Terms of Sale and Delivery of Lifemaxx B.V.
Article 1: Definitions
1.1 For the purpose of these Terms, the word “LIFEMAXX” shall be understood to mean:
Private Limited Company LIFEMAXX
3047 AH Rotterdam
LIFEMAXX is registered as a Dutch Private Limited Company in the Chamber of Commerce in Rotterdam under reference number: 58924523
1.2 The word “Buyer” shall be understood to mean any legal entities under public law or private law, as a prospective buyer, prospective customer and generally the contracting partner of Lifemaxx.
1.3 The word “Products” shall be understood to mean any products that Lifemaxx offers, for example products offered on the following website: www.lifemaxx.com.
Article 2: General Provisions
2.1 These Terms are valid for all quotations, offers and/or agreements that Lifemaxx finalizes with its Buyer.
2.2 Any arrangements, additions and amendments to the Agreement or to these Terms, with which Lifemaxx has taken any obligation upon him or agrees to a lower sales price, are non-binding, unless explicitly confirmed by Lifemaxx in writing.
2.3 Any third party that has been contracted by Lifemaxx can exercise the same rights and claims as Lifemaxx, derived from these Terms and possibly other agreements agreed at a later moment in time between parties.
2.4 The Buyer acknowledges the applicability of these Terms when an agreement with the Seller has come into being, unless these Terms have been explicitly rejected by the Buyer in writing.
2.5 If any term or condition of these Terms becomes invalid, then these Terms as for the rest shall remain valid without any effects to the legal force of these Terms.
2.6 The address provided by the Buyer can be used by Lifemaxx as mailing address. This address remains to be the mailing address of the Buyer, unless the Buyer has explicitly notified Lifemaxx in writing about the alteration of address.
2.7 If a situation or conflict occurs and there is no specific provision agreed upon in these Terms, the situation will be assessed in the spirit of this contract.
Article 3: Offers and Quotations
3.1 All offers, quotations, stock list, price list and table of charges are optional and non binding. All offers are valid for the period stated in the offer itself. If the offer does not state a specified period, the offer is valid for 20 days. The validity of the offer can be extended by Lifemaxx through a written statement or notification to the Buyer. The statement will also include the period of prolongation.
3.2 An agreement with the Buyer has come into being by confirmation of the purchase order in writing by Lifemaxx, also when an order has been made through a sales/trade representative or agent. An agreement has also come into being, after the purchase order has been received by Lifemaxx and Lifemaxx has performed or fulfilled accordingly. In case of sales from stock the invoice can be seen as substitution of confirmation of the purchase order.
3.3 Lifemaxx cannot be bound to his offer or quotation in situations where it is obvious to the buyer that (part of) the offer or quotation is based on an obvious mistake or typo made by Lifemaxx.
3.4 The proxy or power of attorney of a sales/trade representative or agent extends no further than generally used. The sales/trade representative or agent can only deviate under specific written authorization for each individual agreement.
Article 4: Prices
4.1 Prices mentioned in the offer or quotation is including VAT, where usual transportation is possible along paved roads, unless explicitly agreed otherwise.
4.2 Prices stated by Lifemaxx are in Euros, exclusive of any government charges or taxes, station cost, insurance cost and other extra charges.
4.3 In case there has been no price agreed upon Lifemaxx will charge at the time of delivery their price and rate at that moment to the Buyer.
4.4 All deliveries will be done according to the price agreed upon, except if - after the conclusion of agreement – there are changes/mutations in the price of materials, packaging, raw materials, semi-manufactured goods, wages, premium, freight, taxes, exchange rates and or other factors that affect the price of the products. Such mutation in the price does not give the Buyer the right to dissolve the contract, unless the mutation of the price consists of more than 15%.
Article 5: Length of contract, Time of delivery, Performance and Amendment Agreement
5.1 The Agreement/Contract between Lifemaxx and the Buyer is entered for an indefinite period, unless the nature of the agreement dictates otherwise or if both parties expressly agree otherwise in writing.
5.2 The delivery time frame with respect to goods and/or work to be performed has been given as accurately as possible but it shall not be binding. The agreed delivery dates and times shall always be deemed to be estimates only. When Lifemaxx fails to deliver on time or perform the work on time the Buyer has to give notice of default in writing. Lifemaxx will in that case be granted a reasonable period to deliver the goods or finish the work.
5.3 The delivery time frame with respect to goods and/or work to be performed starts from the moment that the Buyer has provided Lifemaxx all the correct and necessary information/data.
5.4 Delivery will be from the business of Lifemaxx. The Buyer shall take delivery of the goods ordered on their being offered for delivery. If the Buyer refuses or fails to take delivery or refuses to provide the necessary information or instructions that are needed to deliver, Lifemaxx is entitled to store these goods at the Buyer’s expense and risk.
5.5 Lifemaxx is entitled to engage a third party to perform a portion of the work.
5.6 Lifemaxx is entitled to finalise the Agreement in different phases and to invoice for every phase individually. Lifemaxx is entitled to suspend the next phase until the Buyer has approved in writing the work done in the previous phase.
5.7 If during the performance of the Agreement by Lifemaxx, the Agreement has to be amended or in case of an agreement ancillary to the Agreement for a proper execution of the Agreement, both parties will timely consult with each other to amend or alter the Agreement. If the nature, extent or content of the Agreement, whether on request or indication of the Buyer or of an authority, is amended, modified or altered and the Agreement therefore is changed qualitatively or quantitatively, it can also have consequences for what was originally agreed upon. As a result the originally agreed amount to be paid can be increased or decreased. Lifemaxx shall try to give a quotation in advance if possible. By altering of amending the Agreement the original performance/delivery time frame can be modified. The buyer accepts the possibility of amendment or alteration of the Agreement including a change in price and performance/delivery time frame.
5.8 If the Agreement is amended, altered, modified or in case of an agreement ancillary to the Agreement, Lifemaxx has the right to perform the Agreement after a competent person within Lifemaxx has given his consent and the Buyer has given his consent to the price and other terms including the performance/delivery time frame. If Lifemaxx does not or not immediately execute the amended agreement, Lifemaxx is not in breach of the contract and the Buyer does not have the right to terminate the contract. Lifemaxx shall not be in default, if Lifemaxx refuses to amend the Agreement, due to consequences in qualitative or quantitative respect to e.g. the task or deliverables.
5.9 If the Buyer is in default of any of his obligations towards Lifemaxx, the Buyer is responsible for all damages and losses (including compensation for any expenses incurred) inflicted to Lifemaxx direct or indirectly.
5.10 If Lifemaxx and the Buyer has agreed to a fix price, Lifemaxx is entitled to increase the price without the Buyer being entitled to terminate the contract, in the event the increase in price is due to legal or regulatory competency/obligation or due to an increase in price of raw materials, wages etc. or on any other grounds which could not be foreseen at the time of entering into the Agreement. If the increase in price - not caused by an amendment to the Agreement - is more than 10% and occurs within 3 months after entering into the Agreement, only the Buyer will be entitled to terminate the contract in writing, unless Lifemaxx is prepared to execute the initial Agreement or if the price increase is caused by competency or obligation deriving from the law or in case it has been agreed on that the delivery time frame is longer than 3 months after the sale.
5.11 Lifemaxx is entitled to suspend the performance of its obligations or terminate the contract, if the Buyer fails to fulfil any obligation arising for him under the agreement concluded or fail to fulfil such contractual obligation in good time or there is serious doubt whether the Buyer is willing or able to fulfil his contractual obligation towards Lifemaxx.
5.12 Lifemaxx is also entitled to terminate the contract in case of circumstances that make it impossible to execute the Agreement or in case of circumstances of such nature that Lifemaxx reasonably cannot be held to the Agreement.
5.13 In case of bankruptcy, suspension of payment, closing down or liquidation of the Buyer's enterprise, Lifemaxx has the right without further notice of default being required, to set aside the agreement in whole or in part, without Lifemaxx being under any obligation to pay damages, or compensation for any expenses and losses incurred, or to provide guarantee and without prejudice to any further rights it may have. The claims of Lifemaxx on the Buyer will be immediately due and payable.
5.14 If the Buyer cancels an order entirely or partially, the Buyer will be integral charged for already ordered of ready products, increased with any removal, supply and delivery cost and for the execution of the Agreement reserved labour time.
5.15 The buyer bears all risk of loss or damage to the goods during transportation from the moment the goods leave the building/storage of Lifemaxx. Lifemaxx is free to choose the loading, transport and expediter/carrier, unless otherwise agreed.
Article 6: Ownership, Retention of Title
6.1 Title in the goods delivered under the agreement shall only pass to the Buyer after Lifemaxx claims on the Buyer on account of goods delivered or to be delivered under the agreement, or on account of the Buyer's failure to perform such agreement, have been paid in full including any interest and costs (extrajudicial or judicial).
6.2 In the event that the Buyer creates a new good using a product of Lifemaxx, where the title has been retained, the creation has been done on behalf of Lifemaxx and Lifemaxx will be the owner of the newly created product. The Buyer will become the owner of this product once the Buyer has fulfilled all his obligations towards Lifemaxx.
6.3 Until the above-mentioned claims are met The Buyer shall not have the right to create a lien of pledge, either possessory or non-possessory, on the goods in question, except within the normal course of his business. The Buyer is obligated on request of Lifemaxx to create a lien of pledge on claims of the Buyer for the supply of Lifemaxx products to his buyers. In case Lifemaxx possesses other claims towards the Buyer, where there is no retention of title, the Buyer establishes as security for the fulfilment of their obligations in favour of Lifemaxx a possessory pledge on the goods. The Buyer shall in all these cases upon request of Lifemaxx create a lien of pledge. He/she will guarantee that he/she is authorised to create a lien of pledge and that the goods, apart from the rights of Lifemaxx do not contain any other limited property rights.
6.4 The Buyer shall inform Lifemaxx without undue delay of any seizing or other legal or physical impairment of endangering of the Retained goods or any other security right provided to Lifemaxx.
6.5 The Buyer is obligated to keep the products with a title of retention separately from other goods and clearly marked as Lifemaxx’s property. The Buyer shall take the necessary care for these goods and insure them properly at invoice value. The Buyer herewith assigns to Lifemaxx the Buyer’s claims under the relevant insurance policies.
6.6 In case the Buyer fails to fulfill his payment obligations, the fulfillment thereof is overdue or the Buyer has payment problems, without prejudice to any other rights Lifemaxx may have, without any further notice or default, the Buyer hereby irrevocably authorizes Lifemaxx or a third party on behalf of Lifemaxx to enter the premises, where the goods are located, to take the supplied goods back at first demand, regardless of where the goods are located.
6.7 The abovementioned provisions do not affect any other rights that Lifemaxx may have.
Article 7: Force Majeure
7.1 Lifemaxx is not obliged to perform any obligation to the Buyer is Lifemaxx is being hampered due to a circumstance that is not due to negligence, and by virtual of law. Should a circumstance of force majeure occur on the side of Lifemaxx, the latter may suspend or set aside the agreement by means of letter to this effect, without being liable for any damage or compensation for any expenses and losses incurred.
7.2 Force majeure is understood to mean any circumstance beyond Lifemaxx’s control, whether or not such circumstance might have been foreseen on the conclusion of the agreement, which temporarily or permanently prevents Lifemaxx from performing the agreement. Force majeure includes but is not limited to: war, state of emergency, threat of war, civil war, riots, work strike, border control strike, working-to-rule, transport problems, fire, illness, weather conditions, serious breakdowns in Lifemaxx, late delivery or failure to deliver by ancillary suppliers, lack of material and omissions of suppliers or subcontractors, import and export restrictions of any kind and other government measures.
Article 8: Payment and extrajudicial costs
8.1 Any payments towards Lifemaxx are immediately due when the deal has been closed, unless agreed otherwise. If for any reason the payment is not due immediately, then the payment is due upon (partial) delivery of the products. If payment is still not due according to previous stated, then payment is due within 14 days after date of delivery.
8.2 Any and all payments must be made as indicated by Lifemaxx in the currency of the invoice, unless agreed to otherwise in writing.
8.3 If the Buyer has not settled the invoice within the period specified in article 8.1 the Buyer is in default of payment. If Lifemaxx has to send a reminder or notice, Lifemaxx is authorized to charge € 20, - service charge for every reminder or notice sent.
8.4 Should the Buyer fail to effect full payment within the specified period according to the previous mentioned provisions in this article, the Buyer is deemed to be in default by operation of law without any further notice of default being required. When the Buyer is deemed to be in default, in moratorium or in case of bankruptcy, the Buyer will automatically owe from the next day following an increase of 1% per month interest over the amount due or in the event that the legal interest rate is higher, the legal interest rate will be owed. Lifemaxx is then also entitled to terminate all current contracts and obligations wholly or partially without any judicial intervention without prejudice to the right to compensation in full. The Buyer shall bear all cost arising from taking any (extra) judicial measures in connection with late payment. Moreover, any credit facility will fall due and any amount due will be due immediately at once in full.
8.5 When the Buyer is deemed to be in default all cost deriving from taking extra judicial measures will be owed by the Buyer. The extrajudicial costs will be calculated based on what the Dutch collection practice is, at the moment “Herziene staffel incassokosten” used by the Dutch courts.
8.6 Lifemaxx has the right to allocate payments made, firstly to cost made for taking debt collection measures, secondly to the interest owed and finally to the head sum and accrued interest.
8.7 Lodging a complaint shall not suspend the Buyers payment obligation in respect of the product in dispute. The Buyer is still obligated to keep the product and to fulfill the payment obligation. Any and all payments by the Buyer must be made without any set-off. The Buyer hereby explicitly waives his right to any set-off.
8.8 In the event of acceptance of an order by Lifemaxx entirely or partially, the Buyer is obligated – which obligation is an integral part of the order – upon request of Lifemaxx to prove its creditworthiness, either before or after delivery, show a provision of security in accordance with Lifemaxx’s request by for instance cash deposit, provide a bank guarantee, cession, providing a deed of lien or mortgage lien etc. Lifemaxx determines the amount, extend and the type of provision of security. The provision of security can also be applied to cases concerning damages suffered by Lifemaxx caused by the Buyer due to (partially) dissolution of the agreement.
8.9 If the Buyer is in default to provide security of payment Lifemaxx cannot be held to fulfill its obligation under the Agreement towards the Buyer. Lifemaxx will still be entitled to performance of the Agreement and payment of the amounts due based on the Agreement, as well as compensation for damages and /or the right to claim the security of payment through a legal procedure.
Article 9: Warranty
9.1 Seller warrants that goods sold or work performed comply with the standards applicable in the branch of industry and are intended for normal use. The warranty on a product supplied by Lifemaxx is the warranty given by the manufacturer of the product. This warranty does not affect the Buyer’s rights arising from the law.
9.2 The Buyer is obligated to examine the ordered products or work performed immediately once the goods are delivered or received by the Buyer. Moreover, the Buyer is obligated to examine the quality and/or the quantity of the delivered goods agreed upon. Lifemaxx has to be immediately notified through written notification in cases of visible faults/defects upon arrival or acceptance of the ordered products. In case of any non-visible faults/defects Lifemaxx has to be notified immediately upon discovery of this fault/defect, no later than three working days. The notification has to be send by registered letter to Lifemaxx. The fault/defect should be described in detail and clearly in order for Lifemaxx to assess the problem. On expiry of the aforesaid periods, the Buyer shall be deemed irrevocably and unconditionally to have accepted the goods delivered. Returns have to be send back properly packaged, shipped and postage paid.
9.3 The in article 9.1 mentioned warranty is valid for a period of seven days after delivery, unless the nature of the delivered determines otherwise or parties explicitly agreed otherwise. The warranty on a good produced by a third party supplied by Lifemaxx is the warranty given by the manufacturer of the product, unless mentioned otherwise.
9.4 Every form of warranty expires in cases where the fault/defect is caused by negligent use of the product, incompetent handling or handling without due care. The warranty expires for damages caused by circumstances where Lifemaxx has no control over (for example weather conditions etc.). The warranty also expires if the fault/defect is caused by wear due to normal use.
9.5 Lodging a complaint shall not suspend the Buyers payment obligation in respect of the product in dispute. The Buyer is still obligated to keep the product and to fulfill the payment obligation. In the event that a good is faulty or defect and the complaint has been lodged timely, Lifemaxx shall within a reasonable period after receiving the product or in case returning the product is reasonably not possible, notify the Buyer in writing about either replacement of the product, reparation of the product or pay a replacement fee. Lifemaxx is entitled to make the choice between these options. In case of replacement the Buyer is obligated to return the replaced good and transfer the property rights of this product to Lifemaxx, unless Lifemaxx determines otherwise.
9.6 If a complaint is unfounded, the cost of Lifemaxx resulting from this unfounded complaint, including the research cost made by Lifemaxx, will be for the account of the Buyer.
9.7 After the warranty period has expired all cost of reparation or replacement will be for the account of the Buyer, including administration, postal and call-out charges/costs.
9.8 In deviation of the statutory limitation periods, the statutory limitation period of all claims and defences towards Lifemaxx and agreements where a third party of Lifemaxx is involved with the performance of the agreement is one year.
Article 10: Complaints
10.1 Lodging a complaint shall not suspend the Buyers payment obligation in respect of the product in dispute. Complaints have to be done by registered letter to Lifemaxx within 8 days after delivery of the products. On expiry of the aforesaid periods, the Buyer shall be deemed irrevocably and unconditionally to have accepted the goods delivered. The burden of proof that the complaint has been done within the aforesaid period lies with the Buyer. The Buyer has to show the validity of his complaint with the product itself, while the burden of proof that the product is the same product supplied by Lifemaxx lies with the Buyer and that the product is in the same state/condition as when leaving the warehouse of Lifemaxx. Deviations in quality, size, color, finish and suchlike, which are technically unavoidable or acceptable under trade custom, do not justify a complaint. Complaints will only be honoured by Lifemaxx after Lifemaxx has had the opportunity to check the product in original state and packaging. Only products that have been returned at request of Lifemaxx after the complaint has been found valid will be accepted by Lifemaxx. The cost and risk of the shipment to Lifemaxx lies with the Buyer. If the Buyer has showed that the product contains a fault/defect and Lifemaxx has accepted the complaint as valid, Lifemaxx is entitled to choose between replacement of the product or give the Buyer a refund. The Buyer is not entitled to any other form of compensation for damages. In respect of complaints partially delivery will be seen as a separate/individual delivery.
Article 11: Liability
11.1 In the event that Lifemaxx is liable, the liability is limited to the extent regulated in this article.
11.2 Lifemaxx cannot be held responsible for any damage, due to incorrect or incomplete information provided by the Buyer. Lifemaxx’s liability for any damages direct or indirect shall be limited at any time to the invoice amount of the order.
11.3 Lifemaxx shall never be liable for any indirect, special, incidental or consequential loss or punitive damages, in any way whatever associated with or caused by an error or omission in the performance of the Agreement.
11.4 Direct damages is exclusively understood to mean reasonable consist to assess the cause and extent of the damage, where the assessment involves the damages under these Terms, reasonable cost made to perform according to the agreement due to the poor performance of Lifemaxx, if it can be imputed to Lifemaxx, and reasonable cost made to prevent or limit the damages caused, if the Buyer can prove that these cost have resulted in a limitation of the direct damages mentioned in these Terms.
11.5 Under all circumstances the liability of Lifemaxx is limited to the amount the insurance of Lifemaxx covers.
Article 12: Brand and Quality
12.1 If Lifemaxx supplies a product under the quality mark or brand of “Lifemaxx”, stated on the invoice or indicated on the product, the Buyer is subject to a penalty - immediately due and payable – of € 100.000, - per violation or event that the Buyer supplies the product under a different brand name to any third-party, including agents, sale/trade representatives or successors. The Buyer has to impose the aforesaid obligation and penalty on his buyers. The Buyer will also be subjected to the aforesaid penalty per violation or event that the Buyer, his agent, sale/trade representative offers or supplies products under the quality mark or brand “Lifemaxx” contrary to reality or under false pretends. The indication on the invoice line is determinative and not the billhead cover.
Article 13: Intellectual Property
13.1 Lifemaxx reserves all rights and claims derived from any Dutch laws or regulation concerning copyright and intellectual property.
Article 14: Indemnification
14.1 The Buyer indemnifies Lifemaxx against any third party claims for compensation for loss or otherwise which relate directly or indirectly to the performance of the agreement, which has been imputed by others.
14.2 If Lifemaxx for that reason is held liable by a third party, The Buyer is obligated to assist Lifemaxx in court and out of court and immediately obligated to do what can be expected under these circumstances. If the Buyer is in default to take the adequate measures, Lifemaxx is entitled without notice to take these measures. All cost and damages of Lifemaxx and third parties caused by this, is for the account of the Buyer.
Article 15: Jurisdiction
15.1 In absence of amicable settlement, all disputes resulting from contracts concluded between the Buyer and Lifemaxx will be submitted to the court of Rotterdam, the Netherlands. Lifemaxx may elect instead to bring any such dispute before any other court that has jurisdiction pursuant to the law.
15.2 All contracts, agreements, sale and delivery terms or disputes with Lifemaxx shall be governed by Dutch Law. The applicability of the Vienna Sales Convention concerning goods (11 April 1980 Trb 1981, 184) is expressly excluded, as well as any future amendments of this treaty.