General Terms & Conditions
GENERAL TERMS AND CONDITIONS OF DELIVERY 2022/2023 of:
Wallsupply BV, Nijverheidsstraat 14, 6135 KJ SITTARD, The Netherlands, South Limburg Chamber of Commerce 14049022
Article 1. Scope of these terms and conditions
- These terms and conditions are applicable to all offers and all agreements between Wallsupply BV, a private limited liability company [besloten vennootschap met beperkte aansprakelijkheid], hereinafter referred to as Wallsupply, and the buyer to which Wallsupply has declared these terms and conditions applicable, insofar as the parties do not expressly deviate from these terms and conditions.
- In the context of these General Terms and Conditions, ‘buyer’ will be taken to mean any natural person or legal entity to which Wallsupply has declared these terms and conditions applicable.
- Any deviations from and/or additions to these General Terms and Conditions are only binding on Wallsupply insofar as it has expressly confirmed the validity thereof in writing.
- If the buyer refers to its own terms and conditions, the terms and conditions of Wallsupply will apply exclusively, unless expressly agreed otherwise in writing.
- Wallsupply is authorized to make changes to these terms and conditions. These changes will take effect at the specified effective time. Wallsupply will send the amended terms and conditions to the buyer in good time. If no effective time has been specified, the changes will take effect vis-à-vis the buyer as soon as the buyer has been notified of such changes.
- The Dutch text of these General Terms and Conditions will prevail over any translations thereof.
- The headings of the Articles in these General Terms and Conditions are not intended to determine or limit the content of scope of the Articles in any way, but merely serve as an indication of their content.
Article 2. Quotes and conclusion of agreement
- Quotes issued by Wallsupply are always without obligation.
- Wallsupply is only bound by any offer it has made if acceptance thereof has been confirmed in writing by the buyer within the period specified, if any, or Wallsupply has effectively started the order/contract. In the latter case, the invoice will serve as written confirmation of acceptance of the contract.
- The prices listed in any quote are exclusive of VAT and the cost of normal or extra packaging, unless specified otherwise.
Article 3. Delivery
- Unless specified otherwise, delivery will take place ex works at the Wallsupply warehouse in Sittard (NL). Transport and shipping of the goods sold will take place entirely at the expense and risk of the buyer.
- The buyer is obliged to accept the goods at the moment they are delivered to them, or at the moment they are made available to them in accordance with the agreement. If the buyer refuses acceptance — following one-off notice of default by Wallsupply — or fails to provide information or instructions required for delivery, the goods will be stored at the expense and risk of the buyer. In such case, all additional costs, including in any case the cost of storage, will be charged to the counterparty.
- If the buyer wishes to collect the agreed goods from Wallsupply, they must notify Wallsupply thereof at least 24 hours prior to such collection. Goods may only be collected with prior written agreement from Wallsupply.
- If the buyer wishes to have the goods delivered by Wallsupply on an on-call basis, the minimum call period for the buyer will be 48 hours. In this case too, transport will occur at the expense and risk of the buyer; Wallsupply accepts no liability in this regard.
Article 4. Delivery time
- Any delivery times must never be taken as an absolute deadline. In case of late delivery, the buyer must serve written notice of default on Wallsupply.
- The delivery time will start as soon as the order has been confirmed in writing by Wallsupply.
- In case of late delivery, Wallsupply cannot be held liable for any damage suffered by the buyer as a consequence thereof, unless such damage is caused by an intentional act and/or deliberate recklessness of Wallsupply. In case of late delivery, the buyer must grant Wallsupply a period of at least half of the delivery time agreed originally to fulfil its obligations. In case of liability as referred to above, compensation for the damage suffered by the buyer will be limited to the maximum amount referred to in Article 13, clause 1 of these general terms and conditions.
Article 5. Partial deliveries
- Wallsupply is permitted to make partial deliveries of any goods bought. This does not apply if a partial delivery does not have any individual value.
- If partial delivery of goods is made, Wallsupply is authorized to invoice each partial delivery separately.
Article 6. Samples, models, or examples
- If Wallsupply shows or provides a model, sample, or example, this will be deemed to have been shown or provided for indicative purposes only: the characteristics of the goods to be delivered may deviate from the sample, model, or example, unless it has expressly been stated that delivery will be made in accordance with the sample, model, or example shown or provided.
Article 7. Changes to goods to be delivered
- Wallsupply is authorized to deliver goods that deviate from the goods described in the sale agreement on the following points in particular: material, colour, structure, and dimensions.
- If Wallsupply takes up this option but delivers goods that are substantially different from the agreed goods, the buyer is authorized to terminate the agreement.
- The buyer is only authorized to do so if they have served written notice of default on Wallsupply and have granted Wallsupply a minimum period of 90 days to fulfil the agreement, and Wallsupply has allowed this term to expire without further action.
- In addition, the buyer is only authorized to do so for a period of three working days after they have discovered or could reasonably have discovered the discrepancy. Wallsupply cannot be held liable for any damage, consequential or otherwise, suffered by the buyer as a result of such non-conformity in delivery, except in the event of an intentional act and/or deliberate recklessness.
- The buyer cannot terminate the agreement due to changes in the goods to be delivered, the packaging, or the associated documentation that have been applied in order to comply with the applicable statutory regulations, or if the changes to such goods are minor.
Article 8. Retention of title
- The goods delivered by Wallsupply will remain the property of Wallsupply until the buyer has fulfilled all obligations under the agreement they have entered into with Wallsupply, including compensation in relation to the goods delivered or to be delivered and/or in relation to the works performed or to be performed, as well as any claims in relation to failure of the buyer to comply with the agreement.
- The goods delivered by Wallsupply may be seized immediately and unconditionally if the buyer is in bankruptcy, subject to suspension of payment, or an application has been filed to that effect.
- The goods delivered by Wallsupply that are subject to retention of title pursuant to clause 1 may only be sold on by the buyer in the course of normal business operations.
- The buyer is not authorized to pledge goods delivered subject to retention of title or encumber them with any other right, whether full or limited. If the buyer acts in breach of this provision, they will owe an immediately payable fine of €250 per day that such breach persists, up to a maximum of €10,000. Notwithstanding the above, the buyer will be liable for any damage suffered by Wallsupply as a result of such breach.
- If the buyer does not fulfil their obligations or there is a valid reason to believe they will not do so, Wallsupply is entitled to remove any goods subject to retention of title or have any such good removed from the buyer or from third parties holding such goods on behalf of the buyer. The buyer is obliged to offer full cooperation to that effect on penalty of a fine of 10% of the amount they owe per day the remain in default of doing so, with each new day counting as one full day. The buyer is liable for any damage suffered by Wallsupply as a consequence of the buyer’s negligent actions.
- If third parties wish to establish or assert any full or limited right to the goods delivered subject to retention of title, the buyer is obliged to notify Wallsupply thereof without delay.
- In relation to the goods delivered subject to retention of title, the buyer is obliged, not merely at the first request by Wallsupply:
- to insure the goods and keep the goods insured against:
- fire, explosion, and flood damage
- to make the relevant insurance policies available for inspection;
- pledge all insurance claims in relation to the goods delivered subject to retention of title to Wallsupply in the manner prescribed in Book 3 Article 239 of the Dutch Civil Code;
- pledge the claims vested in the buyer vis-à-vis its buyers as part of the selling on of the goods delivered by Wallsupply subject to retention of title to Wallsupply in the manner prescribed in Book 3 Article 239 of the Dutch Civil Code;
- mark the goods delivered subject to retention of title as the property of Wallsupply;
- offer cooperation in other ways in all reasonable measures Wallsupply wishes to take to protect its proprietary rights in relation to the goods and that do not unreasonably hinder the buyer in the normal course of their business.
- In the event of:
- a full or partial sale of the buyer’s business,
- an application for bankruptcy, or
- an application for suspension of payment by the buyer
all goods delivered by Wallsupply subject to retention of title are immediately seizable.
Article 9. Defects, complaint period
- The buyer must inspect the goods bought or have such goods inspected upon delivery. As part of this, the buyer must check whether the goods delivered conform to the agreement, more specifically as follows:
- whether the right goods have been delivered,
- whether the goods delivered conform to the agreement in terms of quantity (i.e. in amount and number),
- whether the goods delivered comply with the agreed quality standards or – if no such standards were agreed – with the standards that can be set for normal use and/or commercial purposes.
- Insofar as applicable, the buyer must also inspect the goods in terms of their dimensions, colour, and type. If the buyer accepts any goods without written comments and/or remarks, the buyer will be deemed to have accepted these goods in full and unconditionally.
- If any visible defects or shortcomings are found, the buyer must notify Wallsupply thereof in writing immediately upon delivery, though no later than within three (3) working days following delivery, carefully stating the nature and extent of the defects or shortcomings found.
- Wallsupply must be notified in writing of any invisible defects within three (3) working days of their discovery, though no later than within two (2) weeks of delivery, accurately stating the nature and extent of the defects or shortcomings found.
- The buyer’s obligation to pay for and accept any orders placed will remain even if the buyer complains in good time. Goods may only be returned following prior written permission by Wallsupply. The costs of any return will be payable by the buyer.
- Complaints regarding any goods delivered cannot be considered if the goods have been processed and/or resold after defects have become apparent.
- Wallsupply must be given the opportunity to investigate any complaints. If a complaint is upheld by Wallsupply, it may choose to:
- take the goods back,
- exchange the goods,
- grant a discount on the price, or
- take any other measures.
- The buyer must pay the cost of any investigation as part of complaints not upheld by Wallsupply.
Article 10. Price increase
- If Wallsupply agrees a specific price with the buyer, Wallsupply is nevertheless entitled to increase such price in cases where, following acceptance by Wallsupply of the order, any duties, premiums, taxes, or shipping charges to be borne by Wallsupply are increased or newly introduced, or changes in the exchange rate of prices of materials and parts purchased by Wallsupply give rise to such increase.
- In such cases, Wallsupply may charge the applicable price upon delivery according to the applicable price list at that time.
- If any price is increased by more than 10%, the buyer is entitled to terminate the agreement in writing for the part yet to be performed. The buyer is not entitled to any damage compensation in this case.
Article 11. Payment
- Invoicing will take place at the same time as (final) delivery.
- Unless agreed otherwise in writing, payment must be made no later than within 30 days of the invoice date, via the method specified on the invoice, and in the currency in which the agreed prices are expressed. This payment term is applicable as an absolute deadline in the sense of Book 6 Article 83, sub a of the Dutch Civil Code. The same applies to all other alternative payment terms agreed.
- If, on the due date, payment has not been made, not been made on time or not been made in full, the buyer will be in default, without any notice of default or warning being required, and statutory interest plus 5% per month or part of a month on the overdue amount will become immediately due and payable.
- In the event of:
- a full or partial sale of the buyer’s business,
- an application for bankruptcy, or
- an application for suspension of payment by the buyer
all outstanding obligations of the buyer will become due and payable immediately.
- Payment must be made without any discount or set-off.
- Payments made by the buyer will in the first instance be applied to settle the outstanding interest and costs. Secondly, such payment will be applied to settle the oldest payable invoices. This will apply notwithstanding any notice from the buyer stating payment relates to a different/later invoice.
Article 12. Collection costs
- If the buyer is in default or breach of one of more of their obligations, all reasonable costs for extrajudicial collection will be for the account of the buyer.
- In any case, the buyer will owe the following: 15% of the invoice amount, with a minimum of €250 per invoice.
- If Wallsupply demonstrates that it has incurred higher costs, and such costs were reasonably necessary, these will also be eligible for reimbursement by the buyer.
- The Buyer is liable vis-à-vis Wallsupply for the full costs of legal proceedings actually incurred by Wallsupply. This only applies if Wallsupply and the buyer are involved in legal proceedings in relation to an agreement to which these General Terms and Conditions apply and the buyer is found to be wholly or predominantly in the wrong in a court ruling.
Article 13. Liability
- Barring the provisions of Article 4, clause 3 of these General Terms and Conditions, for damage by or in connection with deliveries for which Wallsupply can be held legally liable, insofar as mandatory statutory provisions do not imply otherwise, Wallsupply's liability is limited to the amount of the payment made by the insurance company, insofar as this liability is covered by its insurance. In all other cases, Wallsupply's liability will not exceed the invoice amount.
- Information on the possible processing and applications of Wallsupply products, technical advice, and other details are always provided to the best of Wallsupply’s knowledge, fully without obligation, and without any acceptance of liability, unless otherwise agreed in writing.
- If Wallsupply has stipulated separate compensation in relation the advice and information provided as referred to in clause 2, its liability, as referred to in the last sentence of clause 2, will be limited to that separate compensation, or at any rate, to no more than the invoice value of the goods recommended and delivered by Wallsupply that have been incorporated in that part of the project to which any error in the advice given relates.
- Some goods delivered by Wallsupply are delivered with a manufacturer’s warranty. Wallsupply refers to any warranty certificates enclosed in this regard. Whether goods are covered by a warranty or not is decided exclusively by Wallsupply’s manufacturer or supplier in such cases. Wallsupply accepts no liability whatsoever in this regard. Wallsupply or its manufacturer or supplier can in no event be held liable for defects that are the consequence of any government regulations in relation to the nature and/or quality of the goods delivered, the materials used, or the construction thereof.
- Wallsupply can never be held liable for damage caused by the incorrect treatment or processing of goods it has delivered. Wallsupply also cannot be held liable for any damage that is the consequence of non-functional properties of the goods and in relation to deviations in terms of dimensions and/or colour and/or structure that fall within the usual tolerances. General problems of the products that are inherent to the product, such as efflorescence and hairline cracking, will also never lead to any liability on the part of Wallsupply.
- Damage, insofar as consisting of lost profits or reduced revenue and all other indirect or consequential damage, such as trading losses or any damages or fines payable by the buyer to third parties, will under no circumstances be eligible for compensation, barring any mandatory statutory provisions to the contrary.
- Barring insofar as Wallsupply is liable to any extent under section 3 of Title 3 of Book 6 of the Dutch Civil Code and insofar as permitted by the law, the buyer will indemnify Wallsupply against claims instated on any grounds whatsoever by third parties who claim to have suffered damage as a consequence of the goods bought or any act or omission by Wallsupply in the context of the performance of the agreement, unless the buyer demonstrates that Wallsupply is liable in relation to the buyer and must compensate the buyer for such damage.
- On penalty of the right to damage compensation lapsing, the buyer will offer Wallsupply their full cooperation as part of the investigation into the cause, nature, and extent of the damage for which compensation is being claimed.
- By derogation from the statutory limitation period, the limitation period for all claims and defences vis-à-vis Wallsupply is twelve (12) months from the day the claim arose.
Article 14. Force majeure
- If Wallsupply fails to fulfil its obligations vis-à-vis the buyer in full or in part, such failure cannot be attributed to Wallsupply if Wallsupply's performance of the agreement is hindered or made impossible by a circumstance beyond the control of Wallsupply, whether or not foreseeable, including the following, without limitation:
- failure/delays on the part of the suppliers/transporters or other third parties on which Wallsupply relies;
- general transport problems;
- a general shortage of the raw and other materials required for the goods or services required to realize the agreed performance;
- war and/or imminent war, civil unrest, or similar situations;
- a pandemic and/or the consequences thereof;
- uprisings, terrorist attacks and/or deeds, criminal acts in general, and wars;
- sabotage, boycott, strike, or occupation, including at other businesses;
- machine damage and other outages in the production process;
- theft (from warehouses);
- industrial disruptions;
- government measures;
- natural and/or nuclear disasters;
- lightning strike;
- Wallsupply still has the right to invoke force majeure if the circumstance preventing the current or future fulfilment of its obligations occurs after Wallsupply should have fulfilled its obligations.
- During any period of force majeure, the delivery and other obligations of Wallsupply will be suspended. If the period during which Wallsupply is unable to fulfil its obligations due to force majeure persists for more than two (2) months, either party is entitled to terminate the agreement, without any obligation to compensate for damage arising in such case.
- If Wallsupply has already partially fulfilled its obligations at the start of any period of force majeure or is only able to fulfil its obligations in part, it is entitled to invoice that part of the order already delivered or still deliverable separately, and the buyer is obliged to pay this invoice as if it related to a separate agreement. The aforementioned does not apply if the part already delivered or still deliverable does not have any individual value.
Article 15. Dispute settlement, choice of forum, and applicable law
- By derogation from the statutory regulations regarding the competence of civil courts, all disputes between the buyer and Wallsupply will be brought before the competent subject-matter court in the district of Limburg.
- However, Wallsupply remains authorized to summon the buyer to the court that is competent according to the law or the applicable international treaty.
- The laws of the Netherlands are exclusively applicable to all agreements between Wallsupply and the buyer. The application of the Vienna Sales Convention is expressly excluded.
Article 16. Severability clause
- If and to the extent that any provision of these General Terms and Conditions cannot be invoked on the grounds of reasonableness and fairness or its unreasonably onerous nature, that provision will be accorded a corresponding meaning as far as possible in terms of its content and scope, so that it can be invoked.
- The invalidity or unenforceability of one of the provisions of these General Terms and Conditions will not affect the validity of the remaining provisions thereof.