General Conditions

General Conditions

Article 1 – General
1. Fertilily.com is an initiative, trade name and part of Rosesta Medical BV.
2. Fertilily.com develops – and accepts orders for the supply of medical devices and accessories and services in this area, all in the broadest sense.
3. Rosesta Medical BV handles orders and deliveries of the aforementioned goods and services to both consumers and the professional market.

Article 2 – Definitions
The following definitions apply in these General Terms and Conditions:
Products: medical devices and related items and services to aid conception.
The Entrepreneur: Rosesta Medical BV or one of its representatives.
The Consumer: any natural person or legal person who contacts Fertilily.com or Entrepreneur about the formation of an Agreement.
Agreement: Every Distance Agreement relating to the purchase of a movable item that is concluded between the Entrepreneur and the Consumer, any change thereof or addition thereto, as well as all (legal) acts in preparation and in implementation of that Agreement.
Distance Agreement: The Agreement where up to completion of the contract exclusive use is made of one or more techniques for remote communication, such as, for example, the internet.

Article 3 – Applicability
1. These General Terms and Conditions apply to all offers of the Entrepreneur and Distance Agreements concluded between the Entrepreneur and the Consumer, with regard to the Products.
2. These General Terms and Conditions are available on the website. Before an order can be shipped, the customer must agree to these Terms and Conditions by checking the relevant check box and clicking the button for final shipment. Customers can save and print the General Terms and Conditions and order details using the features available on the website to keep the saved copy available.
3. General Terms and Conditions used by the customer or other General Terms and Conditions do not apply. The customer can only rely on alternative and / or additional conditions if and insofar as Fertilily.com accepts this in writing. Such alternative or additional General Terms and Conditions do not affect the applicability of the other provisions of the General Terms and Conditions and only apply to the Agreement for which they have been specifically and explicitly agreed in writing.
4. Entrepreneur reserves the right to make changes to these General Terms and Conditions and / or to supplement them. However, such changes and additions will not apply to any existing Agreement.

Article 4 – Information in advance
1. The Entrepreneur will, before the agreement is concluded, provide the consumer with all relevant information required by law in writing or in such a way that this can be stored in an accessible manner by the Consumer on a durable data carrier, including, but not limited to:
a. the visiting address of the Entrepreneur where the Consumer can go visit;
b. the conditions under which and the way in which the Consumer can exercise product return rights, or a clear statement regarding the exclusion of the right of returns;
c. the information about guarantees and service after purchase;
d. the information included in article 5, paragraph 2, unless it has already been provided to the Consumer

Article 5 – Prices
1. The price as stated in the offer of the Entrepreneur applies as the price for the Products to be delivered.
2. If there are any additional costs such as freight, delivery or postage costs to be charged to the Consumer, the Entrepreneur must specifically disclose this to the Consumer prior to closing the Agreement.
3. All prices are stated in Euros and include value added tax.
4. Discounts are deemed to have been granted once only. Previously granted discounts do not bind Fertilily.com in any way in case of a future Agreement.

Article 6 – Formation of the Agreement
1. Any statement by Fertilily.com about the availability of Products on the website constitutes an invitation to make an offer and does not include a binding offer by the Entrepreneur. An Agreement is concluded as soon as the Entrepreneur confirms the order placed by the Consumer

2. Entrepreneur reserves the right to refuse orders from customers at any time. If Entrepreneur makes use of the right to refuse an order, Entrepreneur informs the customer of this as soon as possible after receipt of the order.
3. Upon confirmation of the order, Entrepreneur provides the customer with a confirmation of the contents of the Agreement as concluded via email.
4. Information, images, announcements, advertisements, quotes, etc., which are placed on the website or sent by e-mail or other means of communication consisting offers and the most important characteristics of the Products are displayed as accurately as possible. However, the Entrepreneur does not guarantee that all offers and Products fully correspond with the information provided unless the information has been designated as contractual information. 

Article 7 – Execution of the Agreement
1. The Entrepreneur guarantees that a delivered item complies with the Agreement, and to be in line with the communications that the Entrepreneur and his suppliers have made about the item. The Entrepreneur also guarantees that the item has the characteristics as required for its intended use.

2. The Entrepreneur guarantees that the work performed by him is in line with the Agreement and is carried out with good workmanship and by using proper material.
3. The Consumer can no longer claim the provisions made in paragraphs 1 and 2 if he, or va third party, without the prior written consent of the Entrepreneur repair, or perform other related work on the item delivered by the Entrepreneur, or when then Consumer himself is to blame for the fact that the delivered goods no longer conform. This provision does not waive any rights of the Consumer in case the Entrepreneur fails to comply with the Agreement.

Article 8 – Return policy
1. When purchasing goods, the Consumer has the option to cancel the Agreement without due explanation for a period of 14 days. This period starts on the day following receipt of the product by the Consumer.

2. The Entrepreneur excludes the Consumer’s cancellation rights, in accordance with the relevant applicable legal provisions, for goods:
a. that have been delivered by the Entrepreneur in accordance with specifications of the consumer;
b. that are clearly personal in nature;
c. that cannot be returned due to their nature;
d. that can perish or age quickly;
e. that are not suitable for being returned for reasons of health protection or hygiene and of which the seal has been broken;
f. which have been irrevocably mixed with other goods after delivery;
g. changes or damage have been made to the delivered goods.
3. The Entrepreneur excludes returns for services that have been fully performed within the 14 day period, if the delivery has been performed with the express consent of the Consumer and the Consumer has expressly waived his right to return.

Article 9 – Obligations of the Consumer and costs in the event of returns
1. To make use of his rights under the returns policy, the Consumer will use and follow clear and reasonable instructions provided by Entrepreneur with the offer and / or at the latest with the delivery.
2. The Consumer returns the goods received by him to the Entrepreneur immediately and in any case within 7 days of exercising the cancellation right, quoting RETURN:             

Rosesta Medical BV, Productieweg 14, 8061 RK, Hasselt , the Netherlands

3. During the consideration period, the Consumer will handle the product and the Packaging with care. He will only unpack the product to the extent that it is necessary to be able to assess whether he wishes to keep the product. If he decides to make use of the cancellation right, he will return the product with all accessories supplied – if reasonably possible – in the original condition and packaging to the Entrepreneur.
4. If the Consumer makes use of his cancellation right as provided in the previous article, the Entrepreneur will immediately but no later than 14 days after the day of receipt of the notice by the Consumer refund all moneys paid by Consumer, including delivery costs.
5. The Consumer bears the direct costs of returning the product, unless otherwise agreed.
6. Unless the entrepreneur has offered on the basis of the terminated Agreement to The Consumer to collect the goods, Consumer can only demand compliance with the of the reimbursement referred to in paragraph 4, after the Entrepreneur has received the goods or the Consumer has demonstrated that he has returned the goods.

Article 10 – Cancellation
1. Before delivery has taken place, the Consumer may cancel the Agreement free of charge if agreed with the Entrepreneur.
2. The Entrepreneur can deviate from the previous paragraph in favor of the Consumer.
3. The preceding paragraphs do not apply if the Consumer uses a legitimate cancellation right.  

Article 11 – Delivery
1. The Entrepreneur will take the greatest possible care when delivering on the Agreement.
2. The entrepreneur will the deliver the product as soon as possible but not later than within 30 days of order by the Consumer, unless the Consumer and the Entrepreneur have agreed a different delivery period.
3. The responsibility for the product will be transferred to the Consumer when the Consumer has received the product.
4. The Consumer is obliged to purchase the ordered or purchased Products as soon as possible after these have been made available to the Consumer by the Entrepreneur. 

Article 12 – Payment
1. Customer pay due amount to Fertilily.com in the currency as specified on the invoice within the term stated on the invoice, unless the parties agree otherwise.
2. If the Consumer fails to pay in full, the Consumer will be send a reminder with the request to proceed with payment in full without additional charge within fourteen days, counting from the day after the Consumer has received the reminder.
3. If the Consumer does not fully meet his payment obligations following the expiry of the second term (after reminder), the Entrepreneur is authorized to recover the amount due plus legal interest and collection costs, as referred to in Article 12, without further notice.

Article 13 – Legal interest and extrajudicial costs
1. In the event of late payment of an amount due, the receiving party has the authority to charge statutory interest as defined under Article 6: 119 of the Dutch Civil Code from the day on which the default occurred.
2. The extrajudicial costs that a party incurs to pay off a debt may be charged to the failing party. The height of these extrajudicial collection costs is subject to legal limits. This can be deviated from for the benefit of the Consumer.

Article 14 – Liability
1. The Entrepreneur is liable to the Consumer for damages that result from a failure by the Entrepreneur to fulfill the Agreement, unless this shortcoming cannot be attributed to the Entrepreneur or to its associates whose services the entrepreneur uses in fulfilling the Agreement.
2. The Entrepreneur accepts liability for injury caused during the fulfilment of the Agreement inflicted on persons in those cases where the Entrepreneur can be seen as a manufacturer within the meaning of Article 6: 187 paragraph 2 of the Dutch Civil Code.
3. The Consumer is liable to the Entrepreneur for damages that results from a shortcoming on the part of the Consumer in the fulfillment of the Agreement, unless this shortcoming cannot be attributed to the Consumer.
4. Damage to Products offered for repair and / or other treatment and which, due to their age, entail an increased risk of damage occur for account and risk of the Consumer, provided that the Entrepreneur informs the Consumer prior to such action.

Article 15 – Non-compliance with the Agreement
1. If one of the parties does not comply with the Agreement, the other party is authorized to Terminate the agreement, unless the shortcoming, given its limited significance does not justify dissolution.

2. If Fertilily.com cannot fulfill its obligations to the Consumer due to Force Majeure, the fulfillment of those obligations will be suspended for the duration of the force majeure situation. 

Article 16 – Retention of title and right of retention
1. The Entrepreneur retains ownership of the Products delivered until these have been paid in full including any costs arising from Article 11, paragraph 3, notwithstanding any rights due to the Consumer under the applicable laws.
2. Upon repair of delivered goods the Entrepreneur is authorized to apply legally entitled right to retention (retention). The Entrepreneur will in that case retain ownership of the delivered goods until the Entrepreneur has received payment of all outstanding invoices in full for the delivered goods. The Entrepreneur is not entitled to its right of retention if he performs certain services on his own initiative, or performs work for which the Consumer has not given him an order. 

Article 17 – Intellectual Property Rights
1. Copyright as well as all other intellectual property rights on all Products or other materials (such as: analyzes, functional designs, reports, quotations etc.) held by Fertilily.com presented to the Consumer or made available in any way whatsoever, are exclusively owned by Fertilily.com or its suppliers, and Consumer obtains the user rights expressly granted under these Terms and Conditions, unless a written document signed by Fertilily.com and the Customer expressly states otherwise.

2. The customer is aware that the Products and / or other materials as referred to in paragraph 1 of this article may contain confidential information and trade secrets of Fertilily.com or its suppliers, and the Consumer undertakes to keep these Products and / or other materials confidential and not to disclose or use it to any third party.
3. The Consumer is not permitted to change the Products or to modify or copy the Products or any part thereof.
4. Fertilily.com declares that to the best of its knowledge, the Products do not infringe any applicable intellectual property rights of third parties. In the event of a claim by third parties with regard to infringement of such rights, Fertilily.com may, if necessary, replace or change the relevant Product or terminate the Agreement in whole or in part. The customer is only entitled to terminate the Agreement insofar as maintaining the Agreement cannot reasonably be expected of him.
5. The Customer shall immediately inform Fertilily.com of any third-party claim with regard to an infringement of intellectual property rights with regard to the Products in the event of such a claim, and only Fertilily.com is entitled to lodge a defense against this – also on behalf of the Consumer – or to take legal action against that third party or to reach an amicable settlement with that third party. The consumer will refrain from such measures, insofar as this can reasonably be expected of him. In all cases, Consumer and Fertilily.com will strive to cooperate.

Article 18 – Complaints
1. The Consumer must file a complaint about a defective product and / or service, as complete and clearly described as possible, and submit to the Entrepreneur via support@fertilily.com within a reasonable time after the Consumer has discovered the defect or should reasonably have discovered it. Informing Entrepreneur within a month after the discovery is in all cases timely.
2. The Consumer must always give the Entrepreneur the opportunity to take notice of complaints and to arrange for replacement or repair of the delivered goods.
3. If replacement or repair as referred to in the previous paragraph is not possible, or cannot be demanded from the Entrepreneur, or if the Entrepreneur does not take care of replacement or repair within a reasonable period and without serious effort, then the Consumer is entitled to terminate the Agreement.

Article 19 – Applicable law, competent court
1. All disputes relating to these Terms and Conditions, as well as every Agreement, are governed exclusively by Dutch law.
2. All disputes, unless otherwise required by law, will be submitted exclusively to competent court in Amsterdam.

Article 20 – Changes
1. The above provisions do not apply in case the Consumer and the Entrepreneur have agreed to deviate in favor of the General Conditions. It is advisable to make such agreements in writing.

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