TERMS & CONDITIONS
General Terms and Conditions of Sale and Delivery WELTER SHELTER B.V.
1. GENERAL PROVISIONS
In these General Terms and Conditions of Sale and Delivery, the capitalised terms listed below and any conjugated forms will have the following meaning, unless a different meaning is explicitly given:
- Offer: an offer without any obligation made by WS in it’s catalogue or on the website to a potential Other Party.
- Defect(s): abnormalities in an item that were present before delivery, as a result of which the item does not (or no longer) comply with the Contract, such as defects and flaws caused by manufacturing and/or material errors or the lack of the (agreed) specific essential requirements and/or characteristics Defects explicitly do not include: safety defects and defects and flaws that arise after delivery, such as but not limited to damage from being dropped and defects and flaws caused by improper use or storage, unprofessional or insufficient maintenance or as a result of normal wear and tear. For the Other Party B, Defects also do not include: damage caused during/due to transport.
- Information: catalogues, designs, depictions and drawings, models, samples, descriptions, promotion materials etc. that are part of the Quotation and/or Offer.
- Force majeure: any condition outside WS’ control and of such a nature that compliance with the Contract cannot reasonably be expected from WS. This includes: strike, riot, war and other disturbances, boycotts, blockades, natural disasters, epidemics, lack of raw materials, impediments and disturbances in transport facilities, extreme weather conditions, fire, machinery breakdown, interruptions in WS’ operations, troubles with suppliers and/or any government regulations.
- Contract of Sale: WS’ acceptance of the Offer, submitted to the Other Party In Writing in the event of a direct (counter) sale
- Remote Sale: the contract as referred to in article 7:46a of the Dutch Civil Code, in which the contract is negotiated solely by the use of one or more remote communications (telephone, fax, Internet, e-mail).
- Quotation: an invitation in writing from WS, without engagement, to a potential Other Party.
- Order: an assignment or order submitted by the Other Party to WS In Writing or orally.
- Order Amount: the total amount that the Other Party owes to WS on the basis of the Contract.
- Order Confirmation: WS’ written acceptance of the Order.
- Contract(s): the contract(s) of sale entered into by WS and the Other Party through an Order Confirmation or a Contract of Sale, to which the Terms and Conditions of Sale apply.
- In Writing or Written: by means of a document signed by authorised representatives of WS and/or the Other Party, or through an electronic document.
- Terms and Conditions of Sale: these General Terms and Conditions of Sale and Delivery of WS.
- Other Party: any natural person not acting in the context of practising a profession or conducting a business (if specified: Other Party A), any natural person acting within the context of practising a profession or conducting a business and any legal entity or other form of business (if specified: Other Party B) that has a contractual relationship with WS on the basis of a Contract concluded with WS. This includes in particular parties on whose instructions or on whose account items are delivered.
- WS: welter shelter B.V., and any subsidiaries and/or sister companies affiliated to the above company.
The date of sending of letters and/or dispatching items shall be the date stated at the post stamp, or the date the fax or the email was sent. If no such date is stated or can be demonstrated, and a dispute exists as to the timeliness of the sending or dispatching, the documents and/or items sent by the Other Party B shall be considered not timely sent.
The Terms and Conditions of Sale shall apply to all Quotations and Offers issued by WS and all Contracts that WS shall enter into with respect to the sale and delivery of moveable property to an Other Party.
If the Other Party would refer to other conditions in its correspondence with respect to the Contract, the applicability of any such conditions is explicitly rejected. Any divergent provisions contained in such other conditions shall be without prejudice to the foregoing.
Any deviation from and/or supplement to the Contract and/or any provision contained in the Terms and Conditions of Sale shall apply only if and insofar as they have been explicitly agreed In Writing, and will relate exclusively to such Contract. WS’ acceptance of any such deviation or supplement will not create any precedent and the Other Party will not be entitled to derive any rights whatsoever from such acceptance in respect of any future Contracts.
The Other Party B with which a contract has been concluded on any given occasion to which these Terms and Conditions of Sale apply, shall accept the applicability of the Terms and Conditions of Sale in respect of later Contracts between it and WS.
3. OFFERS AND QUOTATIONS
Offers and Quotations shall be entirely without engagement and shall not be binding on WS in any way, unless such Offer and/or Quotation explicitly and unequivocally provides otherwise.
An Offer shall be valid for a period of two weeks after the date indicated in the Offer, after which it will expire.
The Information provided by WS shall only be intended as an example. No rights may be derived from such Information. Statements given by WS as to colours, sizes, performance, properties, etc. shall only be indicative and without any obligation. Pictures, descriptions, photo’s, catalogues, advertising material, promotions and the information provided at WS’ website(s) in whatever form, shall not be binding to WS.
4. CONCLUSION OF THE CONTRACT
A Contract will be deemed to have been concluded only if and insofar as WS has confirmed an Order through an (electronic) Order Confirmation, or if and as soon in case of a direct counter sale an Order Confirmation has been handed and/or a Contract of Sale has been concluded, or because WS has actually started executing an Order after receipt.
The Order Confirmation or the Contract of Sale shall be deemed to fully and correctly reflect the content of the Contract that has been concluded.
A Written Offer may be revoked or amended only In Writing and only if WS has received the request to revoke or amend the Offer before the Order Confirmation has been sent, or WS has actually commenced execution of the Contract. A Written Order will in any event become irrevocable if a revocation is not sent within five working days of the date of the Order. WS will be entitled to refuse an Order without being required to provide its reasons for doing so.
5. CONTENT OF THE CONTRACT
The Content of the Contract and the scope of the obligations will be determined exclusively on the basis of the Order Confirmation/the Contract of Sale and the provisions contained in the Terms and Conditions of Sale.
Any supplementary Contracts, commitments or notifications made or undertaken by employees of WS or by other persons on behalf of WS acting as WS’ representative shall be binding on WS only if such Contracts, commitments or notifications have been confirmed In Writing by its directors who are authorised to represent it or by persons whom such directors have authorised to do so.
WS shall not accept any liability whatsoever in respect of the correctness or completeness of Information provided by manufacturers and/or importers.
Minor deviations from the Contract by WS are acceptable if and insofar the Other Party has not indicated its essential requirements before negotiating the Contract, and insofar as WS’ performance shall not substantively change due to the deviations
Prices stated by WS shall be without obligation and are exclusive of VAT. All prices are Ex Works, as stipulated in the Incoterms 2010, delivered within the Netherlands, unless stated otherwise in the Contract.
Prices stated in the Contract or the Order Confirmation are binding. These items can only be marked down after a Written approval of WS. The items can be discounted only in designated sale periods e.g winter sale summer sale.
7. ORDER AND PAYMENTS
Payment terms as agreed at order placement.
If not specified the payment terms are
- for Other Party A, directly after placing the Order;
- for Other Party B, 100% prepayment on delivery
The payment terms are fatal terms. If the Other Party fails to pay within the term stipulated, WS has the right to refer a debt for collection, and in that case the Other Party owe interest as from the due date until the date of full payment of the statutory interest calculated on the unpaid amount as well as any costs related to collecting the amounts invoiced (including any out of court collection costs).
The Other Party does not have the right to set off a debt of WS or to suspend the obligation to pay.
8. DELIVERY AND RECLAMES
Under no circumstances the term of delivery as stated shall be deemed a fixed term.
The Other Party shall be held to take possession of the items at the agreed time. Any costs that may arise due to the Other Party’s refusal to take possession of the items or its failure to do so in a timely manner, including storage costs, shall be charged to the Other Party.
At the time it takes possession of the items, the Other Party will inspect them for externally perceptible Defects. The Other Party B shall inform WS In Writing by registered letter within 8 working days of delivery of any complaints it may have regarding any externally perceptible Defects, clearly specifying the Defects in question.
The Other Party is obliged to have actual possession of the items, in such a way that WS is able to investigate the validity of the complaints. The Other Party is obliged to cooperate sufficiently. Returning the items does not discharge the Other Party of its obligation to pay.
If WS believes the complaints are valid, WS is -at it’s discretion- exclusively obliged to (i) resolve free of charge the defects or (ii) replacement of the items, without being liable to pay any compensation. For replaced items the previous sentence applies also.
In case of a Remote Sale the Other Party A shall be entitled to terminate the Contract, if and to the extent WS has not executed the Contract within 30 days after the originally stated or agreed term of delivery. In such case WS shall not be liable to any indemnity.
9. TERMINATION AND TERMINATION WITH REMOTE SALE
Without further notice of default or judicial intervention is required, WS shall be entitled, at its discretion, to suspend or to partially or fully cancel the Contract immediately by a Written statement in the event that the Other Party is:
- granted a provisional or definitive suspension of payments; or
- filed for a winding-up petition; or
- Liquidated or the company’s operation is terminated unless this is the result of a restructuring or a company merger.
In case of a Remote Sale the Other Party A shall be entitled to cancel the contract within 7 working days of receipt without justification. In case the Other Party A would use this option of cancellation it must inform WS and – at its expenses - return the item to WS within 7 working days of the cancellation date, stating the return number acquired trough the return procedure. The purchase price paid by the Other Party A will be reimbursed to the Other Party A within 30 days of cancellation, under deduction of € 25,00 administration fee. No cancellation shall be possible as to items that are damaged, or no longer are in the original and unopened packaging, or have been used or are no longer suitable to be sold.
During the Contract as well as afterwards both Parties undertake not to disclose confidential Information from the other party. Confidential Information means all Information and knowledge Parties receive by both sides and which Information should be reasonably believed to be confidential.
11. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
All current and future intellectual and industrial property rights (IE-rights) regarding all Information the Other Party receives from WS, the Information shall remain the property of WS. The Other Party is not permitted to
duplicated and/or provided to third parties without WS’ explicit Written permission.
Nor is the Other Party permitted to remove, change or add any proprietary notices, trade marks, trade names or any other intellectual and industrial property right notices regarding the items, including any indication of confidential nature.
12. RESERVATION OF TITLE AND SECURITY
All by WS delivered items shall remain the property of WS until the Other Party has fulfilled every obligation under the Contract, including interest and surcharges. This prevents the Other Party not from buying WS’ items for its normal cause of business.
Until ownership is transferred to the Other Party, it shall not be entitled to lease, rent or allow the use of the item to any third party, or to pledge or otherwise encumber it on behalf of any third party.
If and as long as WS remains the owner of the item, the Other Party shall immediately inform WS
In Writing if the item is attached or any other claim is made in respect of the item or any part of it.
The Other Party is obliged to insure the items which are subject to the retention of title against fire, explosion- and water damage as well as theft and make this insurance policy at first request available for WS.
In case WS claims its ownership rights, the Other Party hereby grants unconditionally and irrevocably a power of attorney to WS or a third party at the discretion of WS, to enter the premises were the items are being held and repossess them.
The total liability of WS shall expressly be limited to the lowest of the following amounts:
(i) the direct loss, up until the amount of the net Order Amount (excl. VAT); or
(ii) regarding loss for whatever reason, to any relating amount actually paid under the liability insurance taken out by WS.
Every liability regarding consequential loss (including loss of turnover and profit) is excluded.
14. FORCE MAJEURE
Non of the Parties shall be held to any compensation to the Other Party if it is unable to fulfil its obligations or is unable to do so in a proper and timely manner as a result of force majeure. In case an agreed delivery period is exceeded due to force majeure, than the delivery period is automatically extended with a compared period as the exceeded period due to the force majeure.
If, as a result of force majeure, WS is permanently unable to perform or is in breach of its obligation, WS has the right to claim an amendment of the Contract in such way that performance for WS is still possible, unless in the given circumstances this cannot reasonably be required form the Other Party and termination is justified
15. APPLICABLE LAW AND CHOICE OF FORUM
The applicability of the Vienna Sales Convention (CISG) is explicitly excluded. Any disputes arising from or as a result of a Contract concluded with WS shall, at WS’ discretion and exclusively under Dutch law, be resolved by the competent court in Amsterdam, the Netherlands.