Terms and conditions of supply
General terms and conditions of sale and supply of Wijlhuizen B.V.
As filed with the Chamber of Commerce in Arnhem.
1 Applicability
1.1 These terms and conditions form part of all agreements and apply to all our (other) acts and legal acts and those of the purchaser unless expressly agreed otherwise in writing.
1.2 Unless the nature or the specific contents of a provision of the terms and conditions prevent this, the provisions of these terms and conditions will also apply to agreements in the course of which we do not act in the capacity of the seller.
1.3 The applicability of any general or specific terms and conditions or clauses of the purchaser are expressly rejected by us. If the purchaser refers during acceptance to the purchaser’s personal general terms and conditions and these general terms and conditions apply as a result thereof, Wijlhuizen B.V. will not be bound thereto.
1.4 If any provision of these terms and conditions appear to be null and void, are declared void, or appear to have no binding effect, the other provisions of these terms and conditions will nevertheless remain in effect. Furthermore, such an unworkable clause must be converted into a clause with as much as possible the same meaning and effect, which will be workable.
2 Offers, the coming into effect of agreements and statements and specifications of products
2.1 Offers, tenders, prices and quotations, whether or not appearing in price lists, adverts, the internet and suchlike, will not bind us and will only apply as an invitation to the purchaser to place an order.
2.2 An agreement only comes into effect if and insofar as we accept an order from the purchaser in writing or if we execute an order. The same applies to amendments of and addendums to any agreement and/or these terms and conditions.
2.3 If we execute any goods and services upon request prior to reaching full consensus regarding the price and payment terms for these goods and services, the purchaser will pay us for these goods and services, with due regard to the provisions of articles 3 and 5, in conformity with the rates applicable to us in that case.
2.4 All our statements of numbers, measurements, weights and/or other specifications of the products have been made with due care, nevertheless we cannot guarantee that no derogations will occur with regard to this.
The catalogues, drawings, photographs, or other images and descriptions provided by us or by our suppliers will only serve for general information and will not oblige us to deliver in accordance with the measurements, weights or technical details appearing therein. Only if the purchaser demonstrates that the delivered products derogate to such an extent from our statements, or from the drawings, photographs, or other images, that the purchaser cannot reasonably be obliged to purchase these, will the purchaser have the right to terminate the agreement, however this will be only insofar as this termination is reasonably necessary.
3 Prices
3.1 All our prices are expressed in Euros and are excluding turnover tax.
3.2 Price increases ensuing from levies or charges imposed by authorities, pay rises, or exchange rate increases, which come into force after the coming into effect of the agreement, will be charged on to the purchaser. If a price increase as referred to above is applied the purchaser will be entitled to cancel the concluded purchase agreement insofar as not yet performed, provided that the purchaser informs us in writing of this decision within ten days after receipt of the notification of the price increase.
3.3 We cannot provide any binding quotation in advance for repair instruction; any prices stated can only be regarded as guide prices.
4 Delivery
4.1 The warehouse used by us will apply as the delivery location, unless agreed otherwise.
4.2 Deliveries up to and including a net value of €250 excluding VAT will take place carriage paid. If the purchaser does not provide instructions in a timely manner with regard to the manner of dispatch we will be free in the choice of transport. Orders from a net value of € 250 excluding VAT will be delivered carriage paid, whereby the choice of the transport within the Netherlands will be determined by us.
4.3 Deliveries for the purpose of export up to and including a value of € 500 excluding VAT will take place carriage paid ex works. We charge dispatch costs for deliveries above € 500, depending on the value of the goods to be delivered and the country of destination. All this will be recorded separately with the purchaser in our offers or tenders. Urgent consignments upon the request from the purchaser and consignments of repairs executed by us will not take place carriage paid.
4.4 For orders up to a net value of € 100 excluding VAT we retain the right to charge order handling charges to the amount of € 7.50 and we retain the right to refuse orders of a net value that is less than € 12.50 excluding VAT.
4.5 The charged packaging costs will be credited in full after the return carriage paid of the packaging in a good state of repair.
4.6 We have the right, with regard to products that cannot be transported to the destination location due to causes beyond our control, to store these products at the purchaser’s expense and risk and to require payment of the purchase price as if the delivery has taken place, as well as the storage costs, all this without prejudice to the provisions of article 5.
4.7 If the purchaser does not take delivery of the products in a timely manner the purchaser will be in default without the requirement of any notice of default. In that event we will be entitled to store the products at the purchaser’s expense and risk or to sell these products to a third party. The purchaser will continue to owe the purchase price, plus the storage costs and any other costs, however where applicable reduced by the net proceeds of the sale to this third party. Article 5 will remain in full force in this situation.
4.8 All products, also the products sold carriage paid, will be transported from our warehouse at the purchaser’s or the recipient’s risk, even if the transport provider demands the statement in the consignment note for our consignments that damage during the transport will be at the sender’s expense.
4.9 The purchaser has no right to any compensation with regard to the exceeding of the term of delivery. In that event the purchaser will also not have any right to termination of the agreement, unless the exceeding of the term of delivery is such that it cannot reasonably be required from the purchaser to maintain the part concerned of the agreement.
In that event the purchaser will be entitled to terminate or cancel the agreement for the part for which this is strictly necessary, provided that the purchaser has informed us of this in writing, and without prejudice to our right to still deliver the products concerned to the purchaser within three weeks after receipt of the notification.
4.10 Orders or parts of orders, which cannot be immediately delivered, will be delivered as soon as possible, unless the purchaser determines otherwise in advance.
4.11 If the purchase is made with delivery on a call-off basis the purchaser must set out the call-off in such a manner that all products will be called off within 6 months after the coming into effect of the agreement, unless another call-off deadline is agreed to in writing. If the purchaser does not call off in a timely manner we will be entitled to deliver the remaining products in one delivery and to claim immediate payment, or as the case may be – after demand with a period of at least 8 days – to unilaterally terminate the agreement and to claim compensation for the damage suffered by us, including lost profits.
4.12 We will be entitled to deliver in parts. The provisions that apply to the delivery of the entire order fully apply with regard to the delivery in parts. This applies in particular with regard to the periods for payments and complaints.
5 Late payment surcharge
5.1 We can increase the invoice amount by a late payment surcharge set out separately in the invoice.
6 Payment
6.1 All payments must be made within 30 days after the invoice date and are strictly net, unless agreed otherwise by us in writing.
6.2 All other amounts charged to the purchaser must be paid without reduction, deduction or setoff.
6.3 We will be entitled, prior to giving (further) performance, to demand from the purchaser that advance payment of the purchase price, or that proper provision of security, takes place with a maximum of the amount that we might be able to claim from the purchaser. We will also be entitled to deliver cash-on-delivery. In the event of refusal of the consignment with cash-on-delivery the purchaser will be obliged to compensate us for all costs ensuing therefrom.
6.4 Every amount that is received from the purchaser will firstly serve to settle the claims that we might have against the purchaser with regard to which no retention of title was made. Thereupon every amount received from the purchaser will firstly serve to settle all possibly owed interest and costs as referred to in articles 6.6 and 6.9 and subsequently always to settle the invoice that has been outstanding the longest.
6.5 The purchaser will owe without further notice of default, interest over all amounts that are not paid, no later than on the last day of the payment term, from the day on which the interest is owed and this will be for each month or part thereof for a 1/12 part of the interest equal to the promissory note discount rate of the Nederlandse Bank N.V. plus 3% per year. The interest due at the end of each month will be added to the principal sum for the calculation of the interest over (the part of) the next month.
6.6 If the purchaser also has not paid the amount owed and the interest after the expiry of a further payment term set out in a registered letter, the purchaser will be obliged to reimburse us for all extrajudicial and judicial costs. The extrajudicial costs to be reimbursed will be calculated on the basis of the collection rate of the Netherlands Bar Association that was applicable at the time of taking the action to recover the debt. However, the costs will amount to at least € 150 and are excluding the owed turnover tax. The judicial costs concern the actual costs.
7 Return consignments and sending for assessment
7.1 Goods can be exclusively taken back after prior agreed approval in writing. All return consignments must be dispatched to us carriage paid and at the sender’s risk. Return consignments must be accompanied by a statement of the invoice number with which these were delivered by us.
7.2 We retain the right for the return consignment of products delivered in conformity with the order to apply a deduction of 10% for administrative costs prior to crediting the value. Such return consignments will only be accepted in the event of dispatch carriage paid.
7.3 We will credit the purchaser for the paid prices minus a percentage recorded by us for return consignments related to the screening of the stock. This percentage is depending on the saleability code, which is linked to the item at the time of the return thereof in accordance with our price list applicable at that time. These percentages will be recorded by us annually for each saleability code and can be freely requested by the purchaser from us. If the purchaser returns goods related to screening we will presume that the purchaser has agreed to our percentage to be deducted.
7.4 We retain the right with regard to used products, which are dispatched to us for our assessment thereof, or for providing a repair quotation, and for which three months after our assessment comments, or quotation, and after a reminder given by us, no instructions for repair or return are provided, to act at our discretion, or to scrap these.
8 Complaints
8.1 Complaints regarding products delivered by us will only be dealt with by us if these are submitted to us within eight days after receipt of the products subject to statement of the invoice and packing slip number and subject to stating reasons in writing. Products that have already been delivered by us will not be taken back by us other than after a statement of agreement in writing on our part and with due regard to the provisions of article 7.
8.2 Following the discovery of any defect the purchaser will be obliged to promptly cease the use, treatment, processing or installation of the products concerned.
8.3 The purchaser will be obliged to provide us with full cooperation regarding the inspection of the complaint related to the products. The purchaser has no right to complain with regard to products regarding which no inspection of the complaint can be conducted by us.
8.4 Defects related to a separate consignment of products, which forms part of a delivery consisting of one of several consignments will only give the purchaser the right to termination of the entire agreement if the maintaining of the remaining part of the agreement cannot reasonably be required from the purchaser.
8.5 The purchaser cannot enforce claims against us with regard to complaints concerning defects of products for as long as the purchaser has not fulfilled any obligation towards us, which is directly related thereto.
8.6 If the purchaser has not made a complaint with due regard to the above in a timely manner, within 3 months, correctly and justifiably with regard to defects of a product, we will not be liable.
9 Guarantee and liability
9.1 We guarantee towards the purchaser that during 6 months after the delivery the products will function properly, provided that these are used normally and carefully and all instructions and other guarantee regulations provided for the use of the products included in the agreement, in the terms and conditions, or as the case may be in the guarantee certificate, are strictly and fully complied with during normal use. The guarantee will only apply if the seal affixed to the products has not been broken and in the event that it concerns products to which no seal has been affixed, and no repairs or other work has been executed thereon by other parties.
9.2 If we deliver products to the purchaser, which we have acquired from our supplier, we will never be obliged to a longer lasting, or otherwise further-reaching guarantee or liability vis-a-vis the purchaser than that which we can make claim to vis-a-vis our supplier.
9.3 If a complaint is made in a timely manner and in accordance with the provisions of article 8 and it is demonstrated satisfactorily, in our reasonable opinion, that the products do not function properly, we have the choice to deliver the products that appeared to be inferior again and free of charge against the return of the products that appeared to be inferior, or to repair the inferior products concerned, or to credit for the products concerned. Due to the fulfilment of the goods and services referred to above we will be fully discharged with regard to our guarantee obligations and we will not be obliged to any further payment (of compensation of damage) whatsoever.
9.4 The products will remain fully at the purchaser’s risk in the event that repair work is executed by us on the products, unless the repair is the result of defective performance on our part and it cannot be reasonably expected from the purchaser that the purchaser insures the products against the above risk.
9.5 Our liability towards the purchaser with regard to the delivered products is limited per incident (whereby a related series of incidents will apply as one single incident) to the price of the delivered product concerned (excluding VAT).
9.6 We will not rely on the limitation of liability in 9.5 if the damage concerned is caused by intention or gross negligence on our part or on the part of our managerial staff.
9.7 Except in the event of gross negligence or intention on the part of our managerial staff, the purchaser will indemnify us against all claims by third parties, on whatsoever basis, with regard to compensation of damage, costs or interest, related to the products, or as the case may be ensuing from the use of the products.
10 Retention of title
10.1 The ownership of the products only transfers, notwithstanding the actual delivery, to the purchaser after the purchaser has paid in full all that which the purchaser owes or will be owed to us with regard to the products delivered or to be delivered pursuant to the agreement, including the purchase price, any surcharges, interest, taxes and costs pursuant to these terms and conditions or the agreement, as well as pursuant to any work executed or to be executed pursuant to such an agreement.
10.2 The purchaser is not entitled to dispose of or to encumber the goods prior to the transfer of the ownership of the products to the purchaser, not even if this is generally the usual intended purpose of the goods. In the event of breach of this prohibition the purchase price will be immediately due and payable in full regardless of the payment terms.
10.3 We are irrevocably authorised by the purchaser to take back (have taken back) the products delivered subject to retention of title, without any judicial intervention, demand, or notice of default. The agreement will not be terminated by taking back the goods subject to retention of title, unless we inform the purchaser of this. If the purchaser sells on, or processes, or mixes the products delivered subject to retention of title, the purchaser will do this as the representative, and subject to the obligation – insofar as necessary – to transfer all the purchaser’s rights to us, without this reducing the purchaser’s obligations towards us.
11 Deposit arrangement
11.1 A deposit arrangement applies to the delivery with regard to the products whereby this is set out in the price list. This arrangement can be on the basis of pre-charging with deposit or subsequent charging therewith.
11.2 In the event of pre-charging, the purchaser must pay the price for the product plus the deposit. The deposit will be repaid on the return of the product concerned.
11.3 The arrangement for subsequent charging is based on the presumption that the price set out in the price list at the delivery of the ordered product includes the fact that a used and similar product will be returned. On the basis thereof the price set out in the price list is: the purchase price excluding the applicable deposit.
11.4 In the event of subsequent charging, after the delivery of the products as determined in these terms and conditions, or in the manner agreed, the products that are replaced by the ordered products must be returned to us, whereby the transport costs will be at the purchaser’s expense. If the products to be returned have not been received by us within one month after the delivery of the new products the purchaser will be provided with the opportunity to return these products within 14 days.
12 Force majeure
12.1 If due to force majeure such as war, threat of war, civil war, riot, hostage taking, wilful damage, fire, water damage and floods, industrial actions, factory sit-ins, exclusion, lack of workers or raw materials, defective machinery, or installations, or breakdown of energy supply, we cannot fulfil our obligation towards the purchaser, these obligations will be suspended for the duration of the force majeure situation and/or the agreement will be terminated by means of a notice in writing to the purchaser for that part of the agreement that cannot be performed.
12.2 If any obligation on our part is suspended resulting from force majeure for a period of (in total) more than one calendar month, we will be entitled to adjust the delivery period and the price to the circumstances applicable in that case, or as the case may be to cancel the agreement with being obliged to any compensation towards the purchaser. If the purchaser gives us a demand in writing for this purpose we will be obliged to explain ourselves within eight days after receipt of the demand, in the absence of which the agreement will be terminated without the purchaser being able to enforce any claim against us.
13 Termination
13.1 If the purchaser does not properly or does not within a period set out, or otherwise does not fulfil any obligation in a timely manner, which might ensue for the purchaser under any agreement, the purchaser will be in default and we will be entitled without notice of default or judicial intervention:
» to suspend the performance of this agreement and agreements directly related thereto until payment has been sufficiently secured; and/or
» to terminate, wholly or in part, the agreement and agreements directly related thereto; all this without prejudice to our other rights under whatsoever agreement with the purchaser
» and without us being obliged to any compensation.
13.2 In the event of (provisional) moratorium, bankruptcy, cessation, or liquidation of the purchaser’s business, all agreements with the purchaser will be terminated by operation of law, unless we inform the purchaser within a reasonable period that we require specific performance of (a part of) the agreement(s) concerned, in which case we will be entitled without notice of default:
» To suspend the performance of the agreement(s) concerned until payment has been sufficiently ensured; and/or
» To suspend all our obligations vis-a-vis the purchaser; all this without prejudice to our other rights under whatsoever agreement with the purchaser, and without us being obliged to pay any compensation.
13.3 In the event that an incident occurs as referred to in 13.1 or 13.2 all our claims against the purchaser, as well as claims on the basis of the agreement(s) concerned will be immediately due and payable in full and we will be entitled to take back the products concerned. In that event we and our authorised representative(s) will be entitled to enter the purchaser’s sites and buildings in order to take possession of the products. The purchaser will be obliged to take the necessary measures in order to provide us with the opportunity to effectuate our rights.
13.4 With the exception of a consumer sale the applicability of Section 278 Book 6 of the Civil Code is expressly excluded if we terminate any agreement with the purchaser, or otherwise reverse this as referred to in Section 278 Book 6 subsection 2 of the Civil Code.
14 Prohibition of use, confidentiality and suchlike
14.1 All images, samples, drawings or other documentation provided for the purpose of an order or offer remain our property. The purchaser is strictly prohibited without our prior permission in writing from making multiple copies thereof, to imitate these or the products that these relate to, to use these otherwise, or to hand or show these to third parties.
15 Applicable law, court with competent jurisdiction
15.1 The law of the Netherlands applies to these terms and conditions and to all offers, deliveries, or agreements.
15.2 Insofar as national or international rules of law do not mandatorily prescribe otherwise, all disputes between parties will be submitted at the choice of the parties issuing the summons or the parties making the application to the court with competent jurisdiction in Arnhem, or otherwise the court with competent jurisdiction on the basis of national or international rules of law.