GENERAL TERMS AND CONDITIONS FOR THE DELIVERY OF PRODUCTS BY WOLTERS KUNSTSTOFFEN- EN EMBALLAGE INDUSTRIE B.V.,
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, and all its affiliated companies;
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: the products that Wolters sells and/or delivers to the Purchaser.
1.1 These terms and conditions govern all 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 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.
1.3 All quotations and offers issued by Wolters are without engagement even if they contain a term for acceptance.
1.4 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.
1.5 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.
1.6 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.
1.7 If any provision contained in the Agreement is invalid or non-binding because it is contrary to mandatory provisions of law, the remaining provisions contained in the Agreement 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 purporse of the Agreement.
2.1 An Agreement between Wolters and the Purchaser will be concluded at the time at which Wolters accepts the order by telephone or in writing – including by e-mail – or at the time at which Wolters commences the performance of the Agreement.
2.2 The Purchaser will ensure that:
2.3 The Purchaser acknowledges and accepts that amendments to the Agreement, including its content (for example changes in the scope, working methods or approach), may affect the agreed planning schedule. If an amendment to the Agreement or its content is the result of a request or act on the part of the Purchaser or other circumstances that can be attributed to the Purchaser, Wolters will be entitled to charge for the ensuing additional work on the basis of its customary rates as a supplementary or separate assignment.
2.4 Wolters is not obliged to assess the accuracy of assignments and/or notifications, drawings, calculations, auxiliary materials, etc. The Purchaser guarantees that the information and/or auxiliary materials it provides to Wolters are correct and complete. Defects in Wolters’ products that are caused by incorrect and/or incomplete information and/or auxiliary materials (moulds) etc. that came from the Purchaser cannot be attributed to Wolters. The Purchaser will be liable for any damage that ensues from the incorrect or incomplete information, etc. that the Purchaser provides to Wolters.
2.5 Wolters will be 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 any costs or damage.
2.6 Wolters will be authorised to reject any order placed by the purchaser, in whole or in part, without being obliged to compensate any damage.
2.7 The Purchaser will be authorised to cancel an order that it has already placed before an Agreement is concluded 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.
2.8 Amendments to the Agreement, including expansion of work that has already been stipulated, will be binding on Wolters only if and as soon as Wolters has confirmed the amendment in writing – including by e-mail – or has started the work.
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 the purchase price is exclusive of VAT and other government levies and if applicable exclusive of the costs related to transport, packaging, insurance, etc. Wolters will be entitled to charge the Purchaser a surcharge if the quantity of the Products that must be delivered to the Purchaser is not sufficient to fill an entire lorry.
3.2 Insofar as the price lists, catalogues, etc. refer to quantities, weights or measurements, the quantities, kilograms or millimetres/centimetres indicated in that regard are merely indicative of the actual quantities of Products to be delivered.
3.3 Payment must be made in Euros.
3.4 The Purchaser is obliged to pay the purchase price within 30 days of the invoice date.
3.5 The Purchaser is not authorised to suspend its obligations towards Wolters or to set off or deduct any claims it has against Wolters against/from any amounts that the Purchaser owes 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 Wolters will be entitled to demand advance payment of all or part of the purchase price with respect to the delivery of the Products, in which case Wolters will not deliver the Products until after that advance payment has been received.
3.8 The Purchaser will be in default merely as a result of its failure to comply with its payment obligations in a timely manner, 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 as from that time.
3.9 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 turn over the claim for collection, in which case the Purchaser will be obliged to pay at least 15% of the amount due plus the statutory commercial interest in respect of the collection costs incurred.
3.10 If after the Agreement is concluded one or more of the price factors increases or decreases or the assignment 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. Wolters will notify the Purchaser as quickly as possible regarding such an increase or decrease in the price.
3.11 All costs related to payment, including the provision of security, will be paid by the Purchaser.
4.1 Delivery will be made either ex-factory (Incoterms 2000) from Wolters’ business site to Enter or from Wolters’ depot to Vissershavenstraat in IJmuiden. If the parties agree that Wolters will deliver the Products to another location such deliveries will be made carriage paid to the agreed destination (Incoterms 2000).
4.2 Although Wolters will make every effort to comply with the delivery terms agreed, the specified delivery terms are not of the essence. In the event that delivery is not on time the Purchaser must give Wolters written notice of default and a reasonable term in which to comply. The delivery times indicated by Wolters are based on the working conditions that apply at the time of the order confirmation. If there are any delays for which Wolters cannot be held accountable the delivery time will be extended if necessary. The delivery time will also be extended if a delay on the part of Wolters arose as a result of the Purchaser’s failure to comply with any obligation that ensues for it under the Agreement or if the Purchaser fails to cooperate.
4.3 If the 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 damage that the Purchaser has sustained unless there has been an intentional act or omission or gross negligence on the part of Wolters.
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.
4.5 Extra expenses in connection with delivery that Wolters incurs at the Purchaser’s explicit request will be charged to the Purchaser separately unless the parties agree otherwise in writing.
5.1 The term for delivery referred to in Article 4 will be extended by any period in which Wolters is impeded from complying with its obligations as a result of force majeure. Force majeure will also be taken to mean a seriously hindrance.
5.2 There will be deemed to be a situation involving force majeure on the part of Wolters if Wolters is impeded from complying with its obligations under the Agreement as a result incidents including but not limited to war, threat of war, terrorism, threat of terrorism, civil war, riots, revolution, wilful damage, fire, water damage, floods, government measures, import and export impediments, defects in machinery, strikes, sit-ins, lockouts, irreplaceable employees, transport problems as a result of weather conditions and traffic jams, and disruptions in the provision of energy and water to Wolters’ company.
5.3 All other causes that are not Wolters’ fault or outside its sphere of risk will be considered equivalent to force majeure.
5.4 If delivery is delayed by more than six months as a result of force majeure both Wolters and the Purchaser will be entitled to terminate the Agreement by registered letter without either of the parties be entitled to any compensation.
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. 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 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 on pain of a penalty in the amount of 10% per day of the amount that it owes.
7.1 With due observance of the limitations contained in these terms and conditions, Wolters guarantees that the Products will be suitable for the purpose for which they are intended provided that all its instructions with respect to the use of those goods have been strictly followed.
7.2 The guarantee will lapse after the Product has been used once and in any event after a term of 12 months have elapsed.
7.3 This guarantee does not cover defects that 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.
7.4 If Wolters is liable in accordance with its guarantee, that liability will be limited to replacing the Product. The replacement of the Part will be limited to re-delivery, exclusive of freight charges. In the event of replacement a new guarantee will be granted for the replacement goods; that guarantee will commence on the day on which the replacement Product has been delivered.
7.5 Wolters will not be bound by any guarantee if 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.
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 14 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 14 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 If the Products can no longer be used for the purposes for which they were manufactured and the Purchaser has notified Wolters in a timely manner, the Purchaser will be entitled to have those Products replaced, subject to Wolters’ assessment.
9.1 Under no circumstances will Wolters be liable for damage 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.
9.2 If it appears within the period referred to in Article 7.2 that the Products cannot be used for the purposes for which they were manufactured, under no circumstances will Wolters be obliged to comply with any obligation other than the obligation to replace the Products referred to in Article 8.4.
9.3 Under no circumstances is Wolters liable for any damage, however it may have been caused, except insofar as the law or these terms and conditions provide otherwise and except insofar as an intentional act or omission or gross negligence was involved that cannot be legally excluded. This provision relates to direct and indirect damage, consequential damage, loss of profits, other trading loss on the part of the Purchaser and damage as a result of the Purchaser’s liability towards third parties. The Purchaser will bear the burden of proof with respect to any intentional act or omission or gross negligence.
9.4 If Wolters is liable notwithstanding the provisions contained in the preceding articles, it will be liable only up to the maximum amount that is paid out under its liability insurance in respect of the incident in question, minus the amount of the excess.
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 those who are not its subordinates for whose behaviour it can be held liable in accordance with the law.
10.1 In addition to delivering 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 that respect. Additional work may consist of developing 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 14 days after it has submitted the proofs to the Purchaser, the Purchaser will be deemed to have approved the proofs. 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 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, the Purchaser must approve the development of Products on the basis of those moulds. Wolters cannot be held responsible for deviations in the sizes, etc. that fall within the tolerance levels of the 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.
11.1 All information, drawings, depictions and overviews in catalogues and price lists that are provided by Wolters are protected by copyright. The Purchaser is not permitted to copy those documents or to make them available to third parties without Wolters’ explicit permission.
Wolters will at all times retain the copyright in respect of designs, drawings, sketches, models, stamps, lithographs, etc. that it makes or that are made on its instructions. Under no circumstances may they be duplicated or made available to third parties without Wolters’ permission.
The Purchaser indemnifies Wolters in respect of all consequences of any infringement of any right of third parties if a certain image, drawings, model or a certain form is used at the Purchaser’s request.
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.
Termination of the Agreement will not relieve the Purchaser or its legal successors from any obligation contained in this Article.
12.1 Wolters will be entitled to terminate the Agreement effective immediately 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 subsection by means of a registered letter.
12.3 Without prejudice to the provisions contained in the preceding subsection, the parties will be entitled to terminate the Agreement effective immediately 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 subsection arises in respect of it.
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 subsection 13.1 above and the activities of the Purchaser and its affiliated company. This obligation applies both during the term of the Agreement and after it has been terminated.
13.4 Upon the termination of the assignment 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 information received from the Purchaser under the Agreement, including any written documents and data files.
In the event of a violation of one or more of the provisions contained in 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 Wolters’s right to claim compensation and avail itself of other remedies.
15.1 All legal relationships between Wolters and the Purchaser are governed by Dutch law.
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 Dutch text will be binding.