GENERAL TERMS AND CONDITIONS
Of: Wyroha B.V., under the trade names Kulu Trading and Toms Wholesale Distribution
Article 1: Definitions
Seller : Wyroha B.V., the user of these General Terms and Conditions;
Buyer : the Seller’s counterparty, the customer, the client; as specified on page 1.
Agreement : the agreement between the Seller and the Buyer.
Article 2 General
2.1 These General Terms and Conditions will apply to all offers and Agreements between the Seller and the Buyer, to the extent that these Terms and Conditions have not expressly been deviated from by the parties in writing.
2.2 The current General Terms and Conditions will also apply to all Agreements with the Seller for the performance of which the Seller uses the services of third parties.
2.3 The applicability of the Buyer’s general terms and conditions is hereby explicitly excluded, unless the parties have agreed otherwise in writing.
2.4 If certified products are supplied, the provisions of the certificate will take precedence, with these General Terms and Conditions assuming supplementary status.
2.5 If one or more provisions of these General Terms and Conditions prove null and void or are nullified, the remaining provisions of these General Terms and Conditions will continue to apply.
Article 3 Offers/quotations/prices
3.1 All offers, whatever their form, will be without obligation, unless a term for acceptance is stated in the offer.
3.2 Agreements to which the Seller is a party will only be considered to have been concluded:
a) after an Agreement drafted for that purpose has been signed by both parties; or
b) following written confirmation by the Seller of an order placed by the Buyer; or
c) in the absence thereof, pursuant to the actual delivery ex warehouse of the products sold.
3.3 In the event of an oral Agreement, the invoice will be considered to contain a correct and complete representation of the Agreement, unless a complaint is lodged within 30 days of the invoice date.
3.4 If a natural person concludes an Agreement on behalf or at the expense of another natural person, he/she will be deemed to declare – by signing the Agreement – that he/she is authorised to do so. This person, in addition to the other natural person, will be jointly and severally liable for all obligations arising from the Agreement.
3.5 If the acceptance deviates from the offer contained in the quotation, the Seller will not be bound to same. In that event, the Agreement will not be concluded in accordance with that deviating acceptance, unless the Seller indicates otherwise.
3.6 A composite quotation will not oblige the Seller to supply a part of the products included in the offer or quotation for a corresponding part of the price stated.
3.7 The prices stated in the Agreements will apply to delivery ex warehouse, in euro, including loading costs, exclusive of Dutch VAT, government levies, export duties, shipping costs, freight charges, handling expenses and packaging costs, unless provisions to the contrary have been explicitly agreed.
3.9 The prices are based on the rates, wages, taxes, fuel prices, levies, prices, etc. as such apply on the date of the offer or the conclusion of the agreement, as the case may be, under normal circumstances and during normal working hours.
3.10 Because the Products are subject to price fluctuations, the Seller may pass on (after 1 month price rises exceeding 5%) price rises if, between the time of acceptance and the time of the delivery, price changes have occurred with respect to, for instance, exchange rates, wages, raw materials or packaging materials.
Article 4 Performance of the Agreement
4.1 The Seller will perform the Agreement to the best of its knowledge and ability.
4.2 If and to the extent necessary for a satisfactory performance of the Agreement, the Seller will be entitled to engage third parties for certain activities.
4.3 The Seller will not be liable for damage, of whatever nature, caused by the Seller taking action based on incorrect or incomplete data provided by the Buyer.
4.4 If the supply is delayed due to factors for which the Buyer is responsible, the Seller will be compensated by the Buyer for any damage and costs ensuing from the delay.
4.5 The Buyer will indemnify the Seller against any claims of third parties that may incur damage in connection with the performance of the Agreement and which is attributable to the Buyer.
Article 5 Delivery
5.1 Delivery will be made ex Seller’s warehouse, unless the parties agree otherwise.
5.2 The carrier will collect the amounts payable C.O.D. from the recipient or the Buyer when the consignment is delivered and, if agreed, will subsequently pay the Seller the relevant amounts. The Seller will be entitled to deduct the costs of transport from the sum received.
5.3 A recipient or Buyer that knows at the time of delivery that a C.O.D. amount is payable on the goods will be obliged to pay the carrier the amount it owes the Seller.
5.4 If a recipient or Buyer refuses to take possession of the consignment offered C.O.D., the carrier will return the consignment to the Seller at the Buyer’s expense, unless the Seller stipulates otherwise.
5.5 The Buyer will be obliged to take delivery of the Products at the time that the Seller offers or delivers same to it or has same delivered to it by third parties, or at the time at which the Products are made available to it pursuant to the Agreement.
5.6 If the Buyer refuses to take delivery or fails to provide information or instructions necessary to effect the delivery, the Seller will be entitled to store the products at the Buyer’s expense and risk.
5.7 If the Buyer does not take delivery of the products within a week, the Seller will be entitled to sell the products to another party. If it is unable to do so, the Seller will be entitled to destroy the products. The damage incurred by the Seller in selling the products to another party or in destroying them will be borne by the Buyer.
5.8 If the Seller has stated a delivery period, same must be deemed to be indicative. A stated delivery date may therefore never be considered a firm deadline. If a term is exceeded, the Buyer must give the Seller written notice of default.
5.9 If the Seller requires information from the Buyer in the context of the Agreement’s performance, the delivery period will commence after the Buyer has made such information available to the Seller.
5.10 The Seller will be entitled to deliver the products in partial shipments. The Seller will be entitled to issue separate invoices for partial shipments.
Article 6 Inspections, complaints
6.1 The Buyer will be obliged to inspect the Products supplied, or have third parties inspect same, at the time of delivery/transfer, though in any event within 2 days. In doing so, the Buyer should inspect whether the quality and quantity of the goods delivered are in accordance with that which was agreed.
6.2 If the Buyer has been shown a sample, that sample must be presumed to have been shown as an indication only, without the good having to correspond to same, unless it has been expressly agreed that the good will correspond to same. Any deviations in quality, colour, scent, weight, concentration, quantity and size between 0 and 5% must be accepted by the Buyer.
6.3 Any visible shortfalls must be reported to the Seller in writing within 2 working days of delivery. The notice of default must specify the defect in as much detail as possible, so that the Seller is able to respond adequately. Shortfalls not immediately visible must be reported to the Seller in writing within 10 working days of delivery.
6.4 If a timely complaint is submitted pursuant to the preceding paragraph, the Buyer will remain obliged to take delivery of and pay for the purchased products. If the Buyer wishes to return defective products, it may only do so after obtaining the Seller’s written permission, in the manner indicated by the Seller, at the Buyer’s expense, in undamaged condition and in the original packaging.
6.5 The Buyer must enable the Seller, upon the Seller’s first request, to inspect the goods sold in order to verify whether the complaint is well-founded.
6.6 If a complaint is well-founded, the Seller will replace the supplied goods, unless this has become demonstrably pointless to the Buyer by that time. If this is the case, the Buyer must so inform the Seller in writing. The Seller will in all cases only be liable within the limits of the Articles ‘Warranty’ and ‘Liability’.
Article 7 Payment
7.1 Payment must be made in cash, in euro, upon delivery or within the payment term stated on the invoice, unless the parties agree otherwise. Objections to amounts stated in invoices will not suspend the corresponding payment obligations.
7.2 The Seller may require full or partial advance payment. If the Buyer fails to comply with this requirement, the Seller will not be obliged to honour the Agreement or make the supply.
7.3 If the Buyer fails to make payment within the period agreed, it will be in default by operation of law. In that event, the Buyer will owe the Seller 1.5% in interest per month or part of a month, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the highest interest rate will apply. The interest on the exigible amount will be calculated from the time that the Buyer is in default until the time of full payment.
7.4 If the Buyer is wound up, is declared bankrupt or files for bankruptcy, is admitted to statutory composition pursuant to the Dutch Natural Persons Composition Act [Wet schuldsanering natuurlijke personen], is placed under guardianship, attachment is levied against it or it is granted a suspension of payments – provisional or otherwise –, the Seller’s claims in respect of the Buyer will become exigible forthwith.
7.5 Payments will first be used to cover the costs, then to cover any interest due and finally to cover the principal sum and the accrued interest.
Article 8 Collection costs
8.1 If the Buyer is in breach of contract or in default of performance or timely performance of its obligations, all reasonable costs incurred in obtaining extra-judicial payment will be borne by the Buyer. The collection costs will amount to 15% of the outstanding principal owed, with the minimum amount being EUR 500.
8.2 If the Seller has incurred higher costs which were reasonably necessary, such costs will also qualify for reimbursement. Any reasonable court costs and enforcement costs will also be borne by the Buyer.
Article 9 Retention of title
9.1 All Products supplied by the Seller will remain the Seller’s property until the Buyer has fulfilled all its obligations ensuing from the Agreements concluded with the Seller.
9.2 The Buyer will not be entitled to pledge, lease or encumber in any other way the goods covered by the retention of title, unless the parties have agreed otherwise.
9.3 If third parties levy attachment on the products supplied subject to the retention of title or wish to create or enforce rights with respect to same, the Buyer will be obliged to inform the Seller thereof as soon as possible.
9.4 Any Products supplied by the Seller that are covered by the retention of title pursuant to paragraph 1 of this Article may only be sold on within the context of normal business operations and may never be used as a means of payment.
9.5 Should the Seller wish to exercise its rights of retention of title as set forth in this Article, the Buyer hereby grants unconditional and irrevocable permission to the Seller or any third parties to be designated by the Seller to enter those places where the Seller’s property is located and to recover the Products.
Article 10 Guarantee
10.1 The goods supplied by the Seller will be in accordance with the requirements and product information set by the producer and customary in the relevant branch of industry.
10.2 This warranty will be limited to:
- deliveries to Buyers within the EU;
- the manufacturer’s warranty.
10.3 This warranty will lapse: - in the event of injudicious or improper use, storage or transport;
- if the Products have been processed, confused or treated by the Buyer or by third parties; and
- in the event of exposure to hazardous substances or temperatures which are too high or too low;
- if the product supplied is not used and processed in accordance with the operating instructions; or
- in the event of use for a purpose other than that stated by the Buyer to the Seller or for a purpose for which the good is not suitable.
10.4 As long as the Buyer fails to perform its obligations arising from the Agreements concluded between the parties, it cannot invoke this warranty provision.
Article 11 Suspension and dissolution
11.1 The Seller will be entitled to suspend performance of its obligations or to dissolve the Agreement in the following events:
- if the Buyer fails to perform the obligations arising from the Agreement or fails to perform them in good time or in full;
- If the Buyer is wound up, is declared bankrupt or files for bankruptcy, is admitted to statutory composition pursuant to the Dutch Natural Persons Composition Act [Wet schuldsanering natuurlijke personen], is placed under guardianship, attachment is levied against it or it is granted a suspension of payments; in the event of circumstances of which the Seller has learned following the Agreement’s conclusion that provide good reason for fearing that the Buyer will not perform its obligations, or will not perform such in good time or in full; if there is good reason to fear that the Buyer will only perform its obligations in part or will not perform such properly, suspension will only be permitted to the extent that such is justified by the relevant failure; and
- in the event that, upon the Agreement’s conclusion, the Buyer was requested to provide security for the performance of its obligations arising from same Agreement and such security has not been provided or is insufficient. As soon as security has been provided, the right to suspend performance will lapse, unless the performance has been unreasonably delayed as a result.
11.2 In addition, the Seller will be entitled to dissolve the Agreement or have it dissolved if circumstances arise of such a nature that performance of the Agreement is impossible or can no longer be required pursuant to standards of fairness and reasonableness, or if any other circumstances arise of such a nature that continued unamended maintenance of the Agreement can no longer reasonably be expected.
11.3 If the Agreement is dissolved, the Seller’s claims in respect of the Buyer will become immediately due and payable. If the Seller suspends performance of its obligations, it will retain its rights and claims pursuant to the law and the Agreement.
11.4 The Seller will at all times retain the right to claim damages.
Article 12 Cancellation
12.1 If the Buyer wishes to cancel an Agreement after its conclusion with the Seller, it will be charged 10% of the order price agreed upon, including Dutch VAT, in cancellation costs, without prejudice to the Seller’s right to full damages, including loss of profit.
12.2 If, in the event of cancellation, the Buyer refuses to purchase products already acquired by the Seller, the Buyer will be obliged to pay the Seller all ensuing costs.
12.3 Cancellation must be effected in writing, or at least confirmed by the Seller in writing.
Article 13 Liability and indemnification
13.1 If Products supplied by the Seller are defective, the Seller’s liability to the Buyer will be limited to the provisions laid down in these Terms and Conditions under the heading ‘Warranty’.
13.2 Under no circumstances will the Seller be liable for the composition or the presence of any substances prohibited by law or bacteria in the goods supplied. The Buyer must pursue the manufacturer for any liability claims in this respect.
13.3 The Buyer is responsible for ascertaining the laws and requirements imposed in its own country. The Seller will not be liable if the Buyer’s country prohibits the goods the Buyer has purchased from being sold.
13.4 The Seller will never be liable for the reduced quality of the goods supplied more than two days after delivery, since the Seller will be unable to remedy the quality and quantity of the goods after delivery.
13.5 If the Seller is liable for any direct damage, this liability will be limited to the amount paid out by its insurer, or in any event to the market value of the products.
13.6 The Seller will under no circumstances be liable for indirect damage, including consequential damage, loss of turnover and profit, loss of savings and any damage due to an interruption in business operations.
13.7 If the Seller is held liable by a third party for damage for which it is not liable pursuant to the Agreement with the Buyer or pursuant to these Terms and Conditions, the Buyer will fully indemnify it in that respect.
13.8 Under no circumstances will the Seller be liable for:
deviations, damage, faults and defects that have gone unnoticed in the products/samples approved by the Buyer;
- damage resulting from raw materials that have been declared unfit because the environmental or other laws have changed since the supply;
- damage as a consequence of use that is not in accordance with the operating instructions or the product specifications.
13.9 The Seller will under no circumstances be liable for damage ensuing from any advice given. Advice will always be given on the basis of the facts and circumstances known to the Seller and of mutual consultations, in which respect the Seller will always use the Buyer’s intention as a guideline and starting point.
13.10 The Buyer should ascertain in advance whether the purchased goods are suitable for the purpose for which it intends to use same. Should it emerge in retrospect that the purchased good is not suitable for its intended use, the Seller cannot be held liable for any ensuing damage.
13.11 The limitations of liability with respect to direct damage laid down in these Terms and Conditions will not apply if the damage is attributable to an intentional act or omission or gross negligence on the part of the Seller or its employees.
Article 14 Passage of risk/transport
14.1 The risk with respect to the loss of or damage to the products that are the subject of the Agreement will pass to the Buyer at the point in time at which same products are legally and/or factually delivered to the Buyer and therefore come under the Buyer’s control or under the control of a third party designated by the Buyer.
14.2 If the Seller is to provide for the transport or storage of the products that are the subject of the Agreement, this will be fully at the Buyer’s expense and risk.
14.3 If and to the extent that the Seller undertakes to transport, store, ship, or package the goods, or undertakes similar duties with regard to the goods, the Seller has the discretion to determine how such duty will be fulfilled. Unless otherwise agreed, the Buyer will assume all risks, including the risk of any negligence or omission on the carrier’s part.
14.4 Any specific wishes of the Buyer regarding transport, dispatch or storage will be performed only if the Buyer has stated that it will bear the corresponding additional costs.
Article 15 Force Majeure
15.1 The parties will not be obliged to fulfil any obligation if they are prevented from doing so due to a circumstance which cannot be attributed to gross negligence or an intentional act or omission on the part of the party that is invoking that circumstance, and which the law, a juristic act or a generally prevailing opinion does not direct will be borne by that party.
15.2 In these General Terms and Conditions, the term ‘force majeure’ should be understood to mean, in addition to its meaning according to the law and in case law, all external causes, foreseen or unforeseen, which the Seller cannot influence, such as tailbacks, power/computer failures, export impediments, accidents, theft, fire, illness among staff and delays in supplies by suppliers, as a result of which the Seller is unable to perform its obligations, or to perform same on time. This will include strikes at the Seller's company.
15.3 The Seller will also be entitled to invoke force majeure if the circumstance preventing performance or further performance arises after the Seller should have performed its obligations.
15.4 The parties may suspend the obligations ensuing from the Agreement while the situation of force majeure lasts. If this period lasts more than one month, either party may dissolve the Agreement without being obliged to pay the other party any damages.
15.5 Insofar as the Seller has partly performed its obligations under the Agreement or is able to partly perform same at the time that the situation of force majeure first occurs, and that part performed or to be performed has independent value, the Seller will be entitled to invoice the part performed or to be performed separately. The Buyer will be obliged to pay that invoice as if it pertained to a separate Agreement.
Article 16 Intellectual property and copyrights
16.1 Without prejudice to the provisions in these General Terms and Conditions, the Seller reserves the rights and powers vested in it pursuant to intellectual property law and the Dutch Copyright Act [Auteurswet].
16.2 All goods supplied by the Seller, as well as any samples, calculations and brochures provided by the Seller, are exclusively intended for use by the Buyer, and may not be multiplied, resold, adapted, changed, copied, reproduced, made public or brought to the attention of third parties by the Buyer without the Seller’s prior permission, unless the contrary ensues from the nature of the goods sold or the documents provided.
16.3 The Buyer may not remove the producer’s name or brand from the packaging of the goods supplied or the information leaflet.
Article 17 Export
17.1 Unless provisions to the contrary have been agreed upon, payment for export transactions must be effected by means of a confirmed and irrevocable letter of credit issued by a Dutch bank. Based on this letter of credit, both transhipment and partial shipments will be allowed. The letter of credit may be transferred by the Seller.
17.2 The Buyer guarantees that, in the event the import of the goods in the country of destination requires an import certificate or licence, such an import certificate or licence has been or will have been obtained before shipment, in the absence of which the Buyer will be liable for any ensuing damage.
Article 18 Disputes
The competent court in the city or town where the Seller has its registered office will have exclusive jurisdiction to take cognisance of any disputes. Nevertheless, the Seller will be entitled to submit any disputes to the competent court according to the law.
Article 19 Applicable law
All Agreements between the Seller and the Buyer will be governed by Dutch law. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
Article 20 Translations of these Terms and Conditions
The Dutch-language version of these Terms and Conditions is the only authentic version.
In the event of any discrepancy between the Dutch text and a translation, the Dutch text will prevail.
Article 21 Filing of these Terms and Conditions
These Terms and Conditions have been filed at the offices of the Chamber of Commerce and Industry (KVK) under number 32037811.