General terms and conditions Wholfe

Article 1. General

These terms and conditions apply to every offer, quotation and agreement between Wholfe, hereinafter referred to as: “User”, and a Client to which User has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.

The present terms and conditions also apply to agreements with the User, the execution of which requires the User to involve third parties.

These general terms and conditions are also written for the User’s employees and its management.

The applicability of any purchase or other terms and conditions of the Client is explicitly rejected.

If one or more stipulations in these general terms and conditions are wholly or partially void or voidable at any time, the other stipulations in these general terms and conditions will remain fully applicable.

User and the Client will then consult in order to agree on new provisions to replace the void or nullified provisions, taking into account as much as possible the purpose and meaning of the original provisions.

If there is a lack of clarity concerning the interpretation of one or more provisions of these general terms and conditions, the interpretation must be made ‘in the spirit’ of these provisions.

If a situation arises between the parties that is not regulated in these general terms and conditions, then this situation should be assessed in the spirit of these general terms and conditions.

If the User does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that the User would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases.

Article 2. Quotes and offers

All the User’s quotations and offers are without obligation, unless the quotation stipulates a period for acceptance.
If no acceptance period is stipulated, no rights whatsoever can be derived from the quotation or offer if the product to which the quotation or offer relates is no longer available in the meantime.

User cannot be held to his quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.

The prices stated in an offer or quotation are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs,unless otherwise stated.

If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer then the User is not bound by it. The agreement will not be concluded in accordance with this deviating acceptance, unless the User indicates otherwise.

A compound quotation does not oblige the User to perform part of the order at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.

Article 3. Contract term; terms of execution, passing of risk, execution and modification of agreement; price increase

The agreement between the User and the Client is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties explicitly agree otherwise in writing.

If a deadline has been agreed upon or given for the execution of certain work or for the delivery of certain goods, this is never a deadline. If a term is exceeded, the Client should therefore give the User written notice of default. The User should be offered a reasonable term to still execute the agreement.

User will execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good craftsmanship. All this based on the then known state of science.

User is entitled to have certain activities performed by third parties. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is explicitly excluded.

If work is performed by the User or third parties engaged by the User in the context of the assignment at the Client’s location or a location designated by the Client, the Client shall provide the facilities reasonably required by those employees free of charge.

Delivery takes place ex User’s company. The Client is obliged to take delivery of the goods at the time they are made available to him. If the Client refuses to take delivery or is negligent in providing information or instructions necessary for delivery, the User will be entitled to store the goods at the Client’s expense and risk. The risk of loss, damage or decrease in value passes to the Client at the moment items are available to the Client.

User is entitled to execute the agreement in several phases and to invoice the part thus executed separately.

If the agreement is executed in phases, the User may suspend execution of those parts belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.

The Client ensures that all information, which the User indicates is necessary or which the Client should reasonably understand is necessary for executing the agreement, is provided to the User in time. If the information required for executing the agreement has not been supplied to the User in time, the User is entitled to suspend execution of the agreement and/or charge the Client for the additional costs resulting from the delay according to the then usual rates. The execution period will not start until after the Client has made the information available to the User. The User is not liable for damage, of whatever nature, due to the fact that the User has assumed incorrect and/or incomplete data provided by the Client.

If during the execution of the agreement it appears that for a proper execution it is necessary to modify or supplement it, the parties will timely and in mutual consultation adapt the agreement. If the nature, scope or content of the agreement, whether or not at the request or indication of the Client, the competent authorities et cetera, is changed and the agreement is thereby changed in qualitative and / or quantitative respect, this may have consequences for what was originally agreed. This may also increase or decrease the amount originally agreed upon. User will give as much advance notice as possible. An amendment to the agreement may furthermore change the originally given term of execution. The Client accepts the possibility of amending the agreement, including the change in price and term of execution. Translated with (free version)

If the agreement is amended, including a supplement, the User is entitled to execute it only after the competent person within the User has given his approval and the Client has agreed to the price and other conditions stated for its execution, including the time to be determined for its execution. Failure to execute or not immediately execute the amended agreement does not constitute default on the part of the User and is no ground for the Client to cancel or terminate the agreement.

Without being in default, the User can refuse a request to amend the agreement, if this could have consequences, qualitatively and/or quantitatively, for instance for the work to be performed or goods to be delivered in that context.

If the Client should default in properly complying with what he is bound to do towards the User, then the Client is liable for all damage on the part of the User caused directly or indirectly as a result.

If the User agrees with the Client on a fixed fee or fixed price, the User is nevertheless entitled to increase this fee or price at any time, without the Client being entitled to dissolve the agreement for that reason, if the price increase results from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages et cetera or on other grounds that could not reasonably have been foreseen when the agreement was concluded.

If the price increase other than as a result of an amendment to the agreement exceeds 10% and takes place within three months of entering into the agreement, only the Client entitled to invoke Title 5, Part 3 of Book 6 of the Dutch Civil Code shall be entitled to dissolve the agreement by means of a written statement, unless the User is still prepared to execute the agreement on the basis of what was originally agreed; if the price increase results from a power or an obligation resting on the User pursuant to the law; if it has been stipulated that delivery will take place more than three months after conclusion of the agreement; or, in the case of delivery of an item, if it has been stipulated that delivery will take place more than three months after the purchase. Translated with (free version)

Article 4. Suspension, dissolution and early termination of the agreement

The User is authorized to suspend compliance with his obligations or dissolve the agreement, if the Client does not comply, does not comply in full or does not comply in time with his obligations under the agreement, if after the conclusion of the agreement circumstances have come to the User’s attention which give him good reason to fear that the Client will not comply with his obligations, if the Client, upon entering into the agreement, was requested to provide security for the fulfillment of his obligations under the agreement and this security has not been provided or is insufficient or if, due to a delay on the part of the Client, the User can no longer be expected to fulfill the agreement against the originally agreed conditions.

Furthermore, the User is entitled to dissolve the agreement if circumstances arise of such a nature that compliance with the agreement is impossible or if other circumstances arise of such a nature that the User cannot reasonably be required to maintain the agreement unaltered.

If the agreement is dissolved, the User’s claims against the Client are immediately due and payable.

If the User suspends compliance with his obligations, he retains his claims under the law and agreement.

If the User proceeds with suspension or dissolution, he will in no way be obliged to compensate for damages and costs caused in any way.

If the dissolution is attributable to the Client, the User will be entitled to compensation for damages, including costs, incurred directly and indirectly.

If the Client does not meet his obligations stemming from the agreement and this non-compliance justifies dissolution, the User is entitled to dissolve the agreement immediately and with immediate effect, without any obligation on his part to pay any compensation or indemnification, while the Client is obliged to pay compensation or indemnification on account of default.

If the agreement is terminated prematurely by the User, the User, in consultation with the Client, will take care of transferring any outstanding work to third parties. This unless the termination is attributable to the Client. If the transfer of the work involves extra costs for the User, these will be charged to the Client. The Client is bound to pay these costs within the term stated, unless the User indicates otherwise.

In case of liquidation, of (application for) suspension of payments or bankruptcy, of attachment – if and insofar as the attachment has not been lifted within three months – at the Client’s expense, of debt restructuring or another circumstance due to which the Client can no longer dispose freely of his assets, the User is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on his part to pay any compensation or indemnification. compensation or indemnification. The User’s claims against the Client are in that case immediately due and payable.

If the Client cancels a placed order in whole or in part, the work done and the items ordered or prepared for it, plus any supply and delivery costs thereof and the working time reserved for executing the agreement, will be charged in full to the Client. Translated with (free version)

Article 5. force majeure

The User is not obliged to fulfill any obligation towards the Client if he is hindered to do so as a result of a circumstance that is not due to fault, and for which he is not accountable by virtue of the law, a legal act or generally accepted practice.

In these general terms and conditions, force majeure is defined, in addition to its definition in law and jurisprudence, as all external causes, foreseen or unforeseen, over which the User cannot exercise any control, but which prevent the User from fulfilling his obligations. This includes strikes in the company of the User or third parties. The User is also entitled to invoke force majeure if the circumstance preventing (further) compliance with the agreement occurs after the User should have fulfilled its obligation.

User may suspend the obligations under the agreement during the period that the force majeure continues.
If this period lasts longer than two months, either party is entitled to dissolve the agreement, without any obligation to compensate the other party for damages.

Insofar as the User has already partially fulfilled his obligations from the agreement at the time of the occurrence of force majeure or will be able to fulfil them, and independent value can be attributed to the fulfilled or still to be fulfilled part, the User is entitled to invoice the part already fulfilled or still to be fulfilled part separately. The Client is bound to pay this invoice as if it were a separate agreement.

Article 6. payment and collection costs

Payment should always be made within 14 days of the invoice date, in a manner indicated by the User in the currency invoiced, unless otherwise indicated in writing by the User. User is entitled to invoice periodically.

If the Client remains in default of timely payment of an invoice, the Client is legally in default. The Client shall then owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall be due. The interest on the amount due and payable will be calculated from the
moment that the Client is in default until the moment of payment of the amount due in full.

User is entitled to have the payments made by the Client go first of all to reduce the costs, then to reduce the interest that has fallen due and finally to reduce the principal sum and current interest. User may, without thereby being in default, refuse an offer of payment if the Client designates a different order for the allocation of payment. User can refuse full repayment of the principal sum, if this does not include the interest still due, current interest and collection costs.

The Client is never entitled to set off amounts owed to the User. Objections to the amount of an invoice do not suspend the payment obligation. The Client not entitled to invoke Section 6.5.3 (Articles 231 to 247 Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.

If the Client is in default or omission in the (timely) fulfillment of its obligations, all reasonable costs to obtain satisfaction out of court shall be borne by the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the User has incurred higher costs for collection that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Client. The Client shall also owe interest on the collection costs due.
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Article 7. retention of title

Anything delivered by the User within the framework of the agreement remains the User’s property.

Anything delivered by the User, which, pursuant to paragraph 1, is subject to retention of title, may not be resold and may never be used as a means of payment. The Client is not authorised to pledge or otherwise encumber anything subject to retention of title.

The Client must always do everything that can reasonably be expected of him to secure the User’s property rights. If third parties seize goods delivered under retention of title or wish to establish or assert rights to them, the Client is obliged to inform the User of this immediately. Furthermore, the Client undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage and against theft and to make the policy of this insurance available for inspection by the User on demand. In the event of any insurance payment, the User will be entitled to this money. Insofar as necessary, the Client undertakes vis-à-vis the User to cooperate in advance with anything that may (appear to) be necessary or desirable in that context.

In case the User wishes to exercise his property rights indicated in this article, the Client gives unconditional and irrevocable permission in advance to the User and third parties to be appointed by the User to enter all those places where the User’s property is located and to take it back.

Article 8. Warranties, investigations and complaints, limitation period

The goods to be delivered by the User meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in the event of normal use in the Netherlands. The guarantee mentioned in this article applies to items destined for use within the Netherlands. In case of use outside the Netherlands, the Client should himself verify whether they are suitable for use there and meet the conditions set for them. User may in that case set other guarantee and other conditions with respect to the goods to be delivered or activities to be performed.

The guarantee mentioned in paragraph 1 of this article applies for a period of 1 month after delivery, unless the nature of the delivered goods results otherwise or the parties have agreed otherwise. If the guarantee provided by the User concerns a good produced by a third party, the guarantee is limited to that provided by the producer of the good, unless stated otherwise.

Any form of guarantee will lapse if a defect originated as a result of or arising from injudicious or improper use thereof or use after the expiration date, improper storage or maintenance thereof by the Client and/or third parties when, without the User’s written consent, the Client or third parties have made changes or tried to make changes to the item, attached other items to it that should not have been attached to it or if these were processed or treated in a manner other than prescribed. The Client is also not entitled to a guarantee if the defect originated due to or as a result of circumstances beyond the User’s control, including weather conditions (such as, for example, but not limited to extreme rainfall or temperatures) et cetera.

The Client is obliged to inspect the delivered goods, or have them inspected, immediately at the time that the goods are made available to him or the relevant work has been carried out, respectively. In doing so, the Customer must examine whether the quality and/or quantity of the goods delivered corresponds to what has been agreed and meets the requirements that the parties have agreed in this respect. Any visible defects must be reported to the User in writing within seven days after delivery. Any non-visible defects must be reported to the User in writing immediately, but in any case at the latest within fourteen days of their discovery. The report must contain as detailed a description as possible of the defect, so that the User is able to respond to respond adequately. The Client must give the User the opportunity to investigate a complaint (or have it investigated).
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If the Client complains in time, this does not suspend his payment obligation. In that case the Client also remains bound to purchase and pay for the other goods ordered and what he has ordered the User to do.

If a defect is reported later, the Client is no longer entitled to repair, replacement or compensation.

If it is established that an item is defective and a complaint about this has been filed in time, the User, at the User’s discretion, will replace the defective item within a reasonable term after receiving it back, or, if returning the item is not reasonably possible, written notification about the defect from the Client, or take care of repairing it or pay compensation to the Client. In case of
replacement, the Client is bound to return the replaced item to the User and transfer ownership thereof to the User, unless the User indicates otherwise.

If it is established that a complaint is unfounded, the costs incurred as a result, including investigation costs, incurred on the User’s side as a result, will be fully borne by the Client.

After the guarantee period has expired, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to the Client.

Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against the User and the third parties involved by the User in executing an agreement is one year.

Article 9. Liability

Should the User be liable, then this liability is limited to what is regulated in this provision.

The User is not liable for damage, of whatever nature, resulting from the fact that the User has relied on incorrect and/or incomplete information provided by or on behalf of the Client.

Should the User be liable for any kind of damage, the User’s liability is limited to a maximum of twice the invoice value of the order, at least that part of the order to which the liability relates.

The User’s liability will in any case always be limited to the amount paid out by its insurer in the relevant case.

User is only liable for direct damage.

Direct damage is exclusively understood to mean the reasonable costs incurred to determine the cause and scope of the damage, insofar as the determination relates to damage in the sense of these terms and conditions, any reasonable costs incurred to have the User’s faulty performance meet the agreement, insofar as they can be attributed to the User, and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limiting direct damage as referred to in these general terms and conditions.
direct damage as referred to in these general terms and conditions. User shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business stagnation.

The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of the User or its executive employees.

Article 10. Indemnification

The Client indemnifies the User against any claims from third parties, who suffer damage in connection with executing the agreement and whose cause can be attributed to parties other than the User. If the User should be addressed by third parties for that reason, the Client is bound to assist the User both extra-judicially and judicially and immediately do everything that can be expected of him in that case. Should the Client fail to take adequate measures, the User is entitled, without notice of default, to do so himself. All costs and damages incurred on the part of the User and third parties as a result will be entirely at the Client’s expense and risk.

Article 11. Intellectual property

User reserves the rights and powers to which he is entitled under the Copyright Act and other intellectual laws and regulations. User is entitled to use the knowledge gained by the execution of an agreement on his side for other purposes as well, to the extent that no strictly confidential information of the Client is brought to the knowledge of third parties.

Article 12. Applicable law and disputes.

All legal relationships to which the User is a party are governed exclusively by Dutch law, even if an obligation is fully or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.

The court in the User’s place of business is exclusively competent to take cognizance of disputes, unless the law imperatively prescribes otherwise. Nevertheless, the User is entitled to submit the dispute to the court that has jurisdiction according to the law.

Parties will only appeal to the court after they have made every effort to settle a dispute by mutual agreement.