AGB

GENERAL SALES AND DELIVERY TERMS AND CONDITIONS

of

Wescap B.V.

Article 1 – Definitions
The following definitions apply to these General Terms and Conditions:

Wescap BV: (hereinafter: Wescap), having its registered office at Veldkampweg 19, 7731 HL, Ommen, The Netherlands;
Buyer: a legal entity who, in the practice of its profession or conduct of business, enters into an agreement with Wescap.
Agreement: the agreement entered into by the Buyer and Wescap.
Products: All material products that are produced/made or acquired by Wescap for Buyer.

Article 2 – Applicability
2.1          These General Terms and Conditions apply to every offer, quotation and Agreement between Wescap and the Buyer, unless otherwise agreed in writing.
2.2          The applicability of other general conditions including the conditions of the Buyer is expressly rejected.
2.3         Additions to and/or deviations from these Terms and Conditions are only binding if and to the extent that Wescap has expressly accepted them in writing. Any additions and/or deviations agreed upon will only apply to the Agreement concerned.
2.4          For the purpose of these Terms and Conditions, 'in writing' is also defined as: by written message, e-mail, the Internet, or other electronic media.
2.5          Any specific stipulation included in the quotation and/or the Agreement formed between Wescap and the Buyer will supersede the stipulations of these General Terms and Conditions.
2.6          Insofar as these General Terms and Conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.
2.7          Wescap is entitled to amend and/or supplement these General Terms and Conditions.

Article 3 – Offer
3.1          Unless expressly stated otherwise, all quotations issued by Wescap shall be valid as an offer without any obligation, which may be revoked by Wescap in writing within 7 days from having received a confirmation of acceptance from the Buyer.
3.2          The Buyer guarantees the accuracy, completeness and reliability of details and documents which are made available to Wescap within the scope of an order, even if these details come from third parties.
3.3          Wescap retains the right to refuse orders without giving any reason.
3.4          Wescap is not obliged to keep to an offer and/or an Agreement for a specified price if this price is based on a misprint and/or a writing error.               

Article 4 – Agreement
4.1         An Agreement shall come into effect once Wescap has confirmed the order in writing.
4.2         Any offer made or undertaking given by a representative of Wescap shall only be binding insofar as the latter confirms this in writing.

Article 5 – Delivery
5.1         The delivery time agreed upon is an indication of the estimated delivery time. In no case shall the delivery time be considered as a strict deadline, unless the parties have explicitly agreed otherwise.
5.2          A delivery delay will not give the Buyer the right to terminate the Agreement or give the Buyer any rights to any compensation.
5.3          Deliveries will be made based on the Incoterms 2020® DAP and CPT, unless the parties have agreed otherwise in writing hereto.
5.4          Wescap reserves the right to effect a delivery in parts. Wescap shall be entitled to demand (pre)payment for each partial delivery before proceeding with any other. Each partial delivery will be invoiced separately.
5.5          The Buyer shall be obliged to accept delivery of the Products at the moment at which they are presented for delivery by or on behalf of Wescap. In case of refusal of the delivery, the Buyer shall be obliged to pay Wescap for any costs arising therefrom, including storage costs in any case, if applicable.
5.6          Wescap is entitled to demand full payment of the agreed price before the Products will be delivered to Buyer.

Article 6 – Price 
6.1          The Products will be supplied at the prices mentioned in the quotation or the Agreement.
6.2          All prices mentioned by Wescap in its quotation or the Agreement shall be exclusive of VAT, exclusive of any other charges imposed by government, exclusive of accounting and are based on Incoterms® in force at the moment of conclusion of the Agreement unless otherwise agreed in writing.
6.3          After commencement of the Agreement but before delivery of the agreed Products, Wescap will be entitled to increase the agreed prices if the price increase is caused by changes in one or more of cost price components, e.g. VAT rates, labour costs, procurement prices or legal regulations or environmental contributions. This includes increasing cost prices because of governmental measures.

 

Article 7 – Payment
7.1          Payment shall be made by deposit on the bank account number of Wescap, unless agreed otherwise in writing.
7.2          For Buyers situated in the Benelux: the agreed price must be paid within 30 days from the invoice date.
For Buyers situated in Germany: the agreed price must be paid within 8 days from the invoice date.
For other Buyers: the agreed price must be paid before the Products will be delivered to Buyer (prepayment).
7.3         Payment must be done by the Buyer in EURO, unless Wescap agrees otherwise.
7.4          In the event that the Buyer does not fulfill his obligation to pay in time, the Buyer will owe default interest of 1% per month without the need for any notice of default or judicial intervention, without prejudicing the other rights of Wescap such as the right to compensation for extrajudicial costs and statutory interest.
7.5          The Buyer will in no case be entitled to set off the sums invoiced by Wescap against a counterclaim put forward by the Buyer or postpone payment in case of a counterclaim invoked by the Buyer.  
7.6         In the event the Buyer has any outstanding invoice that is past due, Wescap has the right to stop shipments of Products until the buyer makes the payment.
7.7          The date on which the amount payable is deposited into Wescaps’ account shall be valid as the date of payment.

 

Article 8 – Retention of title
8.1          All Products delivered to the Buyer will remain property of Wescap. Wescap will retain title to the Products, until the Buyer has fulfilled his obligations to pay according to the Agreement.
8.2          Wescap is entitled to take back the Products that are subject to retention of title in the following cases:

• In the event that the other party fails to fulfill its obligations according to the Agreement;
• or in case of a well substantiated suspicion that the other party is not capable of fulfilling its obligations flowing from the Agreement;

The other party will be obliged to cooperate with bringing back the Products.

8.3          In the event that third parties wish to establish or assert a right on the Products under retention of title, the Buyer must notify Wescap hereof. The Buyer must notify the third party that the Products in question were delivered under retention of title.

 

Article 9 – Liability and risk
9.1          In the event that the Buyer has Products in its possession delivered by Wescap to retention of title as referred to in Article 8 of these General Terms and Conditions, the Buyer will be liable for any loss suffered by Wescap as a result of the damage, the loss or the destruction of these Products in the period between delivery of the Products and the time at which the Products were returned.
9.2          Wescap will only to be held liable in case of a product recall if;

(a) it is established that Wescap is liable for the circumstances that have led to the recall and;

(b) it has been established that the other party acted as a reasonable and reasonably competent professional and attempted to limit the costs incurred in connection with the recall as far as possible.

9.3          All liability of Wescap will be limited to the sum paid out under the public liability insurance of Wescap including the own risk under this insurance policy. If for any reason whatsoever no sum is paid out pursuant to this insurance, all liability will be limited to the sum of the invoice corresponding to

the Agreement on which the other party’s claim is based, on the understanding that all liability will be limited to a sum of EUR 20,000.

9.4          Wescap shall not be liable for damage of any nature whatsoever, which is caused because Wescap has used incorrect and/or incomplete information supplied by or on behalf of the Buyer when the order was placed or at a later stage.
9.5          Wescap shall under no circumstances be liable for damage of any nature whatsoever, which is caused by the negligent or injudicious use of the Products by the Buyer or a third party. Injudicious or negligent use shall be understood to mean in any event: the use of the Products supplied in a manner other than that prescribed in the manufacturer's instructions and negligence of storing the Products in the original packaging from Wescap. 

Article 10 – Force majeure
10.1       In case of force majeure Wescap will be entitled to suspend or to partly terminate the Agreement without the obligation to pay compensation to the Buyer or other parties.
10.2       Any failure in the performance of the Agreement for which  Wescap cannot be held accountable because it is beyond its control will be considered as a situation of Force Majeure.
10.3       The following situations should be considered as Force Majeure;
(a)          strikes held by the employees of Wescap or third parties.
(b)          Illness of employees of Wescap or third parties in connection with the performance of the Agreement.
(c)          war and threat of war;
(d)          terrorist attacks;
(e)          riot, revolution;
(f)           natural disasters, including, without limitation, floods, earthquakes, storms, fire;
(g)          non- or late delivery of Products by (part) suppliers or other third parties engaged by Wescap;
(h)          statutory regulations and measures issued by the Dutch government, which interfere with the fulfilment of the Agreement on Wescaps’ part, including bans on imports and exports;
(i)           statutory regulations and government measures issued by foreign governments or by organs of the European Union, which interfere with the fulfilment (within the time-limit) of the Agreement on Wescaps’ part, including import and export bans;

Article 11 – Intellectual  property rights and confidential information 
11.1       All rights of intellectual property on all Products supplier or made available pursuant to the Agreement, including but not limited to, documents, promotion material, drawings, pictures, contracts, all in the broadest sense of the word, shall rest and continue to rest exclusively  with Wescap.
11.2       The Buyer is expressly not permitted to duplicate, disclose any of the Products supplied or made available pursuant to the Agreement, whether or not through the engagement of third parties.
11.3       The Buyer is aware that the Products supplied under the Agreement (may) contain confidential information and trade secrets of Wescap or its part suppliers. The Buyer undertakes to keep this information confidential, to not disclose or give the use of it to third parties other than for the purpose for which it was made available.

 

Article 12 – Acceptance and complaints
12.1       Immediately following the delivery of the Products, the Products must be inspected and verified by the Buyer. The Buyer must verify whether the Products delivered comply with that stipulated in the Agreement, namely:

1. whether the correct Products have been delivered;
2. whether the Products delivered comply with the quality requirements made;
3. whether the Products delivered comply with that agreed on by the parties in terms of quantity (number, amount, weight).

12.2       Any visible defects or visible decreased quality and visible (transport) damage in the Products must be noted by the Buyer, immediately on delivery, on the delivery note and reported to Wescap within 24 hours from delivery, in writing, with a clear and detailed description of the complaint(s), stating the order number, in the absence whereof the Buyer will be considered to have received the agreed quantity of Products without any visible defects or visible (transport) damage. Wescap will be entitled to demand for additional proof for visible defects.
12.3       Return shipments are only possible if the Buyer provides Wescap with a written statement stating the reason of returning the Products including date and invoice number. Wescap must confirm the return shipment.
12.4       In case of a successful return shipment, Buyer is entitled to receive new Products or entitled to receive the sum that was paid according to the invoice.

Article 13 – Suspension and termination
13.1       Wescap will be entitled to suspend or terminate the Agreement with immediate effect without any notice of action or default being required and without being obliged to pay damages or compensation, if:
(a)          the Buyer has applied for or has been granted (temporary) suspension of payment;
(b)          the Buyer has

 

instituted bankruptcy proceedings or a Court has declared that the Buyer is bankrupt;
(c)          the Buyer dies or is placed under legal control;
(d)          the Buyers’ business is liquidated;
(e)          the Buyer fails to comply with his obligations pursuant to an Agreement into which he has entered, or fails to do so properly or on time or if there are grounds to fear that this will occur.

Article 14 – Warranty                                                  

14.1       Wescap guarantees that the Products supplied shall be free from design, material and manufacturing faults for a period of 12 months after delivery.
14.2       Any defects in the delivered product which are covered by the warranty, will either be repaired or replaced by a new delivery if the defects in the opinion of Wescap are due to a defect of construction or defects in or deficiency of the used materials so that the product is not usable for Buyer for the purpose which it was reasonably intended for.
14.3       No warranty applies  if:

• the damage was caused by improper use or improper installation;
• the Product is not used in accordance with its instructions for use;
• the alleged defect is caused by a circumstance primarily located or originating outside the Product;
• the Buyer has continued to use the Product after
• the discovery of the defect;
• the alleged defect is the result of lack of proper maintenance;
• the Product has been opened, repaired or modified by the Buyer or third parties without Buyers’ authorization;

 

Article 15 – Applicable law
15.1       These General Terms and Conditions and all agreements formed between the Buyer and Wescap shall be exclusively subject to Dutch law, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (1980) [CISG].

 

 

Article 16 – Jurisdiction
16.1       All disputes arising from an Agreement between the Buyer and Wescap shall be submitted exclusively to the competent Court in  Zwolle, the Netherlands unless Wescap would elect to submit the dispute to the competent court in the place where the Buyer has its registered offices.
16.2       Disputes between Wescap and Buyers who are established outside   
the European Union will be settled by means of arbitration of the International Chamber of Commerce  under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one arbitrator. The arbitral procedure shall be conducted in the English language.

Date: 01/01/2022