GENERAL TERMS AND CONDITIONS FOR THE DELIVERY OF PRODUCTS BY WOLTERS,
having its registered office in Enter, the Netherlands, registered with the Chamber of Commerce for Oost Nederland under number 06043685.
In these general terms and conditions the terms listed below have the following meaning:
Wolters: Wolters Kunststoffen- en Emballage Industrie B.V., a private limited liability company, Wolters Automotive B.V., a private limited liability company, Wolters Packaging Czech s.r.o., a private limited liability company, and all their affiliated companies;
The Purchaser: a natural person who or a legal entity that has concluded an agreement with Wolters;
Agreement: the agreement between Wolters and the Purchaser;
Products: products that Wolters sells and/or delivers to the Purchaser;
The Parties: Wolters and Purchaser.
1.1 These terms and conditions govern all requests for proposal, quotations, including offers, and all agreements for the sale and/or delivery of Products between Wolters on the one hand and the Purchaser on the other.
1.2 An Agreement between Parties shall not by implication or otherwise create any relationship between them other than the relationship between supplier and purchaser. No permanent relationship between the Parties shall be established, nor is one envisaged by virtue of the Purchaser placing an order to Wolters supplying Products, unless agreed otherwise between Parties in writing. Every order and delivery by Wolters shall apply in its own right. As such, Wolters shall always be entitled to decline any (further) supply to the Purchaser without citing reasons for doing so or, should there nevertheless be a permanent relationship between them, to terminate (Nederlands: opzeggen) it subject to a term of notice of two (2) months, such to apply subject to any other arrangements which the Parties have explicitly made with each other.
1.3 Any standard terms and conditions that the Purchaser applies or to which the Purchaser refers in any manner whatsoever are hereby explicitly rejected, unless Wolters has explicitly accepted them in writing.
1.4 All quotations and offers issued by Wolters are free of obligation and without engagement, even if they contain a term for acceptance.
1.5 All quotations or offers are based on the performance of the Agreement under normal working conditions and during normal working hours, unless the Parties agree otherwise in writing.
1.6 Quantities, weights or measurements, which are mentioned in price lists, catalogues, proposals and /or order confirmations from Wolters are always indicative and non-binding.
1.7 Any derogations from these terms and conditions must be explicitly agreed in writing. No rights may be derived from such derogations with respect to any legal relationships that are entered into at a later date.
1.8 In the event of any conflict between the provisions contained in the Agreement and the text of these terms and conditions, the provisions contained in the Agreement will prevail.
1.9 If any provision contained in the Agreement or terms and conditions is invalid or non-binding because it is contrary to mandatory provisions of law, the remaining provisions contained therein will continue to apply and the Parties will consult in order to replace the invalid or non-binding provision with a new provision that is valid and binding and whose legal effect is as close as possible to that of the invalid and non-binding provision, also in view of the nature and purpose of the Agreement.
2. Agreements and the Purchaser’s general obligations
2.1 An Agreement between Wolters and the Purchaser will be concluded only at the time at which Wolters accepts the order by telephone, EDI or in writing – including by e-mail – by duly authorised persons on behalf of -Wolters or at the time at which Wolters commences the performance of the Agreement. The Agreement replaces and supersedes all previous written or verbal proposals, correspondence, arrangements or other communications between the Parties with regard to the same order and/or delivery of Products.
2.2 Wolters is entitled to terminate the negotiations with the Purchaser and withdraw any offers that it has issued at any time, also immediately after acceptance, without being obliged to compensate the Purchaser for any costs or damages.
2.3 Wolters is authorised to reject any order placed by the Purchaser, in whole or in part.
2.4 The Purchaser will ensure that:
• Wolters obtains, in a timely manner, all useful and necessary information, documents and data that Wolters needs in order to perform the Agreement; and
• Wolters is informed about all information and circumstances that are useful and necessary in respect of the Agreement, among other things as a result of changes to the Purchaser’s policy and/or organisation and changes in its direct surroundings (including market surroundings).
2.5 Additional arrangements or amendments to the Agreement will only bind Wolters if these have been confirmed in writing by – duly authorised persons on behalf of – Wolters. Wolters may attach reasonable conditions to any such confirmation. The Purchaser acknowledges and accepts that so agreed amendments to the Agreement, may affect the agreed planning schedule. If an amendment to the Agreement is the result of a request or act on the part of the Purchaser, or of any other circumstances that can be attributed to the Purchaser, Wolters will be entitled to charge for the ensuing additional work or delivery on the basis of its customary rates as a supplementary or separate assignment or order for delivery of the Products.
2.6 Wolters is not obliged to assess the accuracy of notifications, drawings, calculations, auxiliary materials or any other information and data provided by the Purchaser. The Purchaser guarantees that all the information, documents, data and/or auxiliary materials it provides to Wolters are correct and complete. The Purchaser will be liable for any damages caused by that incorrect or incomplete information. Defects in the Products that are caused by incorrect and/or incomplete information and/or auxiliary materials (for example moulds) provided by the Purchaser can never be attributed to Wolters.
2.7 Wolters will be authorised to reject any order placed by the Purchaser, in whole or in part, without being obliged to compensate the Purchaser for any damages.
2.8 The Purchaser will be authorised to cancel an order, which was accepted by Wolters only if Wolters grants permission to do so and insofar as the Purchaser fully indemnifies Wolters and reimburses any and all costs that Wolters has already incurred.
2.9 The Purchaser is obliged at all times to cooperate in every way that can be reasonably expected of it in order to enable Wolters to comply with the Agreement in accordance with its obligations.
3.1 Unless the Parties agree otherwise in writing, the purchase price of the Products is exclusive of VAT and other government levies and, if applicable, exclusive of the costs related to transport, packaging, insurance, etc. 3.2 Prices of the Products are always on the basis of full truck load. Wolters will be entitled to charge the Purchaser a surcharge if the quantity of the Products ordered and to be delivered to the Purchaser is not sufficient to fill an entire lorry.
3.2 If after the Agreement is concluded, one or more of the relevant one of the cost factors determining the production and/or delivery of the Products increases or decreases is changed, Wolters will be entitled to increase or decrease the agreed price accordingly, even if that increase or decrease is caused by foreseeable circumstances (in the meaning of Section 6:258 of the Dutch Civil Code). Wolters will notify the Purchaser as quickly as possible and prior to the moment at which Wolters commences the performance of the Agreement, in writing regarding such an increase or decrease in the price.
3.3 Payments must be made in Euros.
3.4 Wolters will invoice the Purchaser upon delivery of the Products. The Purchaser is obliged to pay the purchase price within 30 days of the invoice date, unless otherwise agreed in writing. However, at Wolters’ sole discretion it will be entitled to demand advance payment of all or part of the purchase price, in which case Wolters will not deliver the Products until after that advance payment has been received.
3.5 The Purchaser is not authorised to suspend its payment obligations towards Wolters or to set off or deduct any alleged or actual claims against those of Wolters.
3.6 All payments that the Purchaser makes to Wolters will first be applied in respect of the interest and costs that the Purchaser owes Wolters and subsequently in respect of Wolters’ oldest outstanding invoice.
3.7 Any payment term is a strict deadline within the meaning of Section 6:83(a) of the Dutch Civil Code. If Wolters has not received full payment within the payment term, the Purchaser will be in default, without any demand or notice of default being required, in which case any and all claims against the Purchaser will be due and payable immediately and the Purchaser will owe statutory commercial interest (pursuant to Section 6:119a of the Dutch Civil Code) as from that time. In that event, Wolters will also be entitled to terminate the Agreement with immediate effect. Any and all judicial and extrajudicial costs that Wolters incurs as a result of the Purchaser failing to comply with its obligations (including payment obligations) will be paid by the Purchaser. If the Purchaser fails to pay the amount due plus the statutory commercial interest, Wolters will hand over the claim for collection, in which case the Purchaser will be obliged to pay any and all judicial and extrajudicial costs that Wolters incurs, however in any event not less than 15% of the total amount due .
3.8 When first requested to do so by Wolters, the Purchaser shall be required to (i) reserve – and effect where necessary – a non-possessory pledge on any claims which that the Purchaser has against any other party to serve as additional security or (ii) provide any other security, for all of the Wolter’s existing and future claims against the Purchaser on any grounds whatsoever.
3.9 All costs related to payment, including the provision of security, will be paid by the Purchaser.
4.1 Delivery will be made either ExWorks (EXW) (Incoterms 2020) from Wolters’ business site at the Vonderweg 31 in Enter, The Netherlands or from Wolters’ depot at the Vissershavenstraat in IJmuiden, the Netherlands. If the parties agree that Wolters will deliver the Products to another location such deliveries will be made Carriage Paid To (CPT) (Incoterms 2020) at the agreed destination.
4.2 Although Wolters will make every effort to comply with the delivery terms agreed, these are merely indicative and will in no event constitute strict deadlines within the meaning of Section 6:83(a) of the Dutch Civil Code. In the event of non-timely delivery, the Purchaser must provide written notice of default to Wolters and give Wolters a reasonable term within which to perform its obligations. The delivery times indicated by Wolters are based on the working conditions that apply at the time of the order confirmation. In any event delivery times will be extended for any delays for which Wolters cannot be held accountable.
4.3 If the agreed or, if applicable, extended (as referred to in Clause 4.2 of these terms and conditions) delivery time is exceeded, the Purchaser will not be entitled to dissolve the Agreement either in whole or in part or to claim compensation of any damages that the Purchaser has sustained.
4.4 If it is not possible to make delivery in the agreed manner as a result of causes for which Wolters cannot be blamed, Wolters will be entitled to charge the Purchaser the related costs, such as, but not limited to, additional transport costs and storage costs.
4.5 Extra expenses and costs, which Wolters incurs as a result of any late or extended delivered for which Wolters cannot be held accountable or thus requested by the Purchaser will be charged to the Purchaser separately, unless the Parties agree otherwise in writing.
5. Force majeure and hardship
5.1 In an event of force majeure, such as fire, explosion, break-down of plants, strike, lock-out, labor disputes, casualty or accident, lack or failure of transportation facilities, epidemic, lack or failure of sources of supply or labor, revolution, civil commotion, acts of public enemies, blockage or embargo or any law or order, proclamation, regulation, ordinance, demand or requirement of any national or local government or authority or any sub-division, authority or representative of any such authority and all events and circumstances which could not reasonably have been avoided or overcome by the affected party and that prevents or impedes a party from performing one or more of its contractual obligations under the Agreement, shall release Parties from the obligations under the Agreement, such performance shall be suspended during the period of delay caused by the force majeure, and this shall not constitute a breach of the Agreement.
5.2 The party claiming force majeure shall promptly inform the other party in writing and shall furnish within seven (7) days thereafter sufficient evidence of the occurrence and duration of such force majeure.
5.3 If the force majeure in question continues for more than three (3) months and materially adversely affects either party then, (i) the Party not invoking the force majeure may give written notice to the other party to terminate the Agreement and (ii) the Party invoking the force majeure may request the other party to release it from its obligations and to terminate the Agreement in mutual agreement, which will be discussed in good faith.
5.4 If at any time during the term of this Agreement there is a substantial change in the economic, technological or market conditions which will make the performance of this Agreement by either party unrealistic or exceedingly unfair, then the aggrieved party can request a meeting with the other party to agree on a fair adjustment of such terms. It is agreed that currency exposures such as changes to the value of the Euro shall not amount to hardship. If Parties fail to reach agreement within thirty (30), the party invoking this clause is entitled to terminate the Agreement or can request adaptation by the competent Court to adapt the Agreement with a view to restoring its equilibrium, as appropriate.
6. Retention of title and risk
6.1 All the Products that Wolters sells and/or delivers will remain its property until the Purchaser has complied with all its obligations under the Agreement, including any claim pursuant to a failure to comply with such Agreement, which includes any compensation, interest or costs. Until that time the Purchaser will be deemed to hold the Products exclusively for Wolters. The Purchaser may not transfer the ownership of the Products or deliver them, pledge them or otherwise transfer them as security.
6.2 The Purchaser shall undertake to store any Products which are subject to retention of title separately and to insure itself against fire, theft and third-party claims.
6.3 If the Purchaser fails to comply with its obligations after being given written notice, or if there are well founded reasons to fear that it will fail to do so, Wolters will be entitled to remove the Products that have been delivered (or to have them removed) from the place of business of the Purchaser or third parties that are holding the Products for the Purchaser. The Purchaser will be obliged to cooperate fully in this respect subject to a penalty of 10% of the outstanding amount, or a penalty as set out in article 14 of these terms and conditions, whichever has the highest amount, for each day that Purchaser does not cooperate fully.
7.1 With due observance of the limitations contained in these terms and conditions, Wolters only warrants that the Products will meet the specifications laid down in the Agreement or order confirmation and be suitable for the purpose for which they are manufactured, provided that all of Wolters’ instructions regarding the use of the Products have been strictly followed.
7.2 The warranty will lapse after the Product has been used once, and in any event after a period of twelve (12) months from delivery of the Product has elapsed.
7.3 This warranty shall not apply in the event that:
• changes are made to the relevant Products;
• a complaint is not submitted in accordance with article 8 of these terms and conditions;
• (alleged) defects are caused in whole or in part by raw materials, other materials or constructions that are chosen by the Purchaser or that Wolters has been obliged to use by any third party or as a result of government regulations.
• the Purchaser fails to comply with its obligations under the Agreement or under any other agreement with Wolters in full and in a timely manner.
7.4 In the event that the Purchaser files a complaint in accordance with article 8 of these terms and conditions, Wolters rules that the complaint is legitimate and the warranty applies, Wolter’s liability will always be limited to replacing the Product. The replacement of the Product will be limited to re-delivery, exclusive of freight charges. In the event of replacement, a new warranty will be granted for the replaced Products, which will commence on the day on which the Products have been delivered to the Purchaser.
8. Inspection and complaints
8.1 Upon delivery, the Purchaser will be obliged to inspect the Products to ensure that they are in accordance with the Agreement on the basis of the packing slip and that the Products are suitable for use for the purposes for which they were manufactured.
8.2 The Purchaser must notify Wolters in writing within seven (7) days after delivery if any visible defects or shortcomings are discovered, stating the packing slip number.
8.3 The Purchaser must notify Wolters in writing of any invisible defects within seven (7) days after they are discovered and in any event not later than 12 months after the Products are delivered, stating the packing slip number and invoice number.
8.4 Should Wolters acknowledge that any defect which the Purchaser reports in accordance with the provisions of this article is well-founded – such to be determined at Wolter’s discretion – the relevant Product must be returned to Wolters at Wolter’s request.
9.1 Without prejudice to the liability of Wolters as referred to in article 7 of these terms and conditions, Wolters is not liable on whatever legal basis and for any damages or losses caused by whatever reason and, except and insofar as provisions of applicable mandatory law stipulate that such liability cannot be excluded in a legally valid way. The onus of proof that the conditions of this exception to the limitation of Wolters’ liability are met in a particular alleged damage causing event is on the Purchaser.
9.2 Under no circumstances will Wolters be liable for damages caused by improper or unprofessional use of the Products. Improper use in any event includes use for purposes other than those for which the delivered Product was manufactured.
9.3 Under no circumstances will Wolters be liable for any indirect, consequential or intangible loss, which is deemed to include loss of earnings, a loss that has been suffered, foregone savings and any loss suffered due to the disruption of business or any other type of disruption and so forth.
9.4 If Wolters, without prejudice to the provisions contained in the preceding articles of these terms and conditions, is liable in any way, its liability is limited to the maximum amount that is paid out under its liability insurance in respect of the damage causing event.
9.5 Wolters hereby stipulates the applicability of all legal and contractual defences that it is entitled to invoke towards the Purchaser in order to contest its own liability, also on behalf of its subordinates and of those who are not its subordinates but for whom it can be held liable in accordance with the law.
9.6 The purchaser shall indemnify Wolters against any claim filed by another party in respect of damage or a loss in respect of which Wolters has excluded and/or limited its liability towards the Purchaser.
9.7 In case of any claim of any third party in respect of the Products, the Purchaser will immediately inform Wolters in respect of such claim and deliver all relevant information thereto. The Purchaser will undertake to collect and preserve any and all information and proof that can be of interest in relation to such claim. The Purchaser will follow eventual specific instructions of Wolters in respect hereof. Without prior written approval of Wolters the Purchaser shall not accept any liability in relation to any claim of any of its customers or any third party related to the (use of the) Products.
9.8 The Purchaser will sufficiently insure its liability against claims of its customers and any other third party in respect of the supply or use of the Products.
10. Additional work
10.1 In addition to delivering the Products, Wolters will perform additional work if the Parties have so agreed or if that ensues from the Agreement. These terms and conditions will apply in full in respect of any additional work. Additional work includes, but is not limited to, the development of moulds (or having moulds developed) or printing work. Such additional work will always be at the Purchaser’s risk and expense.
10.2 With respect to printing work, the Purchaser must approve the text, size, colours, etc. as printed on a paper sample. Wolters will provide the Purchaser with the proofs that been developed for the Purchaser’s approval. If Wolters has not received a written response within fourteen (14) days after it has submitted the proofs to the Purchaser, the Purchaser will be deemed to have approved the proofs. Nowithstanding the provisions of article 9 of these terms and conditions, Wolters will not be liable for any damage that the Purchaser sustains as a result of the performance of printing work on the basis of the proofs.
10.3 Without prejudice to the provisions contained in article 10.2, Wolters will also not be liable for minor deviations between the proof that the Purchaser has approved and the printing work that is performed.
10.4 If moulds are produced by or on behalf of Wolters, the Purchaser must approve the development of Products on the basis of those moulds. Nowithstanding the provisions of article 9 of these terms and conditions, Wolters cannot be held responsible for deviations in the sizes, etc. that fall within the tolerance levels applied by the actual, i.e. third party manufacturer of the moulds. In addition Wolters will not be liable for any damage that the Purchaser sustains as a result of Products produced on the basis of moulds.
11. Intellectual property rights
11.1 All intellectual property rights in relation to the Products and all information, drawings, depictions, models, moulds, stamps, lithographs and overviews in catalogues and price lists that are made or provided by Wolters, regardless of how these are represented, remain by Wolters. The Purchaser is not permitted to copy any of this information or to make them available to third parties without Wolters’ prior written consent.
11.2 The Purchaser warrants that (i) the manufacturing and supply of the Products according to the specifications, provided by the Purchaser and (ii) drawings, depictions, models, moulds, stamps, lithographs, provided by or made on the request of the Purchaser do not infringe any third party’s (intellectual property) rights. The Purchaser shall indemnify and hold Wolters harmless against any fines, losses, damages, costs and/or expenses arising from claims from third parties alleging an infringement on intellectual property rights of such parties.
11.3 The Purchaser is obliged to keep confidential any information that comes to its attention with respect to the intellectual property rights related to the Products.
11.4 Termination of the Agreement will not relieve the Purchaser or its legal successors from any obligation contained in this article.
12. Termination of the Agreement
12.1 Wolters will be entitled to terminate the Agreement effective immediately, and without any judicial intervention being required, under the following circumstances:
• if Wolters becomes aware of circumstances after the Agreement has been concluded that give Wolters well founded grounds to fear that the Purchaser will not comply with its obligations; or
• if the Purchaser fails to properly comply with its obligations pursuant to the Agreement or these terms and conditions after being given written notice of default and a reasonable term in which to comply.
In the above-mentioned cases Wolters’ claims against the Purchaser will be immediately due and payable without prejudice to Wolters’ right to claim full compensation.
12.2 The Purchaser will be given notice of termination of the Agreement as referred to in the preceding paragraph by means of a registered letter.
12.3 Without prejudice to the provisions contained in the preceding paragraph, the parties will be entitled to terminate the Agreement effective immediately, and without any judicial intervention being required, if:
• the other party has been granted a provisional or definitive suspension of payments, is declared bankrupt, offers its creditors an out-of-court settlement or otherwise loses free control over its assets in full or in part; or
• the other party ceases to exist as a result of a merger/demerger or is dissolved.
12.4 Each of the Parties undertakes to notify the other party immediately after one of the incidents referred to in the preceding paragraph arises in respect of it.
12.5 Termination of the Agreement will not relieve the Parties, their legal successors, or their employees, from any obligation contained in these terms and conditions, which by their nature also remain applicable after termination of the Agreement.
13.1 The Parties are obliged to keep confidential all confidential information that they have received in the context of the Agreement or from another source. Information will be considered confidential if the other party so states, or if that ensues from the nature of the information.
13.2 The Parties will observe the greatest possible duty of care when using information that has come to their attention in connection with the Agreement.
13.3 The Parties will oblige their employees to observe a duty of confidentiality with respect to all information having a confidential nature as described in paragraph 13.1 above and the activities of the Purchaser and its affiliated companies.
13.4 Upon the termination of the Agreement and after full payment has been made of any and all amounts due to the other party, the Parties and their employees will be obliged to immediately make available to the other party the confidential information, which they received the other party.
14. Penalty clause
In the event of a violation of one or more of the provisions contained in the Agreement or these terms and conditions, the Purchaser will owe Wolters a penalty, due on call, in the amount of EUR 25,000 (in words: twenty-five thousand Euros) for each day on which the violation continues, without prejudice to article 6.3 of these terms and conditions and Wolters’s right to claim full compensation and avail itself of other remedies.
15. Applicable law/resolution of disputes
15.1 The Agreement and all other legal relationships between Wolters and the Purchaser are governed by Dutch law, with the exclusion of the uniform law of the international sale of goods and the United Nations convention on contracts for the international sale of goods 1980.
15.2 Any disputes in connection with the Agreement will be brought before the competent Court of Almelo, the Netherlands.
15.3 If the general terms and conditions are translated, the original English text will be binding. Legal concepts herein shall have the meaning of Dutch legal concepts only.