General conditions of Wolterinck (Laren) Beheer B.V., whose registered office is in Laren NH, with company registration number 32041771 and filed with the Chamber of Commerce.
1.1 Wherever reference is made below to “Seller”, this shall be understood to mean Wolterinck (Laren) Beheer B.V., whose registered office is in Laren (NH), and those firms/companies affiliated to it which apply these general conditions of sale.
1.2 Wherever reference is made below to “Purchaser”, this shall be understood to mean a customer, buyer, person/party inviting tenders or any person or party who in any other manner enters, or intends to enter, into an agreement with the Seller or for whom the Seller submits an offer or tender or effects a delivery or performs a service.
1.3 Wherever reference is made below to “Parties”, this shall be understood to mean the Parties jointly.
1.4 Wherever reference is made below to “written notification”, it will also be understood to refer to email messages.
1.5 These conditions shall apply to any offer, tender, price list, quotation or communication from the Seller and to any agreement made between the Parties. These present conditions are hereby also declared to apply to any third parties engaged by the Seller for the performance of any agreements. In their relations with the Purchaser, such third parties may rely directly upon these general conditions.
1.6 Any conditions of purchase or other conditions which the Purchaser uses are hereby expressly rejected and shall neither apply to nor bind the Seller, except and to the extent that they have been expressly accepted in writing by the Seller before the agreement is made.
1.7 Additions and changes to these general conditions may only be agreed in writing.
Offer and agreement
2.1 Offers, tenders, price lists, quotations and other communications from the Seller are made/issued without obligation, unless otherwise expressly indicated by the Seller. Offers shall be valid for 60 days, unless otherwise apparent from the offer.
2.2 When issuing an offer or when making an agreement, the Purchaser shall be obliged to inform the Seller of all facts and circumstances that are relevant to the performance of the agreement (e.g. use of lift, crane, tackle), insofar as the Purchaser is, or ought to be, aware of these to the best of its judgment and ability. In the event that the Purchaser fails to fulfil this obligation, all additional expenses incurred as a result thereof shall be borne by the Purchaser.
2.3 If the Seller has issued an offer, an agreement shall be deemed to have come
into existence at the moment of receipt by the Seller of the offer signed in token
of agreement by the Purchaser, except when the Seller informs the Purchaser
within three working days after receipt that it does not intend to enter into any
agreement. As a derogation from the foregoing, an agreement may also be
created if and insofar as the Seller has already performed or has had to perform
the services/work as described in the offer, due to time constraints.
2.4 If the Purchaser places an order with the Seller without any prior offer having
been made, no agreement shall be deemed to have been made until the order
has been accepted by the Seller. The Seller may accept the order by means of
either an express verbal notification to the Purchaser or a written notification to
the Purchaser. In the event of a discrepancy between the Purchaser’s order and
the Seller’s confirmation, the Seller’s confirmation shall be binding to the parties,
unless the Purchaser is a natural person not acting in a professional or business
Performance of the agreement
3.1 In the event that the Seller performs services for the Purchaser, the former shall
carry out its obligations to the Purchaser to the best of its judgment and ability,
and the Seller will exercise the care of a good contractor when performing the
3.2 The Seller shall determine the manner in which it shall perform its obligations to
the Purchaser and, in so doing shall take account of the Purchaser’s wishes, as
far as reasonably possible for it.
3.3 All orders shall be accepted and performed by the Seller solely for the benefit of
the Purchaser. Third parties may not derive any rights from the work performed
or the results thereof. Articles 7:404 and 7:407(2) of the Dutch Civil Code are not
applicable to orders.
3.4 The Purchaser declares that it is familiar and agrees to the fact that the Seller’s
services to the Purchaser comprise concept design for aesthetic projects as well
as the aesthetic detailing and, if it has been explicitly agreed in writing, the
planning and support thereof, or advice on or the application for / granting of
permits and/or exemptions. The services that will be performed by the Seller for
the Purchaser expressly do not exclude the following services:
(i) providing advice on or carrying out technical, architectural or constructional
3.5 If and insofar as the order to be carried out by the Seller leads to the
performance of any of the work described in article 3.4, the Purchaser itself shall
contract one or more third parties for the performance of that work. At the
Purchaser’s request, the Seller may advise the Purchaser on the engagement of
one or more third parties who will take on that part of the order. The Seller shall
exercise the necessary care in engaging or in consultations concerning the
engagement of third parties who do not work in its organisation. The Seller shall
not be responsible for any errors or shortcomings on the part of such third
3.6 If and insofar as third parties, acting on the instructions of the Seller, perform services for the benefit of the Purchaser and to this end apply their own general terms and conditions, the Purchaser shall be deemed to have accepted such general terms and conditions in its relations with the Seller and the third party, both jointly and severally. The third party, in its capacity as the Seller’s contractor, shall have the right to exercise the rights from the said general conditions directly against the Purchaser. The Seller will make any such general conditions available to the Purchaser.
3.7 Goods delivered on the basis of an agreement shall be deemed to meet the terms of the agreement if they fall within accepted tolerances for dimensions and weights and, where applicable, quantities, except where the Parties have agreed on specific quality requirements or quality standards in writing.
3.8 Unless otherwise agreed, any samples and/or models supplied by the Seller to the Purchaser shall be by way of indication only. The goods ultimately delivered need not correspond thereto, which provision shall particularly apply to goods with a decorative function.
Services and goods
3.9 All delivery periods stated by the Seller are approximations only. With the exception of payment deadlines, agreed dates shall not constitute final deadlines, except where otherwise agreed in writing.
3.10 In the event of delayed delivery, the Purchaser shall not be entitled to refuse either acceptance of or payment for the goods.
3.11 The Seller hereby reserves the right, after consultation with the Purchaser, to perform the agreement in sections and to invoice for such sections.
3.12 If it becomes apparent during the performance of the agreement that it is necessary to amend or supplement it for its proper performance, the Seller shall inform the Purchaser of this in good time and the Parties will enter into mutual consultation to adjust the agreement. If the nature, scope and contents of the agreement are to be amended on the instructions of the Purchaser or competent authorities, this may have consequences for the original arrangements made by the Parties. Insofar as this is relevant, the Seller shall in such event provide the Purchaser with a quotation for such an amendment, before the change is made, to the extent this is possible.
Responsibilities of the Purchaser when the Seller performs the agreement
3.13 Insofar as applicable to the agreement concluded by the Parties, the Purchaser shall enable the Seller (which includes any third parties that have been engaged by the Seller) to fulfil its order and to ensure, at its own expense and risk, that the following non-exhaustive list of actions is implemented:
– any applicable permits and/or exemptions are issued by the competent authorities in good time;
– the Seller’s employees shall be able to begin the work immediately upon arrival at the work site, and shall be able to continue to carry out their work without any interruption; and
– when the work is completed, an authorised representative of the Purchaser shall be present to check whether the Seller’s work has been carried out properly.
4.1 Delivery is understood to mean the actual offering to the Purchaser of the goods or services to which the agreement refers.
4.2 Deliveries are made “ex works” (in accordance with the Incoterms) by means of notification by the Seller to the Purchaser to the effect that the goods, irrespective of the agreed means of freight, are ready for collection by the Purchaser.
4.3 In the event that the goods are delivered by the Seller to an address indicated by the Purchaser, the freight costs and risk, including the costs of insurance, shall be the Purchaser’s responsibility. In the event that the Purchaser is a natural person not acting in a professional or business capacity, the Seller shall, upon the making of the agreement in which the means of freight are agreed, indicate the costs of such freight. The Purchaser must ensure that the place of delivery can be reached without hindrance and affords easy access.
4.4 The Purchaser shall be obliged to take physical possession of the goods immediately after delivery. In the event that the Purchaser fails to abide by this obligation, the Seller shall be entitled to store the goods at the Purchaser’s expense and risk, without prejudice to the Purchaser’s obligation to pay the purchase price of the goods.
Delivery, transfer of risk and reservation of ownership
5.1 The Purchaser bears the risk for the goods as from the moment of delivery, unless it has been agreed that the Seller shall deliver the goods to the Purchaser and that this is a consumer purchase within the meaning of article 7:5 sec. 1 of the Dutch Civil Code, in which case article 7:11 of the Dutch Civil Code shall apply.
5.2 Ownership of goods already delivered or due to be delivered at some future date shall not pass to the Purchaser, within the meaning of article 3:92 of the Dutch Civil Code, until the Purchaser has paid to the Seller whatever is due by the Purchaser for goods already delivered or due to be delivered and/or services rendered or due to be rendered by virtue of the agreement, or as part of any claims arising as a result of failure to abide by such agreements. In the event of bankruptcy, suspension of payments, the granting of a statutory debt restructuring scheme or levying of an attachment, the Purchaser shall immediately inform the Seller and the former shall be obliged immediately to inform the receiver, administrator or execution creditor of the Seller’s reservation of ownership. The Purchaser shall not be entitled to pledge, give as security for a loan or in any other manner encumber or hypothecate or remove from the premises to which they have been delivered any goods that are subject to reservation of ownership until such time as the Purchaser has paid whatever is due by it to the Seller within the meaning of the foregoing sentence.
5.3 In the event that the Seller invokes reservation of ownership, the Purchaser shall be obliged, upon a first request to this end by the Seller, to afford every assistance to enable the Seller to exercise such reservation by means of physical repossession of the goods. The Purchaser shall, inter alia, afford the Seller unhindered access to the goods.
Remuneration and payment
6.1 Prices shall be exclusive of VAT and other taxes and fees levied by the authorities, and shall be based on delivery ex-works, as defined in Incoterms.
6.2 The remuneration for services shall consist of a basic remuneration, plus a remuneration based on the hourly rate for advisory and support activities by employees of the Seller, plus a remuneration for travelling time (based on an hourly rate), travelling expenses and secretarial support (based on an hourly rate).
6.3 In the event that the Seller gives advice on the purchase of goods and such goods are purchased by the Purchaser from third parties, the Purchaser shall pay the Seller a commission of 10% (excluding VAT) on the purchase value of such goods.
6.4 In the event that a change occurs in the price after the making of the agreement but before delivery is effected, such change shall have no effect on the agreed price, provided that such change occurs within three months after the making of the agreement. Any increases in price occurring after this period shall be the financial responsibility of the Purchaser. In the event that the Purchaser is a natural person not acting in a professional or business capacity, it shall be entitled to terminate the agreement in respect of the goods or service in question.
6.5 Each payment must be made within fourteen days after the invoice date, at net cash value, and the Purchaser shall not be entitled to any discount except where expressly so agreed. The Purchaser’s right to set off any claims against the Seller is hereby expressly excluded, unless the Purchaser is a natural person not acting in a professional or business capacity.
6.6 The Purchaser shall be in default of its payment obligation to the Seller, without a summons or formal notice of default being required, in the event that payment in full has not been made before the expiry of the period mentioned in art. 6.5 or where application has been filed by the Purchaser or an order has been made for suspension of payments, bankruptcy or statutory debt rescheduling.
6.7 If payment in full has not been made after the expiry of the period mentioned in article 6.5, the Purchaser shall be liable to the Seller for statutory interest, plus a surcharge of 3%, in respect of the unpaid amount until the date of payment thereof in full.
6.8 In the event that the Seller takes any judicial or extra-judicial collection or other measures in connection with non-compliance by the Purchaser with any of its obligations, the costs thereof shall be borne by the Purchaser. Such costs are hereby fixed at a minimum of 15% of the principal, subject to a minimum sum of €150, and shall be without prejudice to the Seller’s right to claim damages in full.
6.9 Payments made by the Purchaser to the Seller shall be applied in the first instance to cover those costs incurred by the Seller and thereafter used to reduce accrued interest and finally to the Seller’s oldest unpaid invoice. The Seller shall be entitled to depart from this sequence of allocation and to apply payments to a sequence of the Seller’s own choosing in order to reduce whatever the Purchaser, as a result of deliveries and/or services, interest and/or costs, owes to the Seller.
6.10 The Purchaser shall be obliged, upon a first request by the Seller, to furnish surety for compliance with its obligations. The Seller shall in all cases be entitled
to deliver goods on a cash-on-delivery basis, to require payment in advance or to set other conditions of payment.
6.11 Article 6.10 shall not apply if the Purchaser is a natural person not acting in a professional or business capacity and the transaction is a purchase. In such a case, the Seller shall be entitled to oblige the Purchaser to make an advance payment not exceeding 50% of the price.
Suspension and dissolution
7.1 In the event that the Purchaser fails to fulfil, or fails to fulfil properly or punctually, any obligation arising from an agreement made with the Seller or arising from these general conditions and is thus in default, the Seller shall be entitled to suspend performance of the agreement or to terminate it, either wholly or in part, without the intervention of the courts, without being bound to pay any compensation and without prejudice to any other rights it may have.
7.2 The Seller may also dissolve an agreement, either wholly or in part, without the need for any further formal notice of default and without the intervention of the courts in the case of a suspension of payments or of bankruptcy (or such applications being filed), liquidation or admission to a statutory debt rescheduling arrangement on the part of the Purchaser.
7.3 In the event that the Seller terminates the agreement with the Purchaser, either wholly or in part, on the basis of articles 7.1 or 7.2, the Purchaser shall be obliged to compensate the Seller for any damages incurred as a result.
7.4 In the event of complaints (including a notice of complaint pursuant to article 8) the Purchaser shall only be entitled to suspend payment of that part of the invoice which is reasonably proportionate to the substance and seriousness of the complaint. This entitlement shall not relieve the Purchaser of its obligation to pay the remaining part of the invoice within the agreed period.
8.1 The Purchaser must check goods delivered immediately after their delivery for any discrepancies or damage. Any complaint relating to goods delivered or services rendered must be made in writing to the Seller within fourteen working days after the delivery date. In the event that the Purchaser is a natural person not acting in a professional or business capacity, the periods mentioned in article 7:21 of the Dutch Civil Code shall apply. After the expiry of the aforementioned periods, the goods delivered shall be deemed to have been irrevocably and unconditionally accepted by the Purchaser. Any legal actions must, under penalty of forfeiture, be brought before the court no later than one year after punctual notification of a complaint.
8.2 The Purchaser must hold defective goods at the Seller’s disposal at all times and afford the Seller the opportunity to inspect such defective goods within ten working days after the notification of complaint.
8.3 The Seller’s guarantee obligation in respect of goods delivered shall extend no further than to an obligation on its part to guarantee that the goods delivered correspond to the agreement, having regard to the provisions of article 3 of these conditions. If the Seller’s supplier provides a more extensive guarantee to the Seller, that more extensive guarantee shall be applicable between the Parties.
8.4 In the event that a complaint by a Purchaser is justified, having regard to the provisions above, the Seller shall, within a reasonable period, at its discretion and so far as possible:
a. deliver any shortfall in goods;
b repair the goods delivered;
c. replace the goods delivered.
In the event that the Seller is in default with regard to the foregoing, the Purchaser shall be entitled to terminate the agreement, either wholly or in part, in respect of the goods delivered. In the event that the Purchaser is a natural person not acting in a professional or business capacity, article 7.1.3 of the Dutch Civil Code shall apply, contrary to the foregoing provision.
8.5 Any guarantee by the Seller shall be void if:
a. and for as long as the Purchaser is in default of any obligation to the Seller;
b. the Purchaser has exposed the goods to unusual conditions or has treated them in a careless or inappropriate fashion;
c. any wear and tear is a consequence of normal use;
d assembly/installation or repair has/have been effected by third parties (not enlisted by the Seller) or by the Purchaser itself, except where installation by the Purchaser has been carried out in an unsound manner as a result of an error in the assembly instructions supplied by the Seller and the Purchaser is a natural person not acting in a professional or business capacity;
e. materials or goods have been furnished by the Purchaser to the Seller for the purpose of processing;
f. goods have been stored for longer than normal due to circumstances attributable to the Purchaser and it is reasonable to assume that a loss of quality has occurred as a result of this;
g. the Purchaser has not afforded the Seller an opportunity to inspect the defective goods within ten working days after the notice of complaint;
h. one year has passed since delivery.
If the Seller delivers goods to the Purchaser that have been acquired from third parties, the guarantee by the Seller to the Purchaser shall, at most, extend no further than the extent to which the Seller’s supplier is accountable to the Seller or, at most, to the extent that the Seller’s supplier has issued guarantees to the Seller.
8.6 Having regard to the provisions of article 7.4 above, the Purchaser shall not be entitled to suspend its payment obligations to the Seller or to set off any claims it may have against the Seller with its payment obligations to the latter, except where the Purchaser is a natural person not acting in a professional or business capacity.
9.1 Except in cases of deliberate fault or intentional recklessness on the part of the Seller or its executive/managerial staff and except for the guarantees issued in these conditions, any liability on the part of the Seller for loss or damage suffered by the Purchaser as a result of non-performance or unlawful act by the Seller, its staff or third parties enlisted by him, whether for direct or indirect
losses, is hereby excluded. If and to the extent that full exclusion of liability as mentioned above is not defensible in law, the Seller shall only be obliged to indemnify any direct loss, except in cases of deliberate fault or intentional recklessness on its part or on the part of its executive/managerial staff, where such loss does not exceed the value, excluding VAT, invoiced for the relevant services or products. The Seller will never be liable for indirect loss or damage except in cases of deliberate fault or intentional recklessness on the Seller’s part.
9.2 Article 9.1 shall not apply if and insofar as the Seller is liable on the basis of article 6.3.3 of the Dutch Civil Code (product liability).
9.3 The Purchaser shall be liable to the Seller for any direct loss or damage caused by a failure attributable to the Purchaser.
10.1 In addition to definitions of the term found in legislation and case law, force majeure shall be understood to mean any extraneous cause, whether foreseen or otherwise, over which the Seller is unable to exercise any influence and as a result of which it is unable to meet its obligations to the Purchaser. Force majeure shall, inter alia, include:
a. interference with or shut-down of operations of whatsoever kind affecting the Seller and irrespective of the manner in which it has occurred;
b. delayed or late delivery by any of the Seller’s suppliers or by a third party (or parties);
c. transport difficulties or hindrances of any kind, as a result of which transport to the Seller’s business or from the Seller’s business to the Purchaser is rendered difficult or hindered;
d. import and/or export restrictions of any kind whatsoever.
10.2 The Seller shall also be entitled to invoke force majeure when the circumstance preventing compliance or further compliance commences after the time when the Seller ought to have complied with its obligation, except in those cases where the Purchaser is a natural person not acting in a professional or business capacity.
10.3 The Seller’s obligations shall be suspended while force majeure persists. If the period during which compliance with the Seller’s obligations is rendered impossible as a result of force majeure exceeds 2 months, both parties shall be entitled to terminate the agreement without the intervention of the courts, in which case there will be no obligation to pay compensation. If the Seller, at the onset of force majeure, has already partly discharged its obligations, only partial termination of the agreement shall be possible, viz. in respect of that part that has not yet been fulfilled
11.1 The Seller is the exclusive and rightful owner of all intellectual property rights to those works (documents, designs, illustrations, drawings, samples, patterns, models, etc.) supplied to the Purchaser in connection with the agreement or produced in collaboration with or for the Purchaser. They must be returned to the Seller immediately upon request, without prejudice to any other rights belonging to the Seller.
11.2 The Purchaser shall only be entitled to use the goods or materials delivered or made available by the Seller in the context of the agreement.
11.3 Unless the Parties have expressly agreed otherwise, the Seller shall have the right to include any documents, drafts, illustrations, photographs, drawings and designs that have been made for the Purchaser in the context of the order in the Seller’s portfolios, brochures, books and/or the website or any other media (digital or otherwise) for promotional and/or publicity purposes.
Applicable law and jurisdiction
12.1 All legal relationships between the Parties shall be subject exclusively to Dutch law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) shall not apply and this provision shall also apply to any international regulation, whether existing or future, concerning the sale of moveable physical property, whose effect may be excluded by the parties.
12.2 All disputes that may arise between the Parties shall be adjudicated exclusively by those courts in the Netherlands having jurisdiction for the Seller’s place of business, except where law or treaty declares some other court to have jurisdiction, pursuant to the rules of peremptory law.
Laren, February 2018