GENERAL TERMS AND CONDITIONS of PIET-JAN VAN DEN KOMMER WWOO B.V.
In these general terms and conditions,
1.1 WWOO is the private limited company Piet-Jan van den Kommer WWOO B.V., trade register no. 52642291 with its registered office in Stompetoren, as well as its legal successors under general or special title.
1.2 The Client is any natural or legal person on behalf of whom WWOO supplies Products and/or performs Services, hereinafter both collectively and separately referred to as the ‘Products’, or with whom WWOO enters into an Agreement or with whom WWOO is discussing or negotiating the conclusion of an Agreement.
1.3 The Subcontractor is any natural or legal person to whom work has been outsourced commissioned by WWOO.
2.1 These terms and conditions form part of all agreements and apply to all (other) acts and legal acts between WWOO and the client, even if those (legal) acts should not lead to, or are not related to, an agreement. The applicability of any general terms and conditions of the client is expressly rejected by WWOO.
2.2 These general terms and conditions have also been stipulated for the benefit of the director(s) of the said private limited company and the people working for WWOO. All assignments are accepted and performed exclusively by WWOO, except for Section 7:404 of the Dutch Civil Code and Section 7:407 (2) of the Dutch Civil Code.
- Offer, acceptance, and agreement
3.1 An offer or quotation from WWOO is not binding and only serves as an invitation to place an order.
3.2 WWOO is entitled to refuse or not to perform orders without stating reasons. For the proof of the content of the order and the follow-up instructions, the administration of WWOO serves as binding proof for the parties involved.
3.3 An agreement is concluded as soon as WWOO accepts an order from the client in writing by means of an order confirmation or by performance of the order. If WWOO performs any work on request before full agreement has been reached on the price and payment conditions for that performance, the client must pay WWOO for this in accordance with the rates applicable at WWOO at that time. Insofar as the client accepts an offer from WWOO with deviations of minor significance, those deviations do not form part of the agreement and the agreement is concluded in accordance with WWOO’s offer.
3.4 All statements by WWOO have been made with care, but WWOO cannot guarantee that no deviations will occur in this regard. Shown or provided samples, drawings or models are just indications of the products concerned. Termination of the agreement can only take place in the event of serious deviations from the statements of WWOO or from the drawings or models.
3.5 WWOO will exercise due care when engaging third parties and will consult with the client as much as possible in advance when selecting these third parties. Any liability of WWOO for shortcomings of these third parties is excluded. If WWOO engages with third parties who stipulate a limitation of their liability, such a clause will be accepted by WWOO on behalf of the relevant client of WWOO.
4.1 All rates of WWOO are in Euros and exclusive of turnover tax, unless otherwise specified. Any change in the factors that have an influence on the rates of WWOO, including cost prices, exchange rates and levies or taxes, can be passed on to the client. Only if this takes place within three months after acceptance of the order by WWOO and provided the client can invoke the grounds for termination as referred to in Section 6:235 of the Dutch Civil Code, the client is authorized to terminate the agreement.
4.2 If the agreement has been entered into for a fixed amount, WWOO reserves the right to perform more work than stated in the order and to charge the client at the hourly rates customary for WWOO, provided that these activities are necessary for the proper performance of the order. Unless this is not reasonably possible, the client will be informed in advance in writing of the performance of these additional activities, in which case he must notify in writing within five working days that he does not agree with the additional activities and associated costs. It the client fails to do so, WWOO will be authorized to carry out the additional work in full and to charge it to the client.
5.1 Payment by the client must be made to WWOO within 14 days of the invoice date, without discount or deduction. In case of any doubt about the creditworthiness of the client, WWOO is entitled to demand that prepayment is made or a guarantee is provided. If a client fails to do so, WWOO is entitled to suspend or terminate its activities with immediate effect, without prejudice to WWOO’s right to payment of work already performed and compensation for damages. The deposit invoice, fifty percent of the total order value, must be paid to start with the production of the kitchen.
The remainder to be paid based on the invoice, fifty percent of the total order value, must be paid before installation.
5.2 After expiry of the payment term, the client, without further notification of default, owes an interest of 1% per calendar month. After each calendar year, the amount on which the interest is calculated is increased by the interest owed for that year.
5.3 If the client has not paid in full even after the expiry of a further payment term, he must reimburse WWOO for all extrajudicial and judicial costs with a minimum of 15% of the remainder to be paid based on the invoice. If WWOO, for reasons of leniency or otherwise, grants the client postponement to carry out of any performance, the new payment term will always have a fatal character.
5.4 The deposit invoice, fifty percent of the total order value, must be paid to start with the production of the kitchen.
The remainder to be paid based on the invoice, fifty percent of the total order value, must be paid before installation.
- Acceptance of work
6.1 The client guarantees that WWOO can have access to all necessary data in good time for the performance of the agreed work, including but not limited to drawings, calculations, permits and exemptions, as well as unimpeded access to the location where the work is to be performed and the possibility to use all the necessary facilities, including water, electricity, telephone and/or internet connection, all at the expense of the client.
6.2 The client guarantees that the work and/or deliveries to be performed by the client or third parties that are not part of the work to be performed by WWOO have been carried out in such a way that the performance of the work contracted by WWOO is not hindered or delayed.
- Outsourcing of work
7.1 WWOO is free to have the work performed by subcontractors. These subcontractors must comply with the applicable laws and regulations. If they fail to do so, the derived sanctions and/or fines – even if these are imposed directly on WWOO and/or its client(s) – will be entirely at the expense and risk of the subcontractor concerned. The subcontractor must indemnify WWOO and its clients against all damage in this respect in the sense that the subcontractor must pay the relevant fine(s)/damage or compensate WWOO for the damages incurred by WWOO and/or its clients related to the violation of the subcontractor.
- Delivery period
8.1 The delivery period specified by WWOO is based on the circumstances applicable to WWOO at the time of conclusion of the agreement and, insofar as it depends on the performance of third parties, on the data provided to WWOO by those third parties. The delivery period and/or execution period will be taken into account by WWOO as much as possible but are not binding.
8.2 The aforementioned periods commence on the date that the written order confirmation was signed by WWOO. If the client is required to supply data, the periods commence on the day WWOO receives the data, but not before the date the written order confirmation was signed.
8.3 If any period is exceeded, the client is not entitled to (damage) compensation in this regard. In that case, the client is also not entitled to dissolve or terminate the agreement, unless the period has been exceeded to such an extent that the client cannot reasonably be expected to maintain (the relevant part of) the agreement. The client is then entitled, after giving notice of default with reasonable further term for performance, to dissolve or terminate the agreement by registered letter, provided only insofar that this is strictly necessary. In the event that the aforementioned situation arises in which (full or partial) termination is justified, any compensation owed by WWOO – irrespective of whether the client claims termination or fulfillment – is limited to a fixed compensation for damages of 50 Euros per day from the date that WWOO is in default.
- Right of retention
9.1 WWOO is authorized to retain everything that directly or indirectly relates to the assignment, including what has been supplied to WWOO by or on behalf of the client as well as what WWOO has produced as part of the assignment, until the moment when the client has fulfilled all its contractual and legal obligations towards WWOO, increased by any interest and costs.
- Force majeure
10.1 If WWOO is unable to fulfill its obligations towards the client due to a non-attributable shortcoming (“force majeure”), those obligations will be suspended for the duration of the force majeure. If the force majeure has lasted three months, both parties have the right to terminate the agreement in writing in whole or in part.
10.2 Force majeure in respect of WWOO means any circumstance beyond the control of WWOO, as a result of which the fulfillment of (the relevant part of) its obligation towards the client is prevented, delayed or made uneconomical or as a result of which the fulfillment of these obligations cannot reasonably be expected from WWOO. Force majeure shall in any case include any delay or hindrance caused by auxiliary staff selected by or on behalf of WWOO for the performance of its work.
- Risk of storage of data
11.1 Any damage or loss of data of the client stored with WWOO or third parties is at the expense and risk of the client, unless WWOO has demonstrably failed in its obligation to store it carefully. WWOO is allowed to store the entrusted data using automated systems.
11.2 The risk of damage and loss during transport or shipment is always at the expense of the client, regardless of who or on behalf of whom the transport takes place.
11.3 WWOO is indemnified by the client against claims from third parties in this regard.
- Intellectual Property
12.1 The intellectual property rights of the products that WWOO has manufactured for the client belong to WWOO unless expressly agreed otherwise in writing. This also applies to products that build on a design to which the client’s intellectual property rights rest. WWOO declares that, to the best of its knowledge, the products do not infringe any intellectual property rights of third parties in the Netherlands. However, WWOO cannot indemnify the client against possible infringements of intellectual property rights of third parties.
12.2 If WWOO manufactures or gets products manufactured for a specific order from the client based on a design that does not originate from WWOO, the client indemnifies WWOO in respect of all infringements regarding intellectual property rights of third parties.
12.3 The client guarantees not to infringe (nor to allow or enable third parties to do so) the intellectual property rights of WWOO, or its suppliers, regarding the products, for example by duplicating, modifying, or replicating the products.
13.1 Complaints regarding defects in the delivered goods must be communicated to WWOO in writing within 8 days after these defects could reasonably have been discovered, or at least within 14 days after termination of the agreement.
The client has no right to complain if he has not fulfilled his obligations under the agreement towards WWOO.
13.2 If the complaint is timely, correct, and well-founded, WWOO can repair the defect, deliver what has originally been agreed upon or give a discount on the original agreement. By fulfilling one of the above within a reasonable time, WWOO is discharged of its obligations and does not owe any compensation.
- Retention of title
14.1 The products delivered by WWOO remain the property of WWOO until full payment by the client of the claims of WWOO under these or similar agreements as well as the claims against the client due to attributable failure to comply with such obligations under the aforementioned agreements, including claims in respect of fines, interest and costs.
14.2 As long as the delivered products are the property of WWOO, the client is not permitted to change them in any way, to alienate them, to encumber them, or to allow them to be used by a third party in any way.
15.1 WWOO is not liable for direct or indirect damage suffered by the client or third parties, including consequential damage. The client must indemnify WWOO against claims from third parties, for whatever reason. This limitation of liability does not apply if the damage is the result of intent or willful recklessness on the part of WWOO’s management.
15.2 The liability of WWOO, for whatever reason, is in any case limited to the amount that it receives in the relevant case from its business liability insurer or, if no payment can be made on the basis of insurance: to the amount of the invoice value, exclusive of VAT, of the relevant (partial) order to which the alleged liability relates with a maximum of 5,000 Euros.
16.1 WWOO is entitled to terminate the agreement (extra)judicially by means of a written statement – in addition to the cases specified by law – if the client loses the free disposal of his income and assets in whole/or part, regardless of why this occurs – pursuant to a legal measure such as bankruptcy or if the client is in default in the fulfillment of any obligation under the order and the conditions attached thereto. This does not affect the right of WWOO to claim full compensation from the client.
- Non-recruitment clause
17.1 During the term of this agreement and two years after its termination, the client will not employ any employees or auxiliary staff of WWOO, unless there is express written consent of WWOO, or in any other way, directly or indirectly, put them to work.
17.2 In this context, employees/auxiliary staff are understood to mean natural and/or legal persons who have been engaged in the work performed by WWOO or its affiliates during the term of the agreement with the client.
- Applicable law and competent court
18.1 The legal relationship between the parties is subject to Dutch law. Disputes will be settled exclusively by the Dutch court. Insofar as not mandatorily prescribed otherwise by national or international rules of law, the District Court Noord-Holland, location Alkmaar, has exclusive jurisdiction with regard to all disputes between the parties, unless WWOO opts as summoning or requesting party for the court that is relatively competent under the applicable regulatory law.