Crescent Vision Terms and Conditions of Sale
1.Basis of contract
1.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
1.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
1.4 In the event of a discrepancy between any short form terms and conditions provided by the Supplier or any other representation made by the Supplier or Customer, these terms shall prevail.
1.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
1.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of max 30 Business Days from its date of issue.
1.7 Any software provided by Supplier is governed by the appropriate software licence and end user licence agreement and is excluded from these Terms and Conditions of Sale.
2.Goods
2.1 The Goods are described in the Supplier's brochure or website as modified by any applicable Specification.
2.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 2.2 shall survive termination of the Contract.
2.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
3. Delivery
3.1 The Supplier shall ensure that:
3.1.1 each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
3.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
3.2 Delivery by Supplier
3.2.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as 3.2.2 the parties may agree (Delivery Location) on or around the agreed delivery date.
Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
3.2.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
3.2.4 The Supplier shall not be liable for any delay or failure in the delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.2.5 If the Supplier fails to deliver the Goods, subject to clause 3.5, its liability shall be limited to the invoice price of the Goods that failed to be delivered.
3.2.6 In the event Customer fails to accept delivery of the Goods, Supplier will instruct Courier to return to Goods and will charge Customer for the return courier cost and may, at its sole discretion, charge Customer storage costs of 50 euro per day until delivery is made.
3.2.7 Supplier shall attempt redelivery no more than twice, at Customers’ cost.
3.2.8 In the event Customer fails to accept delivery in accordance with clause 3.2.7, Supplier shall retain the Goods, cancel the Order, and Customer shall be liable for full payment of the Order.
3.2.9 If the Supplier delivers more than the quantity of Goods ordered then the Supplier shall arrange for collection, at its cost, for the excess Goods unless the Customer elects to retain the Goods in which case Supplier shall invoice the Customer for the excess Goods which shall be payable in accordance with the terms of the original Order. If the Supplier delivers less than the quantity of Goods ordered then the Supplier shall send, at its cost, the Goods to complete the order within 15 days. In the event the Customer elects to not receive the Goods then Supplier shall make a pro-rata adjustment on the invoice.
3.3 Collection by Customer
3.3.1 Customer shall collect the Goods from the Supplier's premises or such other location as may be advised by the Supplier prior to delivery (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.
3.3.2 Delivery is completed upon the Goods being handed over by Supplier to Customer or its representative providing Supplier with Order details for verification.
3.3.3 The Supplier shall not be liable for any delay or failure in the Goods being available for collection that is caused by a Force Majeure Event or the Customer's failure to arrange collection of the Goods.
3.3.4 In the event Customer fails to collect the Goods Customer shall have 10 days to collect uncollected Goods and Supplier may charge Customer, at its sole discretion, storage costs of 50 euro per day until collection is made.
3.3.5 In the event Customer does not collect Goods within 10 days of the Delivery Date, Supplier shall retain the Goods, cancel the Order, and Customer shall be liable for full payment of the Order.
3.4 In the event Goods are made according to a Specification, Supplier shall be entitled to full payment for the undelivered Goods within 30 days if not made prior to Delivery.
3.5 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4. Quality
4.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period),] the Goods shall:
4.1.1 conform in all material respects with their description and any applicable Specification; and
4.1.2 be free from material defects in design, material and workmanship; and
4.1.3 be of satisfactory quality; and
4.1.4 be fit for any purpose held out by the Supplier.
4.2 Subject to clause 4.3, if:
4.2.1 the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;
4.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
4.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 4.1 if:
4.3.1the Customer uses the Goods after giving notice in accordance with clause 4.2;
4.3.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
4.3.3 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
4.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
4.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
4.3.6 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.5 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
4.6 The terms implied by Art. 7:17 and 7:21 Dutch Civil Law Code are, to the fullest extent permitted by law, excluded from the Contract.
4.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5 Title and risk
5.1 The risk in the Goods shall pass to the Customer on completion of physical delivery.
5.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
5.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
5.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.1.2 to clause 8.1.4); and
5.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to:
5.3.5.1 the Goods; and
5.3.5.2 the ongoing financial position of the Customer.
5.4 Subject to clause 5.5, the Customer may only use the Goods in the ordinary course of its business before the Supplier receives payment for the Goods.
5.5 Special Terms for Resellers
5.5.1 In the event the Customer is appointed as a Reseller by Supplier:
5.5.1.1It does so as an independent Reseller and not as the Supplier’s agent; and
5.5.1.2 Shall be subject to a separate Resellers agreement.
5.5.1.3 Title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs unless Goods have been paid for prior to resale.
5.5.2 At any time before title to the Goods passes to the Reseller, the Supplier may:
5.5.2.1 by notice in writing, terminate the Customer's right under clause 5.5.1 to resell the Goods; and
5.5.2.2 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so within 10 days, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6. Price and payment
6.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
6.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
6.1.1 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
6.1.2 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
6.2 The price of the Goods:
6.2.1 excludes amounts in respect of applicable taxes, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
6.2.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer unless otherwise agreed in writing.
6.2.3 excludes any additional costs incurred by Crescent Med as a result of Customer exceeding the usage cap as set out in the Order for Consumables.
6.3 The Supplier may invoice the Customer for the Goods on or after the Order is accepted.
6.4 The Customer shall pay each invoice submitted by the Supplier:
6.4.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
6.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
6.3 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 8, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.6 will accrue each day at 2% in accordance with art. 6:119(1) Dutch Civil Code.
6.3.1 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Limitation of liability
7.1 The Supplier has obtained relevant insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
7.2 The restrictions on liability in this clause 7 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
7.3.1 death or personal injury caused by negligence;
7.3.2 fraud or fraudulent misrepresentation;
7.3.3 breach of the terms implied by article 7:15 Dutch Civil code.
7.4 Subject to clause 7.3, the Supplier's total liability to the Customer shall not exceed the lower of the full contract price, or Order value.
7.5 Subject to clause 7.3, the following types of loss are wholly excluded:
7.5.1 loss of profits;
7.5.2 loss of sales or business;
7.5.3 loss of agreements or contracts;
7.5.4 loss of anticipated savings;
7.5.5 loss of use or corruption of software, data or information;
7.5.6 loss of or damage to goodwill; and
7.5.7 indirect or consequential loss.
7.6 This clause 7 shall survive termination of the Contract.
8 Termination
8.1 Without limiting its other rights or remedies, the Parties may terminate this Contract with immediate effect by giving written notice to the other if:
8.1.1 Either Party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
8.1.2 Either Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
8.1.3 Either Party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
8.1.4 Either Party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
8.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1.1 to clause 8.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
8.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.4 On termination of the Contract for any reason, the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
8.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
9. Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Contract by giving 30 days written notice to the affected party.
10. General
10.1 Assignment and other dealings.
10.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
10.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
10.2 Confidentiality.
10.2.1 Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.2.
10.2.2 Each party may disclose the other party's confidential information:
10.2.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10.2.2; and
10.2.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.2.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
10.3 Entire agreement.
10.3.1 The Contract constitutes the entire agreement between the parties.
10.3.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
10.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.5 Waiver.
10.5.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
10.5.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
10.6 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 10.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.7 Notices.
10.7.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
10.7.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
10.7.1.2 sent by email to the following addresses :
Supplier: support@crescent-med.com
Customer: The email address of the person who made the Order
10.7.2 Any notice shall be deemed to have been received:
10.7.3 if delivered by hand, at the time the notice arrives at the proper address;
10.7.3.1 if sent by next day post, at 9.00 am on the second Business Day after posting; or
10.7.3.2 if sent by email, at the time of transmission, or, if this time falls outside Business Hours, when Business Hours resume.
10.7.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.8 Third party rights.
10.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights for any person who is not party to this contract to enforce any term of the Contract.
10.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
10.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of the Netherlands.
10.10 Jurisdiction. Each party irrevocably agrees that the courts of the Netherlands shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
11 Interpretation
11.1 Definitions:
Business Day: a day other than a Saturday, Sunday or national holiday in the Netherlands, when banks in the Netherlands are open for business.
Business Hours: the period from 9.00 am to 5.00 pm CET on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.4.
Consumable: Supplementary goods or services that facilitate the use of Crescent Vision and/or Crescent Vision Live including, but not limited to, SIM cards and modems.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person who purchases the Goods from the Supplier as an end user, or as a Reseller.
Delivery Location: has the meaning given in clause 3.2.1
Force Majeure Event: means any event beyond the reasonable control of a Party and which is unavoidable including, but not limited to, the following events: epidemics, pandemics, earthquakes, landslides or displacements of other materials, storms, floods, hurricanes, tempest, acts of God, state or public enemy, wars, revolutions, uprisings, hostilities, civil disturbances, blockades, embargoes, government restraints or similar disruptions or interferences with trade, riots, civil war, insurrection, invasion, explosions and fires. For the avoidance of doubt, strikes, lockouts and shutdowns of a Party shall not be a Force Majeure Event for that Party.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form.
Re-Seller: a person who purchases the Goods to be resold to end users.
Specification: any customisation or bespoke creation of the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: CrescentMed B.V; address: Staalweg 1, 2612KK Delft, NL; registration number: 93291809.
Warranty Period: has the meaning given in clause 4.1.
11.2 Interpretation:
11.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
11.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
11.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
11.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
11.2.5 A reference to writing or written excludes fax but not email.
12. Open Source Software in Crescent Vision Products
Crescent Vision uses open source software (OSS) components in its products distributions. OSS source code for Crescent Vision can be found here.