General terms and conditions governing sale delivery and payment of Wouter Witzel EuroValve BV, hereinafter referred to as “Wouter Witzel EuroValve”, with its registered office and principal place of business in Losser, the Netherlands.
Filed with the Chamber of Commerce in Enschede, the Netherlands under number 08137831, August 2014
1.1 The present general terms and conditions are, unless expressly agreed otherwise in writing, applicable to all offers, deliveries and agreements for the execution of deliveries and/or services by Wouter Witzel EuroValve, independent from the origin of the delivered goods or materials.
1.2 Insofar as these general terms and conditions are also drawn up in a language other than Dutch the Dutch text will always prevail in case of differences, with the exception of article 9 of the German terms and conditions. The German text will prevail for that article.
2.1 The applicability of the general purchase terms and conditions or other terms and conditions of the buyer are explicitly excluded by Wouter Witzel EuroValve.
2.2 Derogation from these terms and conditions can only be relied on if Wouter Witzel EuroValve has explicitly agreed to this in writing.
Offers and confirmations
3.1 All offers and stated sale prices originating from Wouter Witzel EuroValve or its representatives are without obligation and non-binding. Wouter Witzel EuroValve has the right to withdraw the offer within two working days from its receipt of the acceptance by the buyer.
3.2 Orders will only bind Wouter Witzel EuroValve insofar as these orders have been confirmed in writing by Wouter Witzel EuroValve. Without prejudice to the provisions of article 3.6, an agreement will only come into effect when Wouter Witzel EuroValve has confirmed the assignment in writing.
3.3 Samples, images, catalogues and suchlike provided to the buyer only apply subject to the proviso of product changes and are therefore non-binding.
3.4 If the buyer requires other information or a further specification, and/or advice outside the standard offers, Wouter Witzel EuroValve will, if this offer does not result in an assignment, have the right to charge the costs of this extra work to the buyer.
3.5 If the buyer, after an agreement has come into effect, for any reason whatsoever wishes to cancel the assignment or wishes to make changes or amendments thereto, Wouter Witzel EuroValve will only be bound by this cancellation or amendment after its explicit agreement in writing. In the event of cancellation or amendment Wouter Witzel EuroValve will always be entitled to charge the buyer for all costs ensuing therefrom, also including all damage including lost profits, all this in the broadest sense of the word and calculated in accordance with reasonableness and fairness.
3.6 If Wouter Witzel EuroValve has offered a sale on account, the agreement will only come into effect provided that Wouter Witzel EuroValve can acquire credit insurance to cover the buyer. If payment by means of documentary credit is agreed, the agreement will only come into effect after acceptance in writing of an irrevocable confirmed documentary credit by Wouter Witzel EuroValve.
4.1 The prices stated by Wouter Witzel EuroValve, if this has not been stated otherwise, do not include packaging and are based on free carrier (FCA) in accordance with the Incoterms applicable on the date of the offer. “Free carrier” means the offer of the freight by the carrier to the business site of Wouter Witzel EuroValve. The prices are in Euro, excluding turnover tax and other government charges applicable to the sale and delivery.
4.2 If after the date of the offer one or more cost factors are increased, even if this takes place pursuant to foreseeable circumstances, Wouter Witzel EuroValve will be entitled to amend the agreed price accordingly. The aforesaid cost factors include inter alia taxes, excise duties, import duties, freight prices, and purchase prices of raw materials, devaluation, revaluation, export prohibition, job strike and threat of war.
4.3 The packaging is not included in the price, unless Wouter Witzel EuroValve has explicitly stated otherwise in writing.
5.1 If as a result of force majeure of a permanent, respectively temporary nature, it cannot be expected of Wouter Witzel EuroValve to give performance of the agreement (in a timely manner), Wouter Witzel EuroValve will be entitled at its discretion, without any obligation of compensation, to wholly or in part terminate the agreement without judicial intervention, or to suspend (further) performance of the agreement, by means of a single notice in writing. A force majeure situation will have arisen if, as a result of any circumstance, it cannot be reasonably expected of Wouter Witzel EuroValve that it (further) fulfils its obligations, also if this circumstance was foreseeable at the time of the concluding of the agreement. A force majeure situation will furthermore have arisen inter alia in the event of fire, riot, war or threat of war, terrorism, civil war, military mobilisation, natural disaster, transport disturbances, export, import or transit prohibitions, industrial actions, large-scale sickness absence at, or boycott of, Wouter Witzel EuroValve or its suppliers as well as in the event of a supplier not fulfilling obligations (in a timely manner) and other serious disruptions to the business of Wouter Witzel EuroValve or its suppliers.
5.2 If the agreement has already been partially performed by Wouter Witzel EuroValve the buyer will pay the sale price of the delivered goods.
Suspension and termination
6.1 If the buyer does not, not properly, or not in a timely manner fulfil any obligation ensuing to the buyer from the agreement concluded with Wouter Witzel EuroValve, or if there is any serious doubt present, regarding whether the buyer is able to fulfil its contractual obligation, as well as in the event of application for moratorium, bankruptcy of liquidation of the buyer, Wouter Witzel EuroValve will be entitled, without any notice of default and without any judicial intervention, to either suspend the performance of the agreement(s) concerned, or to terminate these wholly or in part, all this without Wouter Witzel EuroValve being obliged to any compensation and without prejudice to the further rights accruing to Wouter Witzel EuroValve.
6.2 Wouter Witzel EuroValve is entitled during the suspension, and at the end thereof obliged, to opt for performance, or as the case may be for full or partial termination of the suspended agreement(s).
6.3 The claim of Wouter Witzel EuroValve with regard to the part of the agreement already performed, as well as the damage ensuing from the suspension or termination, including lost profit resulting therefrom, will be immediately due and payable.
6.4 Wouter Witzel EuroValve will be entitled at or after the entering into of the agreement, prior to (further) performance of the agreement, to require security from the buyer, in order for the payment as well as other obligations under this agreement to be fulfilled. Refusal by the buyer to provide the required security will give Wouter Witzel EuroValve the right to suspend its obligations and will ultimately give it the right to terminate the agreement wholly or in part without notice of default or judicial intervention, without prejudice to its right to compensation of any damage suffered by it.
7.1 The stated delivery dates will never be deemed to be a final deadline. In case of untimely delivery Wouter Witzel EuroValve will not be in default with regard to the delivery date until after it has been given notice of default by the buyer and the buyer has thereby given Wouter Witzel EuroValve the opportunity to still deliver within a reasonable period and Wouter Witzel EuroValve has not done this.
7.2 The non-fulfilment (in time) of any payment obligation by the buyer will suspend the obligation to deliver of Wouter Witzel EuroValve potentially by as many days as the payment term is exceeded by the buyer, or a longer period if that is reasonable.
7.3 Exceeding of the delivery date does not give the buyer the right to terminate the agreement wholly or in part, unless this exceeding mounts up to more than 16 weeks or will mount up to more than 16 weeks according to notification by Wouter Witzel EuroValve. The buyer can in case of the aforementioned exceeding terminate the agreement by means of a written notice to Wouter Witzel EuroValve and will then have the right, insofar as applicable, to restitution of the (part of) the price already paid for the product and to compensation of the damage suffered by the buyer, all this up to a maximum of 15 per cent of the price agreed for the delivered product. Unless the buyer makes use of its aforesaid right to termination, exceeding of the delivery date – through whatsoever cause – will not give the buyer the right to, without judicial authorisation, carry out work or have work carried out for the performance of the agreement.
7.4 Unless otherwise agreed in writing the delivery date commences at the time when the agreement has come into effect in accordance with article 3 and all documents relevant to the performance of the agreement are in the possession of Wouter Witzel EuroValve, and all obligations ensuing from the agreed payment security on the part of the buyer, such as the receipt by Wouter Witzel EuroValve advance payment instalments or the opening of an irrevocable letter of credit which thereupon must be accepted in writing by Wouter Witzel EuroValve, following which the delivery period commences.
7.5 Unless otherwise agreed in writing all deliveries take place on the basis of free carrier, FCA Losser, the Netherlands, in accordance with the Incoterms applicable on the date of the offer. Free carrier means the offer of the freight to the carrier at the business site of Wouter Witzel EuroValve.
Delivery on a call-off basis and purchase
8.1 A call-off order means an order whereby the time of delivery has been made dependent by the buyer on delivery on a call-off basis. In the event of a delivery on a call-off basis contract Wouter Witzel EuroValve will be obliged to deliver if the buyer calls off the order in such a timely manner that the contractually agreed delivery date can be observed.
In the event of an untimely delivery on a call-off basis the buyer will have the right to an additional call-off deadline of eight working days, commencing on the first working day following the day on which the buyer has received a demand letter for call-off from Wouter Witzel EuroValve. There is no right to extension of the call-off deadline in existence if for the delivery on a call-off basis a fixed period has been agreed.
8.2 In the event of an untimely delivery on a call-off basis the buyer will have the right to an additional call-off deadline of eight working days, commencing on the first working day following the day on which the buyer has received a demand letter for call-off from Wouter Witzel EuroValve. In the event that the buyer has furthermore not purchased within the additional period, Wouter Witzel EuroValve will have the right to terminate the concluded agreement, or as the case may be to cancel without judicial intervention, by simple notification to the buyer. Wouter Witzel EuroValve will in that case be entitled to claim compensation for all damage affecting it, which has arisen as a result of the (not in a timely manner) purchase.
Retention of title
9.1 The ownership of the goods only transfers to the buyer when all that which is owed by the buyer to Wouter Witzel EuroValve, including interest and costs, is paid in full to Wouter Witzel EuroValve.
9.2 The payment of a claim by the buyer by bill of exchange or cheque will only apply as such after the cashing in and payout to Wouter Witzel EuroValve has taken place without reservation.
9.3 In case of non-payment by the buyer Wouter Witzel EuroValve will be permitted to collect the products from the buyer. The buyer will at all times offer Wouter Witzel EuroValve the opportunity necessary for this purpose.
9.4 The buyer must store the goods subject to retention of title separately from the other goods, so as to continue to be able to distinguish the goods of Wouter Witzel EuroValve.
9.5 As long as the delivered goods are subject to retention of title the buyer may not dispose, encumber or pledge these goods outside the usual business operations of the buyer, or otherwise bring these under the control of third parties. However, the buyer is not permitted to dispose of the goods in the context of the usual business operations of the buyer at the time when the buyer has applied for moratorium or the buyer is declared insolvent.
10.1 If not explicitly agreed otherwise in writing invoices must have been paid within thirty days from the invoice date in € (EURO), or in another agreed currency.
If not explicitly agreed in writing or stated in the invoice, no payment discount applies.
All payments must take place without deduction or set-off to the account to be designated by Wouter Witzel EuroValve or at the office of Wouter Witzel EuroValve.
10.2 The value date on which Wouter Witzel EuroValve receives the payment applies as the date of payment. In case of payment by giro or bank the date of the crediting of the Wouter Witzel EuroValve giro or bank account applies as the date of payment.
10.3 If the client does not pay within the agreed period, the client will be deemed to be in default by operation of law and the contractor will have the right, without any notice of default, to charge interest to the client from the due date according to a percentage of 3 points above the statutory interest applicable in the Netherlands, as referred to in Section 119a and Section 120 subsection 2 Book 6 Civil Code, and will also owe all judicial and extrajudicial costs incurred for the collection of the claim.
10.4 In the event an order being executed in parts Wouter Witzel EuroValve will be entitled to require payment for the partial deliveries prior to executing the other partial deliveries.
Guarantee and complaints
11.1 All goods delivered by Wouter Witzel EuroValve are guaranteed with regard to manufacturing errors for a period of 12 months from delivery, unless otherwise agreed in writing, provided that the goods have been treated in the correct manner. The products are not designed for: burdening by traffic, wind, earthquakes, reaction forces and instances as a result of supports, accessories, leads and pipes etc., corrosion and erosion and prolonged vibrations as well as analysis of unstable liquids.
11.2 Any complaints must be submitted in writing to Wouter Witzel EuroValve within eight days from receipt by the buyer. Defects which could only be discovered at a later stage (invisible defects) must immediately after discovery be made known to Wouter Witzel EuroValve. As soon as these periods are exceeded the buyer will be deemed to have approved the delivery and complaints will no longer be dealt with.
11.3 The assessment of the complaints submitted by the buyer will be exclusively dealt with by Wouter Witzel EuroValve. The return dispatch of products will take place at the expense and risk of the buyer and can only take place after prior permission in writing has been obtained from Wouter Witzel EuroValve.
11.4 If the buyer has reported a complaint in a timely manner to Wouter Witzel EuroValve, and Wouter Witzel EuroValve finds the complaint well-founded, Wouter Witzel EuroValve will at its discretion either repay a pro rata part of the purchase price, plus any transport costs incurred by the buyer, or repair the delivered goods without financial consideration.
11.5 Minor technically unavoidable deviations in quality, quantity, measurement, finish and suchlike that are deemed admissible in the trade cannot be used as a basis for complaints.
In the event that the buyer personally carries out repairs or makes modifications of the delivery the buyer will lose any right to complaint towards Wouter Witzel EuroValve.
11.6 Wouter Witzel EuroValve will never be obliged to further compensation of any other direct or indirect damage and consequential loss.
12.1 The liability of the Wouter Witzel EuroValve is explicitly limited to fulfilment of the guarantee obligations described in these terms and conditions.
12.2 With the exception of the provisions of article 12.1, the statutory liability on the basis of mandatory statutory provisions, excluding cases of intention or wilful recklessness, all liability of Wouter Witzel EuroValve for any other form of damage is excluded, including any direct or indirect damage or loss, consequential loss or loss due to lost profit.
12.3 Wouter Witzel EuroValve will not be liable for costs, damage and accrued interest which might arise as a direct or indirect result of:
– Infringement of patents, licences or other rights of third parties resulting from use of, by, or due to data provided by the buyer;
– Exceeding of the delivery date.
12.4 The buyer indemnifies Wouter Witzel EuroValve against claims by third parties for compensation of damage for which Wouter Witzel EuroValve is not liable pursuant to these terms and conditions.
Intellectual property rights
13.1 The offer made by Wouter Witzel EuroValve, as well as the drawings, calculations, software, descriptions, designs, tools and suchlike produced or provided by it, remain in its ownership, also if costs have been charged for this. The intellectual property pertaining to the information, which is included or is the basis of the manufacture and construction methods, products and suchlike, remains exclusively reserved to Wouter Witzel EuroValve, also if costs have been charged for this. The client guarantees that the information referred to will not, other than with permission in writing from Wouter Witzel EuroValve, be copied, shown to third parties, publicised or used, other than for the purpose of performance of the agreement.
13.2 The buyer is not permitted to wholly or in part modify the delivered products or to provide these with another brand name or packaging, or to use the trademark concerned in another manner, or as the case may be to register this in the buyer’s personal name.
Court of competent jurisdiction
All disputes, including those disputes which are only considered to be disputes as such by one of the parties, which might arise between the parties as a result of an agreement to which the present terms and conditions apply wholly or in part, or as a result of further agreements, will be exclusively subjected to the judgment of the court with competent jurisdiction in the district where Wouter Witzel EuroValve has its registered office, all this without prejudice to the entitlement of Wouter Witzel EuroValve to, if required, submit the dispute to another court with competent jurisdiction.
The law of the Netherlands is exclusively applicable to the legal relationship between the buyer and Wouter Witzel EuroValve. The applicability of the Vienna Sales Convention is excluded.