GENERAL SALES CONDITIONS W&O Products B.V.
- The conditions stated below apply to all sales, quotation, and deliveries by W&O Products B.V. (hereinafter “seller”). These conditions are binding on both parties and exclude any of buyer's conditions, except for any deviations accepted by seller in writing. By placing an order, buyer confirms to have taken knowledge of these conditions and to accept these in full without any reservation.
- All agreements made under these conditions, all offers and quotations by seller, and any and all other legal relationships between seller and buyer are governed by the laws of the Netherlands. Any and all disputes between seller and buyer shall be resolved exclusively by the competent judge in 's-Hertogenbosch. However, seller may choose to take legal action against buyer before the court of the place where buyer holds their registered office or buyer's place of residence, with applicability of the laws of the country where buyer is domiciled/holds their registered office or otherwise.
- All offers, quotations, prices, and conditions stated by seller are without obligation and expire by lapse of 30 days, unless agreed otherwise in writing. Agreements with or commitments accepted by seller's representatives or other employees are not binding for seller, unless duly confirmed by seller in writing. Every quotation, sale, and delivery is based on the information provided by buyer. Buyer is responsible for the correctness and completeness of this information.
- Seller endeavours to comply with their obligations as agreed with buyer with care and to the best of their ability. All of seller's commitments are best-effort commitments, except for results expressly promised by seller, provided that such results were described in sufficiently verifiable terms.
- Seller reserves the right, at all times, to hire third parties to comply with their agreements with buyer, including (but not limited to) the manufacturing of goods. This means that the applicability of article 7:404 of the Dutch Civil Code is expressly excluded. Seller is not liable for any damages caused by such third parties.
- All prices are quoted in Euros or otherwise in accordance to agreement, and exclusive of sales tax and any levies imposed by public or semipublic bodies. Seller reserves the right, at all times, to adjust the prices of their goods or services as a result of a rise in raw material prices, labour costs, and other factors that increase the cost price, such as taxes, levies, or import duties.
- Delivery and transfer of risk shall take place by handing the goods over to the professional carrier or, in case the goods are collected by buyer or delivered by seller, by handing the goods over to buyer or delivering them to buyer's warehouse. Seller shall pay the costs of carriage until the Dutch border. Clearance costs shall be borne by buyer. In case the delivery depends on buyer's order and buyer fails to order, the valid delivery date is the last day of the agreed order period or delivery period.
- A 4-week backlog period starts automatically by lapse of the (agreed) delivery period or delivery date.
- Seller is authorised to dissolve any order partially or in whole, at their own discretion, without judicial intervention, or to demand advance payment for deliveries yet to be made, if:
a. their credit risks resulting from the order(s) in question cannot be covered, sufficiently or at all, by a credit insurer of seller's choice;
b. buyer's financial position deteriorates before complete delivery of the order(s) has taken place.
- a. Claims regarding goods are only valid if lodged with seller in writing, in clear terms, within two weeks after receipt of the goods and if the goods are still in the state in which they were delivered.
b. Minor deviations in quality, colour, size, weight, finish, design, etc. that are deemed acceptable in the industry or that are technically inevitable are no valid reason for complaint.
c. In case of a valid complaint, seller can choose, at their discretion, to refund the goods or to repair or replace them within thirty days after receipt of the return shipment.
- In case of non-delivery, late delivery, or incorrect delivery, buyer cannot claim any refund or damages unless those damages are the result of seller's gross fault or malicious intent.
- a. Payment of the purchase price shall be made in ‘s-Hertogenbosch, Netherlands, into a bank account to be determined by seller, within 14 days after the invoice date, unless agreed otherwise.
b. Claims related to invoices must be lodged within 7 days after the invoice date, after which period any such claims shall be regarded as invalid and the invoice as accepted.
c. Payments shall always be processed to settle the oldest due amounts.
d. In case of bank payments, the payment date is the day on which the amount is credited to seller's account. In case of payments by cheque, the payment date is the date on which seller cashes the cheque.
e. If buyer fails to pay before or on the due date, the buyer shall be in default towards seller, without the need of any notice of default.
f. Any delay in payment imposes on buyer the obligation to pay a default interest of up to 1.5% per whole or partial month, without prejudice to seller's entitlement to a lump-sum compensation of up to 15% of the invoice amounts that were not paid on time or at all, in accordance with the commercial practices of buyer's country.
g. In case buyer fails to comply with the payment period, seller is authorised to demand advance cash payment or security for timely payment before delivering the goods, to cancel the contract partially or in whole, or to suspend any further execution of the order until all due invoice amounts are settled.
- All delivered goods remain seller's property until all invoices - including those that have not fallen due yet - have been paid. As long as seller still has a claim against buyer, seller shall be authorised to reclaim the goods and buyer is not authorised to transfer seller's goods to third parties in any form, as security or otherwise, or to consign them to third parties. Goods reclaimed under this article shall be refunded to buyer at the market value of the goods on the day they are reclaimed.
- a. All drawings and images provided by seller, as well as all other information provided by seller to buyer, shall remain seller's property. All intellectual property rights regarding the aforementioned information are with seller or their licensers. Unless agreed otherwise, nothing under any legal relationship between seller and buyer can be regarded as a transfer of any intellectual property right from seller to buyer. Except with seller's prior written consent, buyer is not authorised to copy or alter such information or have it copied or altered, or to disclose it or make it available to third parties.
b. Buyer guarantees seller that it is authorised to use all images, logos, texts, labels, models and marks (including models, samples, drawings, or designs submitted by buyer) that seller is to use for or on products at buyer's request. Buyer indemnifies seller against any third-party claims based on a violation of intellectual property rights with regard to images, logos, texts, labels, models and marks used by seller at the request of buyer.
c. If seller sold buyer unbranded or white label products based on models, samples, patterns, drawings, or designs submitted by buyer, buyer guarantees that these models, samples, patterns, drawings, or designs do not violate any third party's rights (including intellectual property rights). Buyer indemnifies seller against any and all third-party claims based on a breach of this guarantee.
d. Buyer guarantees that all legal requirements regarding the data to be obtained, specifically including the requirements provided in the applicable privacy laws such as the General Data Protection Regulation, are and shall be strictly complied with. Buyer shall provide seller with all requested information related to the above in writing and without delay.
e. Buyer indemnifies seller against any claims from people whose personal data are processed, or against third-party claims for damages, fines, settlements, criminal-law transaction proposals, or otherwise, and shall fully compensate seller for such damages. The above only applies to personal data and/or processing acts for which buyer is responsible under European or Dutch law.
- a. In any case, regardless of the grounds, including but not limited to culpable failure, tort, and damage caused by third parties hired by seller, seller's liability is limited to the damage to the goods or services provided or delivered by seller to buyer that is the direct result of the event that caused the damage. Seller is not liable for damage related to personal injury or death, immaterial damage, or consequential loss, including but not limited to lost profit, suffered losses, incurred costs, and damages caused by production or business interruption or stagnation.
b. Seller's liability for damages referred to in the previous paragraph is limited to the amount that seller is insured against and that is paid by the insurer with regard to the damage in question. In case it turns out that, for any reason, no insurance is in place, seller's liability is limited to a maximum of twice the net invoice value of the delivery of which the object or service that caused the damage was part.
c. The limitation of seller's liability as provided in the previous paragraphs of this article does not apply if the damage was the result of seller's gross fault or malicious intent.
d. Except in case of seller's gross fault or malicious intent, buyer hereby indemnifies seller against any and all third-party claims, on any ground, regarding compensation for damages, costs, or interest related to delivered goods or provided services, resulting from the use of the delivered or provided services or caused by or resulting from any legal relationship between seller and buyer.
e. Any and all claims that buyer may have against seller expire by lapse of 3 months after buyer discovered or should reasonably have discovered the damage and, in any case, by lapse of 24 months after the goods were delivered or the services provided to buyer.
- a. In case buyer suspects or becomes aware of a defect, in a product delivered by seller, that justifies a product recall, buyer shall notify seller of this immediately and of their own accord, stating at least the following:
1) the type of defect;
2) the production details of the product that was delivered by seller and may be unsafe;
3) the name(s) of the person(s) who purchased the possibly unsafe product from buyer, if and insofar as permitted under privacy laws;
4) any other information that buyer deems relevant.
b. If, in seller's opinion, more information is required for the investigation into a possibly unsafe product or to take the necessary precautions, buyer shall provide seller with all relevant information that they have or should reasonably have access to, at seller's first request.
c. Seller and buyer shall then assess, by mutual agreement, if and what measures should be taken to mitigate the danger caused by a possible defect in a product delivered by seller. Such measures may include a product recall.
d. Buyer shall always refrain from behaviour or actions that will or may harm seller's reputation in any way.
- Force majeure that delays or prevents the delivery of goods releases seller from their obligation to deliver on time and shall not lead to any liability on seller's side whatsoever. Force majeure includes any and every circumstance that is beyond seller's control, including but not limited to: COVID-19 outbreak, war, riots, strike, government-imposed measures (including sanctions), seller's business interruption of any nature, disruptions in the normal supply of raw or auxiliary materials to seller, and stagnation of product transport by seller's chosen means of transport. If seller already complied with part of their obligations or has only been able to comply with part of their obligations when the force majeure arises, they are authorised to invoice buyer for the already delivered part or the deliverable part separately, and buyer has the obligation to pay such invoice as if it were an independent agreement. Seller shall also be authorised to claim force majeure if the circumstance that prevents (further) compliance arises after seller should have complied with their commitment.
- Seller is authorised to sell items to third parties that buyer refused or returned. Seller has no obligation to remove buyer's marks or signs if the removal of such marks or signs will damage or depreciate the items in question.
- Seller and buyer shall not disclose any confidential information about the other to any third party or use such information for any other purpose than the agreement between them or the execution thereof at any moment, except (i) insofar as such disclosure is required by or pursuant to the law or an authorised public body, or (ii) insofar as such information is disclosed to a professional advisor who is bound by the same confidentiality obligations as provided in this article and, even in that case, only insofar as such information is used for legitimate purposes, or (iii) insofar as such information has become or is made generally known through nobody's wrongful act or if the person in question could not reasonably have known that such disclosure was illegal.