General conditions of sale and delivery Wijlhuizen B.V.
As filed with the Chamber of Commerce in Arnhem.
1 Applicability
1.1 These conditions form part of all agreements and apply to all our (other) actions and legal acts and those of the buyer unless expressly agreed otherwise in writing.
1.2 Unless the nature or specific content of a provision in the terms and conditions dictates otherwise, the provisions of these terms and conditions also apply to agreements in which we do not act in the capacity of the seller.
1.3 We expressly reject the applicability of any general or specific conditions or stipulations of the Buyer. If, upon acceptance, the buyer refers to his own general conditions and these conditions consequently apply, Wijlhuizen B.V. shall not be bound.
1.4 If any provision of these terms and conditions should be null and void, annulled or non-binding, the other provisions of these terms and conditions shall nevertheless remain in force. Furthermore, any such ineffective provision must be converted into a provision with as much of the same purport as possible that is effective.
2 Offers, conclusion of agreements and product declarations and designations
2.1 Offers, quotations, prices and quotations, whether or not appearing in price lists, advertisements, internet and the like, are not binding on us and only apply as an invitation to the buyer to place an order.
2.2 An agreement only comes into being if and insofar as we accept an order from the buyer in writing or we execute an order. The same applies to amendments and supplements to any agreement and/or these terms and conditions.
2.3 If we perform any performance on request before full agreement has been reached on the price and payment terms for that performance, the buyer shall, subject to the provisions of Articles 3 and 5, pay us for it in accordance with the rates then in force with us.
2.4 All our specifications of numbers, sizes, weights and/or other indications of the products are made with care but we cannot guarantee that no deviations will occur in this respect.
Catalogues, drawings, photos or other illustrations and descriptions provided by us or by our suppliers are for general information only and do not oblige us to deliver in accordance with the sizes, weights or technical details stated therein. Only when the buyer proves that the products delivered deviate from our specifications or from the drawings, photos, models or other illustrations to such an extent that he can no longer reasonably be obliged to take delivery thereof, the buyer shall be entitled to dissolve the contract, but only insofar as such dissolution is reasonably necessary.
3 Prices
3.1 All our prices are expressed in euros and exclude sales tax.
3.2 Price increases resulting from government levies or charges, wage increases or exchange rate rises which come into force after the agreement has been concluded will be passed on to the buyer. If a price increase as referred to above is applied, the buyer shall be entitled to cancel the concluded purchase agreement insofar as it has not yet been executed, provided that he gives notice of his decision to that effect in writing within ten days of receipt of the notification of the price increase.
3.3 For repair orders, we cannot provide a binding quotation in advance; any prices quoted can only be regarded as guide prices.
4 Delivery
4.1 The place of delivery shall be that of the warehouse used by us, unless otherwise agreed.
4.2 Deliveries up to and including a net value of €250 excluding VAT shall be made without postage. If the buyer fails to give timely instructions as to the method of shipment, we shall be free to choose the mode of transport. Orders from a net value of €250,- excluding VAT will be delivered carriage paid, whereby the choice of transport within the Netherlands will be determined by us.
4.3 Deliveries for export up to and including a value of € 500,- excluding VAT shall be made carriage paid, ex house. For deliveries above € 500, we shall charge shipping costs depending on the value of the goods to be delivered and the country of destination. This shall be laid down separately with the buyer in our offers or quotations. Express shipments at the request of the buyer and shipments of repairs carried out by us shall not be free of charge.
4.4 For orders up to a net value of €250 excluding VAT, we reserve the right to charge an order handling fee of €10 and not to accept orders below a net value of €12.50 excluding VAT.
4.5 Charged packaging costs will be credited in full upon carriage paid return of the packaging in good condition.
4.6 We are entitled to store products that cannot be transported to their destination for reasons beyond our control at the buyer’s expense and risk and to demand payment of the purchase price as if delivery had taken place, as well as the storage costs, without prejudice to the provisions of Article 5.
4.7 Should the buyer fail to take delivery of the products on time, he shall be in default without notice of default. We shall then be entitled to store the products at the expense and risk of the buyer or to sell them to a third party. The Buyer shall still owe the purchase price, increased by storage and any other costs, but reduced, where applicable, by the net proceeds of the sale to a third party. Article 5 shall apply without prejudice in this situation.
4.8 All products, including those sold carriage paid, are transported from our warehouses at the buyer’s or consignee’s risk, even if the carrier requires a statement on the consignment note for our consignments that the shipper is responsible for any damage during transport.
4.9 If the delivery term is exceeded, the buyer shall not be entitled to any compensation in this respect. Nor shall the buyer in that case be entitled to dissolution or termination of the agreement, unless exceeding the delivery term is such that he cannot reasonably be required to maintain the relevant part of the agreement.
The buyer is then entitled to rescind or cancel the agreement for the part for which it is strictly necessary, provided he notifies us of this in writing and without prejudice to our right to still deliver the relevant products to the buyer within three weeks of receiving the notification.
4.10 Orders or parts of orders which cannot be delivered immediately shall, unless the buyer stipulates otherwise in advance, be delivered as soon as possible.
4.11 If purchased with delivery on call, the buyer shall set the call such that all products have been called within 6 months of the conclusion of the contract, unless another call period has been agreed in writing. If the buyer does not call or does not call on time, we are entitled to deliver the remaining products at once and to demand immediate payment, or – after summons within a period of at least 8 days – to unilaterally dissolve the agreement and to make an agreement on compensation for the damage suffered by us, including lost profits.
4.12 We are entitled to deliver in parts. With regard to delivery by instalments, the provisions applicable to the delivery of the entire order shall be applied in full. This applies in particular with regard to the deadline for payments and claims.
5 Credit limitation surcharge
5.1 The invoice amount may be increased by us by a credit limitation surcharge specified separately in the invoice.
6 Payment
6.1 All payments must be made within 30 days of the invoice date and are strictly net, unless otherwise agreed in writing by us.
6.2 All other amounts charged to the buyer must be paid without discount, deduction or set-off.
6.3 Before (further) performance, we are entitled to demand from the buyer that the purchase price is paid in advance or that the buyer provides proper security, up to the amount that we may claim from the buyer. We are also entitled to deliver cash on delivery. If the cash on delivery is refused the buyer is obliged to reimburse us for all costs resulting from this.
6.4 Any amount received from the buyer will first be applied to settle any claims we may have against the buyer in respect of which no retention of title has been made. Thereafter, any amount received from the buyer shall first be applied to settle any interest and costs as referred to in 6.6 and 6.9 and thereafter always to settle the longest outstanding invoice.
6.5 The buyer shall owe interest, without further notice of default, on all sums not paid by the last day of the payment period from that day onwards, and for each month or part thereof 1/12 part of an interest rate equal to the promissory note discount rate of Nederlandse Bank N.V. plus 3% per annum. At the end of each month, the interest due will be added to the principal amount for the purpose of calculating the interest for (the part of) the following month.
6.6 If the buyer has not paid the amount and interest due even after the expiry of a further payment term set by registered letter, the buyer shall 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 applicable at the time of the collection measure taken. However, the costs will be at least €150 and are exclusive of the turnover tax due. Judicial costs will be the actual costs.
7 Returns and submission for assessment
7.1 Goods may be returned only after prior written agreement. All returns must be sent to us carriage paid and at the sender’s risk. Return shipments must be accompanied by a statement of the invoice number with which they were delivered by us.
7.2 When returning products delivered in accordance with the order, we reserve the right to apply a deduction of a 10% handling fee before crediting the value. Such returns will only be accepted on carriage paid delivery.
7.3 For returns related to stock screening, we will credit the buyer for the prices paid minus a percentage set by us. This percentage depends on the inventory code linked to the article at the time of return according to our current price list. These percentages will be determined by us each year for each current status code and are freely available to the buyer. If the buyer returns goods in connection with screening, we assume that the buyer has agreed to our percentage to be deducted.
7.4 We reserve the right to deal at our own discretion with used products which have been sent to us for evaluation or for the provision of a repair quotation and for which no order for their repair or return has been issued three months after our comments on the evaluation or quotation and after a reminder from us, respectively to scrap them.
8 Complaints
8.1 We shall only consider complaints about products delivered by us if these are submitted to us in writing within eight days of receipt of the products, stating the invoice and packing slip number and reasons. Products already delivered shall not be taken back by us without our written consent and subject to the provisions of article 7.
8.2 After the discovery of any defect, the buyer shall be obliged to immediately cease the use, treatment, processing or installation of the relevant products.
8.3 The buyer shall be obliged to lend us all cooperation in investigating complaints about the products. The buyer has no right to complain about products that cannot be inspected by us.
8.4 Defects regarding an individual batch of products, which is part of a multi-part delivery, shall only entitle the buyer to dissolve the entire agreement if the buyer cannot reasonably be required to maintain the remaining part of the agreement.
8.5 The buyer may not assert any claims against us regarding defects in products as long as the buyer has not fulfilled any obligations not directly related thereto.
8.6 If the buyer does not, with due observance of the foregoing, complain correctly and justifiably in due time, within 3 months, regarding defects of a product, we shall not be liable.
9 Warranty and liability
9.1 We guarantee to the buyer that the products will function properly for 6 months after delivery, provided that they are used normally and carefully and that all instructions given for the use of the products and other guarantee regulations included in the agreement, the terms and conditions or in the guarantee certificate are strictly and fully complied with under normal use. The guarantee only applies if the seals affixed to the products have not been broken and, in the case of products to which no seals have been affixed, no repairs or other work have been carried out on them by others.
9.2 If we deliver products to the buyer which we have obtained from our supplier, we shall never be held to a longer-lasting or otherwise more extensive guarantee or liability vis-à-vis the buyer than that to which we are entitled vis-à-vis our supplier.
9.3 If a claim has been submitted in time, correctly and in accordance with the provisions of article 8, and it has been sufficiently demonstrated in our reasonable opinion that the products do not function properly, we shall have the option of either supplying new products free of charge in exchange for the return of the products found to be faulty, or of repairing the products in question properly, or crediting the products in question. By fulfilling the aforementioned performances, we shall be fully discharged in respect of our warranty obligations and shall not be liable for any further compensation or damages.
9.4 The products remain at the full risk of the buyer in the event that repair activities are carried out by us on the products, unless the repair is the result of a defective performance by us and the buyer cannot reasonably be expected to insure the products for the above risk.
9.5 Our liability to the buyer in respect of delivered products is limited per event (where a connected series of events counts as one event) to the price of the relevant delivered product (excluding VAT).
9.6 We will not invoke the limitation of liability in 9.5 if the damage in question was caused by intent or gross negligence on our part or our managerial staff.
9.7 Except in the event of gross negligence or wilful misconduct by our managerial staff, the buyer shall indemnify us against all claims by third parties, for whatever reason, in respect of compensation for damage, costs or interest related to products or arising from the use of the products.
10 Retention of title
10.1 Ownership of the products, notwithstanding the actual delivery, shall not be transferred to the Buyer until the Buyer has paid in full all that it owes or will owe to us in respect of products delivered or to be delivered under the agreement, including the purchase price, any surcharges, interest, taxes and costs owed pursuant to these terms and conditions or the agreement, as well as any work carried out or to be carried out pursuant to such agreement.
10.2 Before ownership of the products is transferred to the buyer, the buyer is not authorised to alienate or encumber the goods, even if this is generally the normal purpose of the goods. Upon violation of this prohibition, the purchase price, regardless of the payment conditions, shall be immediately due and payable in full.
10.3 We are irrevocably authorised by the buyer to take back (or have taken back) the products delivered under retention of title without any judicial intervention, summons or notice of default. Repossession under retention of title shall not dissolve the contract unless we notify the Buyer thereof. If the purchaser resells or processes or mixes the products delivered under retention of title, he does so as representative and under the obligation – insofar as necessary – to transfer all his rights to us, without this reducing his obligations to us.
11 Deposit scheme
11.1 Upon delivery, with respect to those products, where this is stated on the price list, a deposit regulation applies. This arrangement may be on the basis of input tax with a deposit or post-tax with it.
11.2 In the event of input tax, the buyer must pay a price for the product plus a deposit. The deposit will be refunded upon return of the respective product.
11.3 The regulation of after-taxation is based on the fact that, the price stated in the price list assumes that upon delivery of the ordered product, a used similar product is returned. On this basis, the price stated in the price list is: the purchase price excluding the applicable deposit.
11.4 In the event of backloading, after delivery of the products as stipulated in these terms and conditions or in the manner agreed, the products to be replaced by the ordered products must be returned to us, with the transport costs being borne by the buyer. If the products to be returned have not reached us within one month after delivery of the new products, the buyer will be given the opportunity to return those products for another 14 days.
12 Force majeure
12.1 If we are unable to fulfil our obligations to the buyer due to force majeure such as war, threat of war, civil war, riots, hostage-taking, acts of war, fire, water damage and flooding, strikes, factory sit-ins, lockouts, lack of labour force or raw materials, defects in machinery or installations, disruption in the supply of energy, among others, those obligations shall be suspended for the duration of the force majeure situation and/or the agreement shall be dissolved by means of a written notification to the buyer for that part of the agreement that cannot be performed.
12.2 If, as a result of force majeure, any of our obligations is suspended for a period of (in total) more than one calendar month, we shall be entitled to adjust the delivery time and price to the circumstances prevailing at that time or to cancel the agreement without being liable to pay any compensation to the buyer. If the buyer gives us written notice to that effect, we shall be obliged to declare ourselves in default within eight days of receipt of the notice, failing which the agreement shall be dissolved without the buyer being able to enforce any claims against us.
13 Termination
13.1 If the buyer fails to properly or timely fulfill any obligations arising from any agreement within a set period or otherwise in a timely manner, the buyer is in default, and we are entitled, without notice of default or judicial intervention:
to suspend the execution of that agreement and directly related agreements until payment is sufficiently secured; and/or
» to terminate that agreement and directly related agreements in whole or in part; all without prejudice to our other rights under any agreement with the buyer.
» and without us being obliged to pay any compensation.
13.2 In the event of (provisional) suspension of payments, bankruptcy, cessation, or liquidation of the buyer’s business, all agreements with the buyer will be automatically terminated by operation of law, unless we notify the buyer within a reasonable time that we require the fulfillment of (a part of) the relevant agreement(s), in which case we are entitled, without notice of default:
» To suspend the execution of the relevant agreement(s) until payment is sufficiently secured; and/or
» To suspend all our obligations towards the buyer; all without prejudice to our other rights under any agreement with the buyer and without us being obliged to pay any compensation.
13.3 In the event of an occurrence as referred to in 13.2 or 13.1, all our claims against the buyer, as well as any such claims under the relevant agreement(s), shall become immediately and fully due and payable, and we shall be entitled to reclaim the relevant products. In such a case, we and our authorized representatives shall be entitled to enter the buyer’s premises and buildings to take possession of the products. The buyer is obliged to take the necessary measures to enable us to exercise our rights.
13.4 Except in the case of a consumer purchase, the applicability of Article 6:278 of the Dutch Civil Code is expressly excluded if we terminate any agreement with the buyer or otherwise initiate a reversal as referred to in Article 6:278, paragraph 2 of the Dutch Civil Code.
14 Prohibition on Use, Confidentiality, and Similar Matters
14.1 All images, samples, drawings, or other documentation provided for the purpose of an order or quotation remain our property. The buyer is strictly prohibited from reproducing, imitating, using, or disclosing these materials or the products they pertain to to third parties without our prior written consent, deze te vermenigvuldigen, deze of de producten waarop deze betrekking hebben na te maken, deze anderszins te gebruiken of deze aan derden te overhandigen of te tonen.
15 Applicable Law, Competent Court
15.1 Dutch law applies to these terms and to all offers, deliveries, or agreements.
15.2 Unless mandatory national or international legal rules prescribe otherwise, all disputes between the parties shall, at the choice of the initiating or requesting party, be submitted to the competent court in Arnhem or another court that is competent under national or international rules.
