GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF THE PRIVATE COMPANY WITH LIMITED LIABILITY DER WIESE B.V. AT RISPENSTRAAT 1, 5095 AM, HOOGE MIERDE, THE NETHERLANDS
1. GENERAL
1.1 The terms and conditions apply to all offers, quotations, accepted orders, assignments, schemes and/or other agreements, as well as to all negotiations entered into by DER WIESE B.V., hereinafter referred to as ‘DER WIESE’, whether or not by proxy, with a third party, hereinafter referred to as ‘buyer’, with the exclusion of other terms and conditions, unless DER WIESE has explicitly declared in writing that such other conditions will apply. The applicability of such other conditions will in that case only relate to the agreement in question. Stipulations varying from these terms and conditions may only be agreed on in writing. Once a buyer has made a purchase subject to these terms and conditions of DER WIESE, the buyer is deemed to have tacitly agreed to the applicability of these terms and conditions in case of a subsequent order placed by the buyer or negotiations entered into by the buyer, regardless of whether such order was confirmed in writing.
2. OFFERS AND AGREEMENTS
2.1 All offers of DER WIESE, with all the particulars and quotations contained therein, made in whatever form, are without any obligation whatsoever and will not be binding on DER WIESE, unless expressly agreed otherwise in writing. Without an order confirmation by DER WIESE and/or without the agreement being signed by DER WIESE, the order and/or assignment from the buyer can never be deemed to have been accepted by DER WIESE. Orders placed by the buyer by telephone or via e-mail will not be effected until these have been confirmed in writing by DER WIESE.
2.2 The agreement between DER WIESE and the buyer will be effected after DER WIESE has accepted the assignment given to it in writing and/or after if it has confirmed this. The order confirmation by DER WIESE is deemed to correctly and completely represent the agreement, unless the buyer explicitly informs DER WIESE otherwise in writing within three days following receipt of the order confirmation. In any event, the agreement is also deemed to have been effected if DER WIESE takes up the performance of the assignment due to the urgency of the assignment. In that case, the invoice to be sent by DER WIESE to the buyer will be considered to be the order confirmation. The buyer will in such case not have the option to object to the order confirmation.
2.3 Commitments, offers and arrangements entered into or made by the buyer with third parties engaged by DER WIESE, explicitly including the staff of DER WIESE, will only be binding on DER WIESE if confirmed in writing by DER WIESE.
2.4 Changes and additions to agreements that have been concluded will only be effective if these have been explicitly agreed on by DER WIESE and the buyer in writing. After the assignment has been accepted, any changes, in writing and in clear terms and/or clearly described by the buyer, will only be implemented by DER WIESE if these have been confirmed in writing by DER WIESE. If DER WIESE, for reasons of its own, decides not to implement the stated changes, the buyer will never be entitled to fully or partially terminate the agreement and the buyer will remain fully liable to pay any costs already incurred by DER WIESE as well as the amount in lost profits on DER WIESE’s part. Changes on the buyer’s part to an assignment already accepted by DER WIESE can result in changes to the originally agreed delivery period. DER WIESE is entitled to charge the buyer for additional work as a result of changed or additional activities performed at the request and/or on the instructions of the buyer or performed because such was strictly necessary in DER WIESE’s opinion.
2.5 DER WIESE will not be liable in any way nor under any obligation whatsoever should the delivered items differ, in whatever respect, from the pictures, drawings, sketches, prototypes and models shown in brochures, printed matter or on the website of DER WIESE, nor will DER WIESE be liable or under any obligation in respect of any colour, size, weight and other specifications and details shown therein or therewith. The printed matter and the brochures and website of DER WIESE, as well as all prototypes, pictures, drawings, sketches, models, etc., are protected by the copyright of DER WIESE. Reproduction or publication is not permitted without the explicit written permission of DER WIESE. On DER WIESE’s demand, all brochures, pictures, drawings, sketches, prototypes, models, etc. must be returned immediately, by registered post, to DER WIESE and all copies that were made for personal use must be destroyed.
2.6 DER WIESE reserves the right to make changes to the articles shown in its catalogues, brochures and other printed matter and on its website, as well as to remove articles shown therein and/or thereon from its collection.
2.7 The buyer gives DER WIESE permission, should the situation arise, to perform the agreement in parts and to invoice to the buyer for each partial delivery. Each partial delivery applies as a separate delivery within the meaning of these terms and conditions.
2.8 Agreements, effected through the intermediary services of representatives or proxies of DER WIESE, will only be binding on DER WIESE after the agreements have been confirmed in writing by DER WIESE or after DER WIESE has proceeded with making deliveries.
2.9 The buyer ensures that all information needed by DER WIESE to, in its opinion, adequately perform the assignment given to it will be in the possession of DER WIESE in due time in the form required by DER WIESE.
2.10 The buyer ensures that the required government permits are available in due time. DER WIESE is entitled to suspend the delivery until the time when the buyer has fulfilled the obligations referred to in this paragraph and the previous one.
3. DELIVERY
3.1 The delivery period stated by DER WIESE will only take effect after DER WIESE has confirmed the order in writing. The stated periods are completely without obligation, even though DER WIESE will do all that is possible to realise delivery within the agreed period. In the unlikely event that a delivery should not take place within the specified term, DER WIESE cannot be held liable with regard thereto. Should the term of delivery agreed on be exceeded, this will not entitle the buyer to (partially) default in the performance of any obligation entered into vis-Ã -vis DER WIESE, which explicitly includes obligations to pay, nor to claim any damages whatsoever, unless in the event of an intentional act or gross negligence on the part of DER WIESE, which explicitly excludes errors on the part of non-executive employees of the latter.
3.2 Postponement of a delivery period at the buyer’s request is only possible with the explicit written consent of DER WIESE, subject to the condition that the buyer pays the amount due to DER WIESE before the date agreed upon in the first instance and subject to the condition that the costs and losses connected to the postponement will remain fully payable by the buyer, in respect of which the cost specification will be binding on the buyer.
3.3 The delivery will take place at the buyer’s business address. All transport costs, as well as the costs of transport insurance, will be payable by DER WIESE, unless explicitly agreed otherwise in writing. From the time of delivery by DER WIESE at the stated business address of the buyer, the buyer will bear the risk of the delivered items. Delivery means delivery to the ground floor of a building, which explicitly excludes any vertical transport, connections and structural work, which exceptions will be and remain at the buyer’s expense and risk. The delivery date is the day on which the delivery has actually taken place and/or the day on which the agreed items were first offered to the buyer for delivery by DER WIESE.
3.4 In the event that the buyer fails to take delivery of the delivered items when these are first offered by DER WIESE, DER WIESE will be entitled to store the items at the buyer’s expense and risk, at DER WIESE’s discretion, and during 3 weeks from the date on which the buyer was informed of the storage the buyer will be given the opportunity to still take delivery of the stored items and to collect these by appointment, provided that the buyer pays for all storage and handling costs in cash, increased by the interest that is due and by a legally due penalty of 15% of the agreed consideration, such without prejudice to the right of DER WIESE to damages and/or to terminate the agreement. DER WIESE is authorised to suspend the surrender of the items until the buyer has fulfilled the obligation to compensate any loss suffered by DER WIESE and has paid the storage costs and the interest and penalties due.
3.5 Both in case of an agreement for the delivery of items and in case of an agreement for the performance of repair and/or service work, the buyer will each time ensure that the mechanics of DER WIESE can immediately start their work upon arrival and can complete it without interruption. The buyer is responsible for making the necessary staff and the necessary and customary auxiliary and other materials available to the mechanics of DER WIESE. If it is not possible for the mechanics of DER WIESE to perform their work on the agreed day, or if the progress of the work of the DER WIESE mechanics is delayed due to circumstances attributable to the buyer, any loss resulting therefrom for DER WIESE must be compensated by the buyer. The buyer ensures that there is a water and electricity supply, as well as a drainage system. The necessary electricity and water are payable by the buyer. The buyer must ensure that the work to be performed by third parties that is not the work of DER WIESE is performed in such a manner and at such a time that the performance of the work by the mechanics of DER WIESE is not delayed by it. Additional costs that should arise because the buyer fails to fulfil its obligations will be payable in full by the buyer. If the buyer fails to fulfil the obligations described in this paragraph, DER WIESE has the right to suspend the performance of the assembly work and to charge the costs resulting from the delay to the buyer or to terminate the agreement without any communication, warning or notice of default being required on the part of DER WIESE, in which case DER WIESE can claim damages, if the agreement has been performed in part, and reimbursement of lost profits.
4. GUARANTEE
4.1 With regard to the hardware items delivered by DER WIESE to the buyer – including but not limited to ice-cream makers, the operating system for the ice-cream makers, printers, freezers and refrigerators – DER WIESE provides the buyer with a two-year guarantee for the constructions as such, including the parts and the materials used for them. A guarantee to be determined in more detail will apply to second-hand products.
4.2 In case of defects to the delivered hardware items that manifest themselves within 2 years following delivery, only as a result of the faultiness of the construction or of the parts or of the materials used for it, DER WIESE will, at its discretion, at its expense replace the parts in question or perform repair work. Should DER WIESE replace a delivered hardware item during the guarantee period, the initial effective date of the guarantee will remain unchanged and such replacement will not result in an extension of the guarantee.
4.3 The guarantee formulated in the previous paragraphs only applies if the hardware items covered by the guarantee have been used in a normal manner, if they have been maintained well, if DER WIESE does not establish any user errors and if the manual and instructions for operation, installation and disinfection of DER WIESE have been strictly followed. If the hardware items have been used in a manner that is unsuitable for such items or for which such items are not intended, or if those hardware items have been repaired or if any part of those hardware items has been replaced by others than DER WIESE, or a service company or repairman designated by DER WIESE, without DER WIESE’s prior written consent, the buyer cannot make a claim under the guarantee. Neither can a claim be made under the guarantee with regard to repair or replacement of items or parts of the hardware items that are worn out or broken, if such is the result of normal use.
4.4 The guarantee referred to in the previous paragraph only applies if and to the extent that DER WIESE has obtained a corresponding guarantee from its suppliers or manufacturers for the hardware items and/or parts and/or materials in question. If requested, DER WIESE will inform the buyer if such guarantee exists, failing which the buyer cannot make a claim under the guarantee referred to in the previous paragraph.
4.5 If the item covered by the guarantee has been repaired or if any part of that item has been replaced and/or repaired by a party other than DER WIESE or a repairman designated by DER WIESE for that purpose, the buyer cannot make a claim under the guarantee referred to in the previous paragraphs. Neither can a claim be made under the guarantee with regard to repair or replacement of items or parts that are worn out or broken, if such is the result of normal use.
4.6 DER WIESE is at liberty to unilaterally change the conditions of the guarantee referred to, but the buyer must be informed of such changes in writing.
4.7 The guarantee period referred to in the first paragraph will take effect at the time of delivery of the items. If the buyer does not pay the amounts invoiced by DER WIESE within the term of payment, the guarantee obligations on the part of DER WIESE will lapse immediately after the term of payment expires and the buyer will no longer be able to make a claim under this guarantee.
4.8 DER WIESE is entitled to have the repair and service work carried out exclusively by a service company/repairman on-site to be designated by DER WIESE. The buyer must, however, on penalty of lapse of all claims under the guarantee, report any disruption and any defect only to DER WIESE itself and it may not directly contact the service company/repairman, unless with the written consent of DER WIESE.
5. SERVICE
5.1 Complaints regarding the quality, numbers, composition, dimensions, weight, type or quantity of the delivered items or defects as well as complaints about work performed by DER WIESE will only be dealt with by DER WIESE if and in so far as such complaints have been lodged with DER WIESE, by registered letter, within eight days of receipt of the delivered items by the buyer, in which letter the time of delivery, the type of product and a further description of the complaint must be stated, and DER WIESE must have been given the opportunity with regard to such complaint to verify its merits. Minor differences or technically unavoidable differences in quality, quantity, width, dimensions, finish, workmanship, measurements, colours and the like, or differences generally accepted in the industry in accordance with commercial practice, cannot constitute any grounds whatsoever for complaints. Guarantees with regard to the quality, composition, uses, characteristics, treatment and other technical qualities of the items and regarding exclusivity will only be effective if these have been confirmed to the buyer in writing by DER WIESE or have been attached to the items by means of labels. Complaints will not be dealt with if the nature and/or composition of the delivered items has been changed after delivery by or in connection with acts or omissions on the part of the buyer and any third parties engaged by the buyer, or in the event that these items are damaged, either wholly or in part, or show a defect resulting from abnormal use or an intentional act, recklessness or failure to observe instructions and/or the manual and/or regulations of DER WIESE or a defect resulting from abnormal working conditions or incompetent use. Should the complaints prove justified, DER WIESE will have the option of replacing the relevant items at its expense and/or carrying out repairs and/or refunding the buyer the relevant amount paid, without DER WIESE being obliged in any further respect.
5.2 DER WIESE is not obliged to handle a complaint as long as the buyer fails to pay any invoice for items delivered. A complaint does not discharge the buyer from the agreed payment obligations.
5.3 Should DER WIESE consider this desirable, the buyer undertakes to provide the former with the opportunity to have the merits of the complaint verified by an expert to be appointed by DER WIESE, failing which every right of complaint will lapse. The decision of the said expert will be binding on both parties. The costs of such expertise will fully be borne by the buyer should the complaint lodged by the buyer prove either wholly or partially unjustified.
5.4 DER WIESE cannot be deemed liable for mistakes made by the buyer in its orders.
5.5 Complaints with regard to sent invoices can only be dealt with if these have been submitted to DER WIESE in writing within 14 days of the invoice date. If this period is not observed, the buyer will be bound by the invoice amount. If complaints turn out to be justified, DER WIESE will be able to adjust the invoice amount. In this case also applies that DER WIESE is not obliged to deal with a complaint as long as the buyer leaves any invoice for items delivered unpaid and the complaint does not discharge the buyer from the agreed payment obligation/obligations.
5.6 The returning by the buyer to DER WIESE of items delivered without prior consultation and without explicit written consent from DER WIESE to that effect is not allowed and will not be handled by DER WIESE. Items thus wrongfully returned to DER WIESE by the buyer will be returned at the expense of the buyer, in which respect the specification by DER WIESE with regard to the costs will be binding on the buyer, subject to proof to the contrary.
5.7 The buyer will be obliged vis-à -vis DER WIESE to count, measure, weigh and check the delivered items for defects immediately after delivery – also with regard to the packaging – before the buyer stores, uses or sells the items.
5.8 Delivered items can only be returned to DER WIESE by the buyer if DER WIESE has consented to such return and the manner of shipment in writing. The items will remain at the buyer’s expense and risk at all times.
6. LIABILITY
6.1 In the event of a manifest attributable failure on the part of DER WIESE or a wrongful act on its part, DER WIESE will only be obliged to pay damages up to an amount not exceeding the sum covered by DER WIESE’s liability insurance, increased by any applicable excess, relating to the loss-causing event. DER WIESE will not be liable to pay any damages if at the time that the event referred to occurs the buyer is in default with respect to fulfilling any obligation towards DER WIESE. The provisions of the preceding sentence will not apply in the event of an intentional act or deliberate recklessness on the part of DER WIESE itself in the performance of the agreement, not including its non-executive employees. DER WIESE will not be liable for any indirect loss, explicitly including trading loss, lost profit, demurrage, consequential loss (also with third parties) and other forms of financial loss, including any claims from third parties, in the broadest sense, including but not limited to end users and consumers, as well as the buyer’s members of staff, nor will DER WIESE be liable for personal injury, damage to movable or immovable property, the loss of added value due to recklessness on DER WIESE’s part, not including its non-executive employees. Liability for loss and/or damage, in the broadest sense, arising and/or resulting from an intentional act or gross negligence or otherwise on the part of non-executive employees and third parties engaged by DER WIESE in the execution of the assignments it was given, is fully excluded. The buyer is furthermore obliged to explicitly indemnify DER WIESE against any claims from third parties, explicitly including but not limited to the buyer’s own members of staff, explicitly including but not limited to end users and consumers, in respect of alleged loss and/or damage, also pursuant to product liability, of whatever nature, in the broadest sense, caused by or in connection with the items delivered, unless the loss and/or damage is due to an intentional act or gross negligence on the part of DER WIESE itself in the performance of the agreement, not including its non-executive employees.
6.2 The indemnification formulated in article 6.1 also entails that the buyer must compensate DER WIESE for all costs of legal and other assistance that DER WIESE needs to incur in order to put up a defence against a claim for damages from such a third party. The buyer undertakes with respect to DER WIESE to also take out insurance in respect of the indemnification referred to in the previous paragraph, and it will explicitly include DER WIESE as the beneficiary. The buyer will provide DER WIESE with a copy of that insurance policy and give DER WIESE irrevocable power of attorney to enquire of the insurer concerned as to whether the buyer has actually paid the periodical insurance premium due.
6.3 The buyer is obliged to carefully follow the safety and other regulations, manual and instructions for operation, installation and disinfection and to work accordingly and to properly instruct its staff.
6.4 DER WIESE will not be liable for the failure by the buyer or third parties to properly observe DER WIESE’s safety and other regulations, manuals and instructions for operation, installation and disinfection or for the use of auxiliary materials.
6.5 DER WIESE is not liable for loss, in the broadest sense, as a result of DER WIESE’s exceeding of a delivery period.
6.6 The buyer is responsible for compliance with local government regulations and for obtaining the necessary permits, all in the broadest sense.
6.7 The buyer indemnifies DER WIESE against any third-party claim with respect to the use of drawings, sketches, calculations, data, documentation, samples, models and suchlike provided by or on behalf of the buyer.
6.8 DER WIESE is not responsible for the data, documentation, drawings, sketches, etc. provided to DER WIESE by the buyer and DER WIESE may assume the correctness thereof in the performance of the assignment provided to it.
6.9 The buyer is fully responsible for all contextual factors, including but not limited to the typical features of the location where the products delivered by DER WIESE are used by the buyer.
7. PRICES
7.1 All prices, unless explicitly agreed otherwise, will be in euros and exclusive of BTW (Dutch VAT). The prices include transport costs, transport insurance, shipping costs, handling costs and standard packaging costs, unless explicitly agreed otherwise in writing. DER WIESE is free in its choice of transporter, the manner of shipment and appropriate packaging. If after the order confirmation has been sent or after the agreement has been effected, but prior to delivery, one or more of the price-determining factors such as purchase prices of items, prices of materials or parts, wage costs, taxes, currency costs, social insurance charges or government charges, packaging costs, insurance premiums and suchlike should increase, DER WIESE will be entitled to adjust the sales prices accordingly. DER WIESE will inform the buyer as soon as possible of the adjustment of the price.
8. FORCE MAJEURE
8.1 Force majeure, however arising, which in any case explicitly includes illness of employees of DER WIESE and of third parties it has engaged, acts of war, ‘technical’ operational breakdown, depreciation of money, fire, wilful damage, floods, strike, lack of raw materials, government measures, blockades, import and export prohibitions, transport problems, material defects, failure on the part of third parties to deliver to DER WIESE the items or raw materials to be supplied on to the buyer, or to do so in good time, energy crises, seizure of stock/equipment, also at third parties, stagnation or limitation respectively or discontinuation of supplies by public utility companies, actions of trade unions, will grant DER WIESE the right, at its discretion, to either exceed the delivery period or to terminate the agreement entered into with the buyer, without DER WIESE being obliged to pay any damages with regard thereto. Should the situation of force majeure last longer than three months, both parties will be entitled to terminate the agreement by means of a statement to that effect, in which case DER WIESE does not owe damages. If at the time of termination pursuant to this article DER WIESE has already performed part of the agreement, the buyer will be obliged to pay the items that have already been delivered, with due observance of the agreed purchase price, increased by any costs already incurred by DER WIESE.
9. TERMINATION
9.1 DER WIESE is entitled – in case of late purchase and/or improper fulfilment of the obligations vested in the buyer, either pursuant to the concluded agreement or otherwise in case the buyer applies for a suspension of payments or if the buyer at its own request or at the request of a third party is declared insolvent or is allowed to participate in a debt management scheme for natural persons or if its movable or immovable property or other goods are seized in any way and if the buyer discontinues its operations or threatens to do so, or if the buyer approaches its creditors within the scope of a debt management scheme/payment scheme, for whatever reason, or if DER WIESE may in all reasonableness assume that any of the above situations will occur in the very short term and informs the buyer about this in writing – to suspend any further delivery of items as well as its payments and to terminate in full or in part any agreement concluded with the buyer and to end negotiations entered into by a mere written notification to the buyer, such without prejudice to the rights to which DER WIESE is entitled such as the right to full damages and/or take back of items without DER WIESE being obliged to pay any damages or to provide a further guarantee. DER WIESE’s claim will be immediately due and payable.
10. INDUSTRIAL AND INTELLECTUAL PROPERTY
10.1 All industrial and intellectual property rights with regard to the items, software, designs, pictures, photographs, working methods, patterns, advice, models, drawings, prototypes, formulas, brands, printed matter, brochures, websites, catalogues, reports, schedules, samples, budgets, etc. provided by or developed, used or delivered by DER WIESE will become and remain the express and exclusive property of DER WIESE, all this without prejudice to the buyer’s share in the realisation thereof or that of third parties engaged by the buyer, including the staff of DER WIESE. Exercising these rights – publication, transfer, reproduction, distribution of information, which includes allowing the use thereof, all this in the broadest sense – will be explicitly and exclusively reserved for DER WIESE both during and after execution of the assignment. On DER WIESE’s demand, the above items, with the exception of the items delivered, must immediately be returned to DER WIESE.
10.2 The buyer undertakes to only and exclusively use the brand registered by DER WIESE for the sale and all appropriate measures in that respect of ice-cream products made with the hardware sold by DER WIESE to the buyer on the basis of the ingredients delivered by DER WIESE to the buyer and the provided formula. The buyer will under no circumstance use that brand as part of the buyer’s name under the articles of association or adjust, limit or change this brand.
10.3 The buyer is not allowed to obtain ingredients and/or products from any party other than DER WIESE or another company designated in writing by DER WIESE and the buyer is not allowed to either directly or indirectly be involved in any way in the production, marketing, sale, distribution or representation of any product that might possibly be competitive with the ice-cream products that are manufactured with the items, ingredients and formulas of DER WIESE.
10.4 The buyer is obliged to treat the information provided by DER WIESE to the buyer confidential and to keep this secret at all times.
10.5 A closed-end licensing agreement applies between DER WIESE and the buyer.
11. PAYMENT
11.1 Unless explicitly agreed otherwise, all periodic payments must have been made by the buyer to DER WIESE at the latest one week before the day of delivery of the agreed items, being the delivery date confirmed by DER WIESE to the buyer in writing. Ample time before the delivery date, the buyer will receive a pro forma invoice from DER WIESE. Seven days at the latest before the items ordered by the buyer from DER WIESE are made ready for transport – as appears from the stated pro forma invoice – the most recent letter of credit from the buyer’s bank must have reached DER WIESE, which irrevocable letter of credit must show that payment of the agreed amount or remaining amount will take place on the day of delivery. Unless explicitly agreed otherwise in writing, this manner of payment will in any event be used by DER WIESE for the delivery of the machines provided with the agreed and/or corresponding packages and for the delivery of raw materials and/or ingredients totalling more than EUR 4,000 excluding BTW and for additional hardware deliveries. Only if explicitly agreed otherwise in writing between DER WIESE and the buyer, payment may be made within 14 days of the invoice date into DER WIESE’s bank account. The transaction costs attached to the payment to be made by the buyer will be fully payable by the buyer. DER WIESE will at all times be entitled, if a term of payment as referred to above has been agreed, to change such payment agreement unilaterally and with immediate effect, without stating reasons. DER WIESE will also at all times be entitled, in respect of all deliveries, to change all previously made payment agreements and to stipulate that the payments be made in cash on the day of delivery or by means of advance payment, in which respect reference is made explicitly to the next paragraph.
Non-refundable payments:
20%, 2 weeks after the order date at the latest
60%, 3 months after the order date at the latest
20%, 1 week prior to getting ready the effective delivery at the latest.
DER WIESE will at all times be entitled, before delivering items, to demand at its option that the buyer either pay the agreed consideration in advance or that the buyer provide security according to generally accepted banking standards, such as an irrevocable bank guarantee for the fulfilment of all that DER WIESE has to claim or will have to claim from the buyer pursuant to the agreement or for whatever other reason. If the buyer does not comply with a request for the provision of security or the obligation to pay in advance or any other obligation vested in the buyer pursuant to the law, an agreement or these general terms and conditions, the buyer will be in default by operation of law without any form of communication, warning or notice of default being required. In that case, DER WIESE may consider all assignments and agreements as having ended and/or having been terminated and the buyer will in such case be liable for all costs and damage or loss on DER WIESE's part connected to the assignment given and the premature termination thereof.
11.2 DER WIESE does not give any discounts or commissions, unless such has explicitly been agreed on with the buyer in writing. The buyer must take care of payment of the amount due by the buyer to DER WIESE without any discount or setoff, by whatever name, unless explicitly agreed otherwise in writing. The buyer will never be entitled to rely on a right to suspension of payment obligations vis-à -vis DER WIESE. In the event that the buyer fails to pay the amount that the buyer owes to DER WIESE within the set period, the buyer will be in default by operation of law without any communication, warning or notice of default on the part of DER WIESE being required. If payment is not made by the buyer within the set period, the buyer will owe DER WIESE contractual interest of 1.5% a month on the outstanding invoice amount, with a minimum of 27,50 EUR, in which respect part of a month is regarded as a full month. Whether the percentage due in excess of the invoice amount will actually be claimed is at DER WIESE’s sole discretion. If DER WIESE has granted the buyer discounts or commissions in writing, these discounts and/or commissions will be cancelled in full if the buyer fails to take delivery of the items offered on delivery or if the buyer fails to pay in a timely fashion the amount due to DER WIESE pursuant to any invoice.
11.3 DER WIESE is entitled to immediately turn over to a third party for collection its claim in respect of an invoice that has remained unpaid. All judicial costs as well as all extrajudicial costs in order to realise collection of the claim incurred by DER WIESE will explicitly be fully at the buyer’s expense, which extrajudicial costs will be set at a minimum of 15% of the amount due, such with a minimum of EUR 500.
11.4 DER WIESE will be entitled to refuse orders from the buyer and to suspend deliveries pursuant to the agreements concluded (as well as the manufacture or the processing of the items destined for this) until the time when the buyer has paid all amounts due to DER WIESE.
11.5 Failure to pay an invoice amount on the due date will result in all claims of DER WIESE against the buyer becoming due and payable immediately, explicitly also including the claims that are not yet due and payable at such time, without any communication, warning or notice of default on the part of DER WIESE being required.
12. RISK TRANSFER AND RETENTION OF TITLE
12.1 Insurance has been taken out for the items to be delivered by DER WIESE to the buyer until the time of delivery on-site at the buyer's address stated on the order. From the time of delivery by DER WIESE, the delivered items will be at the buyer’s sole expense and risk.
12.2 The ownership of the items delivered by DER WIESE will pass to the buyer after it has fulfilled all of its obligations in respect of DER WIESE for the payment of the agreed considerations/purchase price for items delivered and/or to be delivered, as well as regarding payment of claims on account of failure to fulfil the agreements. As long as the buyer retains items in respect of which DER WIESE can exercise retention of title the buyer will be obliged, on DER WIESE’s demand and without judicial intervention being required, to surrender these items to DER WIESE. The buyer is furthermore obliged to keep the items concerned separate and to mark these as originating from DER WIESE. The items that are covered by DER WIESE’s retention of title may never be pledged or otherwise transferred to third parties by way of security, including hire-purchase and/or hire-sale, and neither may these be sold in any way or disposed of or moved to another location than the one agreed on. The costs of exercising the retention of title are at the buyer’s expense and risk. The buyer is obliged to ensure that the items covered by DER WIESE’s retention of title are insured against risks for which insurance is customary (explicitly including fire, theft, water damage and storm damage) or is deemed desirable by DER WIESE.
13. SAMPLES
13.1 The samples and/or prototypes requested by the buyer from DER WIESE will be charged to the buyer by DER WIESE at the time of delivery. DER WIESE will fully credit these samples to the buyer provided that these samples are returned to DER WIESE undamaged within 30 days following delivery to the buyer. If the buyer does not meet the conditions, the buyer will immediately owe the amount charged as well as the transport costs and turnover tax.
14. DISPUTES AND APPLICABLE LAW
14.1 Dutch law applies exclusively to the agreements governed by these conditions and to agreements arising therefrom or connected therewith. This also applies in full to all negotiations conducted, offers, quotations, accepted orders, assignments, arrangements and suchlike.
14.2 All disputes, explicitly including disputes that are considered as such by only one of the parties, that should arise with regard to, in connection with or as a result of the performance or interpretation of the agreements, offers, quotations, accepted orders, assignments, arrangements, negotiations conducted and suchlike governed by these conditions will exclusively be settled by the District Court of Breda, unless the reason for the dispute falls within the subject-matter jurisdiction of the District Court, Subdistrict Sector, and/or if pursuant to mandatory law settlement of the dispute is reserved for the District Court, Subdistrict Sector, in which cases the dispute will be submitted to the competent District Court, Subdistrict Sector.
14.3 These general terms and conditions were drawn up by DER WIESE in several languages. In the event of a difference in interpretation between the versions used in the various languages, the interpretation of the Dutch version will be the only correct one, which Dutch version will also be provided to the buyer.
14.4 If one of the provisions of these general terms and conditions should be in conflict with an agreement concluded between DER WIESE and the buyer and if a conciliatory interpretation is not possible, the explicit written arrangements of the agreement will apply, in spite of the provisions of these general terms and conditions, but only with respect to that one situation.