdiction in the Client’s domicile. The Client is also entitled to bring the disputes before the court of competent jurisdiction in Amsterdam.
PART B – PROVISIONS FOR THE SALE AND DELIVERY OF PRODUCTS
- PACKAGING AND PRICES OF PRODUCTS
- Insofar as the Products are packaged, the manner of packaging will be determined by Medstone, whereby Medstone, insofar as applicable, will comply with the specific packaging requirements in pursuance of imperative legislation and regulations.
- Unless expressly agreed otherwise in writing, the prices of the Products are Ex Works (Incoterms 2020). ‘Ex Works’ means at the address of one of Medstone’s storage facilities as further specified in the order confirmation.
- DELIVERY AND TRANSFER OF RISK
- The manner and the time of delivery take place in accordance with agreements made between the Parties in writing. If there are no written agreements between the Parties concerning the delivery, delivery Ex Works (Incoterms 2020) applies as the time of delivery.
- If the Client is a Consumer, then this Article 15.2 applies instead of the provisions of Article 15.1. The time that the Client, or a third party designated by the Client, has received the Products applies as the time of delivery and the time at which the risk is transferred.
- In respect of the number of Products to be delivered, the number registered by Medstone is binding. The Products will be delivered on the basis of the details as provided by the Client on the placement of the Order. The Client guarantees that these details, such as his name, address, contact person etc., are correct. In the event of a change in these details the Client will inform Medstone of this immediately in writing.
- In the event that the Client, for whatever reason, does not take possession of (in Dutch: afnemen) of the Products, or does not do so in a timely manner, then all reasonable costs incurred by Medstone in this connection, including any costs of transport, safekeeping and storage, will be at the Client’s expense.
- Medstone is entitled to implement the Agreement in parts, in the sense that Medstone delivers the Products to the Client to the extent that the Products are in stock. Products that are not in stock, and which have been paid for in advance, will be refunded if applicable.
- RETENTION OF TITLE
- All Products supplied by Medstone in the context of the Agreement remain the property of Medstone until the Client has fully met all his payment obligations towards Medstone.
- Products supplied by Medstone to the Client that fall under the retention of title in accordance with Article 16.1 may only be sold on by the Client in the context of the normal course of the Client’s business.
- The Client is obliged to store the Products supplied under retention of title carefully, separated from other products and as the recognizable property of Medstone. The Client undertakes to Medstone to insure the Products, and to keep them insured, against fire and water damage and theft, and to allow Medstone to inspect the policy of this insurance on Medstone’s first request.
- In the event that Medstone wishes to exercise the rights of ownership stated in this Article 16, the Client hereby gives unconditional, irrevocable advance permission to Medstone and Third Parties to be designated by Medstone to enter all those places where the property of Medstone is located and to take back the Products.
- CONSUMERS’ RIGHT OF WITHDRAWAL
- This Article 17 is only applicable to Clients who have entered into an Agreement with Medstone in the capacity of a Consumer in connection with the supply of Products.
- The Client has the possibility to terminate the Agreement, without stating reasons, for fourteen (14) days after receipt of the Products by the Client.
- If the Client wishes to make use of the possibility described in Article 17.2, then he must contact Medstone by email via firstname.lastname@example.org in advance of the actual return, and state that he wishes to make use of the right of withdrawal, stating the order number, after which the further processing of the return will be decided on in consultation between Medstone and the Client. The Client will comply with all reasonable instructions of Medstone in connection with the return.
- The Products involved in the return must be returned to Medstone no later than within fourteen (14) days after Medstone is notified that an invocation of the right of withdrawal will be made.
- Returns take place at the Client’s risk and expense. The Client must be able to prove that the return has been offered in good time, for example by means of a tracking code.
- The Products must be returned to Medstone complete, in the original, unopened and undamaged packaging, in their original condition, without traces of use and without damage.
- Products that do not fall under the right of withdrawal under the law cannot be returned by the Client.
- If the Products are returned, Medstone will refund the purchase price of the Products, including any shipment costs charged to the Client, within a reasonable period, but no later than within fourteen (14) calendar days after the day on which the Client has returned the Products. Any shipment costs charged to the Client will not be refunded if the Client retains one or more Products from the Order.
- COMPLAINTS AND GUARANTEES – PRODUCTS
- Images, descriptions, designs, catalogues, advertising material and offers are not binding upon Medstone. All statements by Medstone regarding numbers, dimensions, weights or other indications are made with the greatest possible care. Medstone cannot however guarantee that no deviations will occur.
- The Client is obliged to inspect the Products (including packaging) immediately after these have been made available to him. Any shortcomings of or damage to the Products identified during this inspection, including but not restricted to broken seals and missing or defective safety features, must be reported in writing by the Client to Medstone within 24 (twenty-four) hours of the receipt of the Products in question, failing which the Client cannot invoke the shortcomings or damage.
- In the event that the Client is a Consumer, the Client must in any event notify Medstone of the shortcomings within two (2) months of the discovery of the shortcomings in question. If he fails to make a notification in writing in good time, the Client cannot invoke the shortcomings.
- A notification as referred to in this Article 18 must give a clear and precise description of the shortcoming invoked by the Client, whereby the notification must in any event include a description of the nature of the defect, photos of the defect and the possible cause of the defect. The notification must be made known to Medstone via the email address email@example.com. The submission of such a notification does not release the Client from his payment obligation, unless the Client is a Consumer.
- On the basis of the documentation provided to it, Medstone verifies that the Products that are qualified as Medical Aids comply with the specifications in accordance with the required CE certification. A guarantee with regard to Medical Aids is limited to the guarantee offered by the manufacturer. With regard to the Products that are qualified as Medicines, Medstone guarantees that it will act in accordance with the applicable GDP Guidelines and Directive 2011/62/EU (Falsified Medicinal Products Directive) insofar as the regulations in question are applicable. Other guarantees in respect of the Products, including but not limited to quality, conformity and/or intended effect of the Medicines are not provided by Medstone. The relevant provisions of Book 7, Title 1 of the DCC are not applicable insofar as they are not of an imperative legal nature.
- The guarantee provided by Medstone as described in Article 18.5 does not affect the legal rights and claims as referred to in articles 7:18, 7:19A, 7:21 and 7:22 of the DCC that a Client acting in the capacity of a Consumer can assert against Medstone in pursuance of the Agreement.
- The guarantee provided by Medstone cannot be invoked if:
- shortcomings or damage to the Products have arisen as a result of use other than that which can be expected under normal circumstances, including but not restricted to incorrect transport, safekeeping and storage, and/or if shortcomings or damage have been caused wholly or in part by external causes such as lightning, water damage, fire damage etc.;
- shortcomings or damage are the direct or indirect result of expected wear and tear in relation to the actual use;
- shortcomings or damage are the direct or indirect result of acts or omissions of the Client, including but not restricted to shortcomings and damage resulting from the fact that the Client does not use the Products in accordance with the Instructions For Use; or
- the Client has had the Products processed or repaired by third parties, or has arranged for this to be done, without Medstone having agreed to this in writing.
- Medicines are only eligible for return to Medstone if the following conditions are met:
- Medstone shall only accept Medicines in return from a Client in the event Medstone delivered the wrong item, an item too many, a damaged item or in case of a recall.
- The status of the Medicines should be “ACTIVE” as recorded in the Dutch national verification system (NMVS). Medicines that have been signed off may be registered again within a maximum of ten (10) calendar days and only by the party which signed off the Medicines in the first place.
- Medicines that are to be returned must be delivered to the carrier in the original, unopened and undamaged packaging and must be stored under proper (storage) conditions and must be offered thoroughly packaged to the carrier accompanied with a specification of the storage and transport conditions.
- Medicines that are to be returned are not allowed to have left the premises of the pharmacy, hospital or wholesaler from the moment the Medicines have been received until the moment of return to Medstone.
- Cooled Medicines need to be accompanied with temperature logs for the full duration of the storage period at the location of the Client.
- The Client must report Medicines that it wishes to return in advance by sending an email to firstname.lastname@example.org.
- Invoices in relation to Medicines that have not been returned in accordance with these Conditions, will not be credited by Medstone.
- Reporting Medicines for return shall not relieve the Client from its payment obligation.
- Medstone shall confirm the receipt of Medicines which are properly returned pursuant to these Conditions within five (5) Working Days, after which it shall credit the invoice(s) concerned.
In the event of any further queries in relation to the return of Medicines, the Client is requested to contact Medstone’s customer service at (+31) 20 211 71 62 or email@example.com.
- If a notification as referred to in this Article 18 is justified in the opinion of Medstone, and the Client is not a Consumer, Medstone will, at its discretion, proceed to:
- replace the Products;
- credit the payment made by the Client for the Products; or
- provide the Client with financial compensation that Medstone considers reasonable in view of the nature and scope of the complaint and all additional circumstances.
- If the supplied Product does not comply with the requirements of the Agreement, and the Client is a Consumer, then in deviation from Article 9 the Client can, at its discretion, request Medstone to proceed to:
- supply the missing Products;
- repair the supplied Products; or
- replace the supplied Products.
- In deviation from Article 10, a Client who is a Consumer is not eligible for repair or replacement of the supplied Products if repair or replacement is impossible or cannot be required of Medstone given that their costs are not proportionate to the costs of the exercise of another right or another claim accruing to the Client.
- Legal claims in connection with complaints and notifications as referred to in this Article 18 of a Client who is not a Consumer must be instituted within one (1) year after the Client has notified Medstone of the complaint in accordance with this Article 18. If the Client is a Consumer, the period as referred to in this Article 18.11 is two (2) years. If the Client omits to do this then his right to institute such a legal claim expires.
- PRODUCT RECALLS
- Medstone is entitled to initiate a product recall if the supplied Products do not comply with the agreed requirements.
- If Medstone initiates a product recall, the Client will at all times and immediately follow Medstone’s instructions relating to the recall of Products. The Client is not permitted to make any public statements regarding the possible defects without Medstone’s prior written permission.
- After discovering a defect in the Products, the Client is obliged to do everything in his power to prevent damage or, if this is not possible, to limit the damage, including, if relevant, the recall of the Products in the event that the Client has sold on the Products in the context of resale.
- As soon as the Client has the intention of recalling the Products, he will immediately inform Medstone of this decision. Medstone will grant its cooperation with the Client’s product recall to the extent that this can reasonably be expected of Medstone.
- If the supplied Products do not comply with the stated requirements and Medstone or a manufacturer has initiated a product recall as a result, Medstone will at its discretion proceed with the following in respect of the recalled and returned Products:
- replacement of the Products;
- crediting the payment made by the Client for the Products; or
- providing the Client with financial compensation that Medstone considers reasonable in view of the nature and scope of the complaint and all additional circumstances.
- Medstone is not liable for costs, losses, lost profits or other damage, including fines, incurred by the Client in the event of a recall of the Products, insofar as the damage is caused by an attributable shortcoming on the part of the Client. An attributable shortcoming in any event means the failure to follow instructions provided by Medstone in connection with the recall of the Product.
- The Client indemnifies Medstone against all direct costs, losses and damage, including penalties imposed by local or other authorities, on the part of Medstone that are directly or indirectly the result of the Client’s failure to comply with one of the abovementioned instructions or that are otherwise the result of the Client’s non-compliance with any legal or other obligation in connection with the recall of the Products.
- Article 19, with the exception of this Article 19.8, is not applicable to Consumers. Clients who are Consumers are strongly recommended to follow Medstone’s instructions as referred to in Article 19.2, insofar as these instructions are fully or partly aimed at Consumers, failing which Medstone accepts no liability for the recalled Products.
- GOVERNMENT AND OTHER REGULATIONS
- In respect of the Products supplied by Medstone, the Client is obliged to comply with all applicable usage regulations, safety regulations and government and other regulations. All penalties, damage and/or other consequences arising from the Client’s failure to comply with such regulations will be at the Client’s expense.
- The Client indemnifies Medstone against all claims of third parties, including government agencies, that are the result of the contravention by the Client of his obligations as referred to in Article 20.1.
- If in pursuance of government and other regulations, and/or of regulations of other duly authorised agencies, changes to a Product are necessary on the commencement of the Agreement or at a later time in connection with the intended use that the Client wishes to give or has given to a Product, the costs in connection with this will be borne by the Client.
PART C – PROVISIONS FOR THE PERFORMANCE OF SERVICES
- The Parties will treat information that they provide to each other before, during or after the implementation of the Agreement in confidence when this information is designated as confidential or when the receiving Party knows or can reasonably suppose that the information is intended to be confidential.
- A Party will only disclose confidential information to its Personnel and, where applicable, to Third Parties engaged by it that are directly involved in the implementation of the Agreement, and only insofar as knowledge of this information is strictly necessary. The Parties will agree with their Personnel and with Third Parties engaged by them to keep the confidential information secret.
- Medstone can issue confidential information concerning the Client to its group companies, provided that Medstone also requires these group companies to keep the information confidential.
- The Client is not permitted to use the name of Medstone in publications, advertisements or in any other way unless Medstone has given prior written permission for this.
- In the event of the infringement of the provisions of Article 21, the Client will forfeit an immediately payable penalty, which is not eligible for offset, of €50,000, with the addition of €1,000 per infringement per day or part of a day that the infringement continues, without prejudice to Medstone’s other rights. The amount of the penalty will be paid immediately, without costs, on Medstone’s first request. The provisions of this Article 21 remain in force until two (2) years after the expiry of the Agreement.
- COMPLAINTS AND GUARANTEES – SERVICES
- All Agreements in connection with the Services to be performed will be exclusively accepted and implemented by Medstone. This also applies if it is the explicit or implicit intention that the Agreement is implemented by a particular person. The applicability of article 7:404 of the DCC, which provides a regulation for the abovementioned eventuality, and of article 7:407 paragraph 2 of the DCC, which establishes a joint and several liability in the event that an assignment is given to two or more persons, is expressly excluded.
- Medstone will make every effort to perform the Services agreed in the Agreement with all due care, and to safeguard the interests of the Client, whereby Medstone does not guarantee any results. The Client is obliged to do all that is reasonably necessary or desirable to enable a timely and correct supply by Medstone, particularly by the timely provision, or arrangement for the provision, of complete, sound and clear information or materials.
- Medstone must be notified of shortcomings as soon as possible, but in any event within seven (7) calendar days after the performance of the Service described in the Agreement, failing which the Client will be considered to have fully accepted the result of the Service performed.
- A notification as referred to in this Article 22.3 must give a precise and detailed description of the shortcoming invoked by the Client. The submission of such a notification does not release the Client from his payment obligation.
- If in Medstone’s opinion a notification as referred to in Article 22.3 is justified, Medstone will at its discretion proceed to:
- perform the Services, or perform them again;
- credit the payment paid by the Client for the Services; or
- provide the Client with financial compensation that Medstone considers reasonable in view of the nature and scope of the complaint and all additional circumstances.
- Legal claims in connection with complaints and notifications as referred to in this Article 22 must be instituted within one (1) year after the Client has notified Medstone of the complaint in accordance with this Article 22, failing which the right to institute a legal claim expires.