GENERAL TERMS AND CONDITIONS WE DESIGN BV
As registered in the trade register of the Dutch Chamber of Commerce [Kamer van Koophandel] under number 09073572
ARTICLE 1. | DEFINITIONS
In these General Terms and Conditions, the following terms have the following meaning.
1. WE Design BV: the user of these General Terms and Conditions, having its registered office in Westervoort and its place of business at Arnhem, registered in the trade register of the Chamber of Commerce under number 09073572.
2. Counterparty: the natural person or legal entity who has concluded or intends to conclude an Agreement with WE Design BV.
3. Consumer: the Counterparty who is a natural person and who does not act in the capacity of a professional or a business.
4. Agreement: each agreement concluded between WE Design BV and the Counterparty, by which WE Design BV undertakes to manufacture for and/or supply products to the Counterparty.
5. Products: all goods to be delivered to the Counterparty by or on behalf of WE Design BV in the context of the Agreement, including orthoses, whether or not manufactured to the Counterparty’s specifications.
6. In writing: both traditional written communication and communication by e-mail.
ARTICLE 2. | GENERAL PROVISIONS
1. These General Terms and Conditions apply to every offer made by WE Design BV, every order placed by the Counterparty and every Agreement concluded between WE Design BV and the Counterparty.
2. These General Terms and Conditions also apply to those agreements which require the engagement of third parties to be able to fulfil the agreements.
3. The applicability of any terms and conditions of purchase or other terms of the Counterparty is hereby expressly rejected.
4. Deviations from the provisions of these General Terms and Conditions can only be made in writing.
5. Rescission or nullity of one or more provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions. In particular cases, the Parties shall be required to enter into consultations with a view to concluding alternative arrangements in respect of the affected provision. The purpose and purport of the original provision are taken into account as far as possible.
ARTICLE 3. | OFFER AND CREATION OF THE CONTRACT
1. All offers made by WE Design BV are free of obligations. In the event that an offer is accepted by the Counterparty, WE Design BV reserves the right to revoke the offer within two working days of having received such a confirmation of acceptance. WE Design BV is never obliged to accept an order.
2. Obvious errors or mistakes in the offer made by WE Design BV are not binding on WE Design BV.
3. The Counterparty cannot derive any rights from an offer made by WE Design BV that is based on incorrect or incomplete information provided by the Counterparty.
4. An offer made by We Design BV does not automatically apply to follow-up orders. However, insofar as no changes have been made to these General Terms and Conditions, they will apply to follow-up orders and agreements concluded with the Counterparty after this Agreement has been concluded, without WE Design BV being obliged to provide these General Terms and Conditions over and over again.
5. The Agreement is effected by means of an offer and acceptance thereof. If the acceptance by the Counterparty contains deviations from the offer made by WE Design BV, the Agreement will not be effected in accordance with this deviating acceptance, unless WE Design BV indicates otherwise.
6. A compound quote does not require WE Design BV to carry out part of the offer against the corresponding part of the total price.
7. If the Counterparty concludes the Agreement on behalf of another natural person or legal entity, it declares that it is authorised to do so by concluding the Agreement. In addition to this natural person or legal entity, the Counterparty is jointly and severally liable for the fulfilment of the obligations arising from that agreement.
ARTICLE 4. | TERMS
1. The stated and/or agreed completion times and delivery dates are counted from the moment when WE Design BV has received all the information necessary for the fulfilment of the Agreement from the Counterparty in the manner prescribed.
2. WE Design BV shall make every effort to meet the completion times and delivery dates agreed between the Parties, however, they shall never be firm deadlines. WE Design BV cannot be declared to be in default until after the Counterparty has given WE Design BV written notice of default stating a reasonable period within which WE Design BV may still perform the Agreement and performance has still not taken place after the expiry of the latter period.
ARTICLE 5. | INFORMATION OBLIGATIONS OF THE COUNTERPARTY
If and insofar as this is necessary for a proper drafting and/or fulfilment of the Agreement, the Counterparty shall, whether or not at WE Design BV ‘s request, always be obliged to make all information, including any drawings and photographs, available to WE Design BV as soon as required for performance of the Agreement, in the manner prescribed by WE Design BV, for instance on the basis of measuring forms provided by WE Design BV. If and insofar as WE Design BV provides delivery instructions for the provision of specifications by the Counterparty, the Counterparty shall strictly observe these instructions. Furthermore, the Counterparty must always provide WE Design BV with full cooperation as required for performance of the Agreement. The Counterparty shall take all reasonable measures to optimise the performance the Agreement.
ARTICLE 6. | MARGINS
1. Any agreed properties of Products to be manufactured according to the specifications of the Counterparty may deviate from what is actually delivered on minor points. Minor points include all minor deviations in properties, including colours and shapes of the products, which are not objectionable to the Counterparty and should reasonably be tolerated by the Counterparty. The presence of such deviations does not constitute grounds for the Counterparty to suspend its obligations under the Agreement, to dissolve the Agreement in whole or in part, or to claim damages or any other compensation.
2. Products delivered are deemed to comply with the Agreement if they have been manufactured in accordance with the specifications provided by the Counterparty.
ARTICLE 7. | DELIVERY
1. Unless expressly agreed otherwise, the delivery of the Products takes place by delivery to the delivery address specified by the Counterparty. If the Counterparty has not stated a specific delivery address, the billing address will be considered the delivery address. The Counterparty is obliged to immediately inform WE Design BV in writing of a change of address. Goods delivered to the last address of the Counterparty known to WE Design BV shall be deemed to have been received by the Counterparty.
2. Unless expressly agreed otherwise, WE Design BV determines the method of delivery and packaging of the Products.
3. WE Design BV reserves the right to deliver orders in parts. If the Products are delivered in parts, WE Design BV reserves the right to invoice each part separately. This does not apply if a partial delivery has no independent value.
4. The risk of loss of and damage to Products passes to the Counterparty at the moment the Products are received by or on behalf of the Counterparty.
5. If the agreed completion times and delivery dates are exceeded, the Counterparty shall never be entitled to refuse to accept the Products to be delivered and/or to pay the agreed price.
6. The Counterparty is required to take delivery of the Products at the moment they are made available to the Counterparty or are delivered according to the Agreement. If the Counterparty refuses to take delivery or fails to provide information or instructions necessary for the delivery, the Counterparty is deemed to be in default Counterparty, without prejudice to the obligation of the Counterparty to pay the agreed price.
7. If the Counterparty refuses to take delivery of the ordered Products or is otherwise negligent in taking delivery of the Products, the Counterparty shall, as soon as requested by WE Design BV, indicate within which period delivery of the Products will be accepted. This period shall never be more than one month from the day of the request as referred to in the previous sentence. WE Design BV reserves the right to dissolve the Agreement if, after expiry of the period referred to in the previous sentence, the Counterparty still fails to take delivery of the Products, without prejudice to the obligation of the Counterparty to pay the agreed price and costs for storage of the Products.
8. If, in the event paragraphs 5 to 7 of this article are applied, WE Design BV incurs other reasonable costs which would not exist if the Counterparty had properly fulfilled the obligations referred to therein, these costs shall also be for the account of the Counterparty.
ARTICLE 8. | FORCE MAJEURE
1. Force majeure is understood to mean any circumstances that prevent fulfilment of the obligations and which cannot be attributed to WE Design BV. This (if and insofar as these circumstances make performance impossible or unreasonably difficult) includes: strikes; a general lack of necessary raw materials and other goods or services required to achieve the agreed performance; unforeseeable stagnation at suppliers or other third parties which WE Design BV depends on; the circumstance that WE Design BV does not receive a performance that is important in connection with its own performance, or this performance is not received on time or in a proper manner; government measures, such as import or export restrictions, which prevent WE Design BV from fulfilling its obligations in a timely and/or proper manner; excessive absenteeism due to illness; terrorist attacks; a restriction or cessation of the supply of energy, whether or not by public utility companies; fire; stagnation due to weather conditions; computer failures and general transport problems.
2. During the period of force majeure, the obligations of WE Design BV under the Agreement are suspended.
3. If performance of the Agreement becomes permanently impossible due to force majeure, the parties may dissolve the Agreement with immediate effect.
4. If WE Design BV has already partially fulfilled its obligations when the force majeure situation arose or can only partially fulfil its obligations, it reserves the right to invoice the part already performed, respectively the part of the Agreement that can still be performed as if it were an independent Agreement.
5. Damage as a result of force majeure is never eligible for compensation.
ARTICLE 9. | SUSPENSION AND DISSOLUTION
1. Claims by WE Design BV on the Counterparty are immediately due and payable in, inter alia, the following cases:
- If after the conclusion of the Agreement circumstances come to WE Design BV’s attention that give WE Design BV good reason to fear that the Counterparty will not fulfil its obligations;
- In the event of death, placement under conservatorship, liquidation, bankruptcy or suspension of payment of the Counterparty or if the Debt Restructuring (Natural Persons) Act has been declared applicable to the Counterparty;
- If WE Design BV requested the Counterparty to provide security for its performance and this security is not provided or is insufficient;
- If the Counterparty is otherwise in default and fails to fulfil its obligations under the Agreement.
In the cases referred to above, WE Design BV reserves the right to suspend the (further) performance of the Agreement and/or to dissolve the Agreement in whole or in part, all this under the obligation of the Counterparty to compensate the damage suffered by WE Design BV and without prejudice to the other rights which WE Design BV is entitled to.
2. Furthermore, WE Design BV reserves the right to dissolve the Agreement if circumstances arise that are of such a nature that fulfilment of the Agreement is impossible or unaltered maintenance of the Agreement cannot reasonably be demanded of WE Design BV.
3. The Counterparty cannot claim any compensation in connection with the right of suspension and dissolution exercised by WE Design BV on the grounds of this article.
4. As far as the circumstance can be attributed to the Counterparty, it is obliged to compensate the damage suffered by WE Design BV as a result of the suspension or dissolution of the Agreement.
ARTICLE 10. | INVESTIGATIONS AND COMPLAINTS
1. At the time of delivery of the Products, the Counterparty must immediately investigate whether the nature and quantity of the Products comply with the Agreement. If, in the opinion of the Counterparty, the nature and/or quantity does not comply with the Agreement, it must immediately notify WE Design BV.
2. Visible defects must be reported in writing by the Counterparty to WE Design BV within seven days after delivery.
3. In the case of non-visible defects, the Counterparty must notify WE Design BV in writing within seven days of becoming aware of the existence of the defect, or the moment it should reasonably have become aware of it, and in any event within two years of delivery.
4. The deadlines mentioned in this article apply on pain of forfeiture of any claim by the Counterparty.
5. Complaints never suspend the Counterparty’s payment obligation.
6. The provisions of this Article are without prejudice to the mandatory statutory rights of consumers.
ARTICLE 11. | GUARANTEE
1. Unless explicitly agreed otherwise, WE Design BV guarantees that delivered Products will not show any defects during 2 years after delivery, under normal use and subject to normal wear and tear. For dynamic orthoses, contrary to the period specified in the previous sentence, a guarantee period of 1 year after delivery applies. If a Product delivered shows a design, material or manufacturing fault within two years after delivery - or in case of a delivered dynamic orthosis within 1 year after delivery - that has been reported to WE Design BV in writing within this period, the Counterparty is entitled to have the Product repaired, unless this fault is the result of a design, instruction or request of the Counterparty. WE Design BV may choose to replace the Product in question if repair is objectionable. The Counterparty is only entitled to replacement if repair of the Product in question is not possible. A replaced Product becomes the property of WE Design BV.
2. Without prejudice to the provisions of any guarantee conditions that are expressly stipulated, any guarantee lapses if a defect in the Product has an external cause or is not otherwise attributable to WE Design BV. This includes, but is not limited to: defects resulting from damage, incorrect or improper use, use contrary to the instructions for use or other instructions given by or on behalf of WE Design BV, and repairs or other modifications to the Product that were not carried out with the consent of WE Design BV.
3. If research costs are incurred to identify a defect, on the basis of which no guarantee claim can be made, these costs are for the account of the Counterparty. WE Design BV strives to notify the Counterparty of this in advance. Failure to notify the Counterparty does not affect the Counterparty’s obligation to pay these costs.
4. In order to make a possible guarantee claim, the Counterparty has to submit a complaint to WE Design BV within the period as referred to in Article 10.
5. Any guarantee provided by WE Design BV does not affect any mandatory statutory rights and claims that consumers may have against WE Design BV.
ARTICLE 12. | PRICES AND PAYMENT
1. Unless explicitly stated otherwise, all prices specified by WE Design BV are exclusive of VAT. Unless explicitly stated otherwise, an offer addressed to Consumers states the total price, including VAT and other costs.
2. If after the conclusion of the Agreement, but before the delivery of the Products, a change occurs in VAT rates or other government levies, WE Design BV reserves the right to change its prices accordingly.
3. WE Design BV furthermore reserves the right to pass any increases in cost-determining factors that become apparent after the conclusion of the Agreement on to the Counterparty. Contrary to the previous sentence, the Consumer is entitled to dissolve the Agreement if the costs referred to herein are passed on within three months after the conclusion of the Agreement and WE Design BV still explicitly refuses performance of the Agreement under the originally agreed conditions. Dissolution by the Counterparty must in that case take place within two weeks after the price increase has been communicated to the Counterparty.
4. Without prejudice to the provisions of the previous two paragraphs, WE Design BV at all times reserves the right to change its prices, as long as agreements in this matter that have already taken effect are not affected.
5. Without prejudice to WE Design BV’s right to claim full or partial prepayment of the agreed price, payment must be made by bank transfer, within 4 weeks after the invoice date, in the manner prescribed by WE Design BV. Contrary to the provisions of the previous sentence, the Consumer is required to pay cash on delivery of the Products, unless expressly agreed otherwise.
6. If payment is not made on time, the Counterparty is deemed to be in default by operation of law. From the day on which the Counterparty is in default, the Counterparty owes interest amounting to 1% per month on the outstanding amount, whereby part of a month shall be regarded as a full month. Contrary to the provisions of the previous sentence, instead of the contractual interest referred to therein, the statutory interest rate applies if the Counterparty is a Consumer.
7. All reasonable costs, both judicial, extrajudicial (with a minimum of 10% of the outstanding amount) and enforcement costs, incurred to obtain amounts owed by the Counterparty, are for the account of the Counterparty.
ARTICLE 13. | LIABILITY
1. For defects in delivered Products, only the guarantee as described in Article 11 of these General Terms and Conditions applies.
2. WE Design BV’s liability, insofar as it is covered by its liability insurance, shall, without prejudice to the provisions of paragraph 1 of this Article, be limited to the amount paid out by the insurer.
3. If in particular case WE Design BV’s liability insurer does not pay out or the damage is not covered by the insurance, WE Design BV’s liability is limited to the invoice value of the Products concerned.
4. WE Design BV will never be liable for any damage resulting from the fact that WE Design BV has based itself on incorrect or incomplete information provided by or on behalf of the Counterparty, including the specifications, provided by the Counterparty, with regard to Products manufactured according to these specifications.
5. WE Design BV will not be liable for consequential damage, such as damage in the form of loss of profit and other indirect damage, including (but not limited to) the Counterparty’s liability towards third parties.
6. Any right of claim of the Counterparty against WE Design BV expires after one year after the Counterparty has become aware of this right of claim, unless the Counterparty has started legal proceedings against WE Design BV within this period.
7. WE Design BV at all times reserves the right to repair the damage which WE Design BV is liable for (unless repair is impossible). The Counterparty has to give WE Design BV the opportunity to do so; if this opportunity is not given, any liability of WE Design BV expires.
8. The limitations of liability in these General Terms and Conditions also apply to third parties engaged by WE Design BV in the performance of the Agreement.
9. The Counterparty indemnifies WE Design BV against claims for damages by third parties in connection with Products delivered or services rendered by WE Design BV to the Counterparty, if and insofar as WE Design BV would not have been liable towards this third party under the Agreement and these General Terms and Conditions if this third party had itself been the Counterparty.
10. Limitations of liability included in these General Terms and Conditions do not apply if the damage is due to intent or deliberate recklessness on the part of WE Design BV or it managerial employees.
11. In the case of a Consumer purchase, the limitations in this article do not extend beyond what is permitted under Section 7:24(2) of the Dutch Civil Code.
ARTICLE 14. | RETENTION OF TITLE
1. WE Design BV remains the owner of all Products delivered or to be delivered by it to the Counterparty by virtue of any Agreement, until the Counterparty has fully fulfilled its counter-performances with regard to all these Products. If WE Design BV has performed or should perform services under this Agreement, the Products referred to in the previous sentence remain the property of WE Design BV until the Counterparty has also paid in full the amounts due to WE Design BV concerning the respective counter-performances. The retention of title also applies to amounts due to WE Design BV by the Counterparty on account of non-performance by the Counterparty concerning such Agreement.
2. Except insofar as should be deemed permissible in the context of its normal business operations, the Counterparty is prohibited from selling, pledging or otherwise encumbering the Products the retention of title applies to.
3. If third parties seize (or wish to seize) the Products which the retention of title applies to, or wish to establish or assert any right to the Products, the Counterparty is obliged to inform WE Design BV as soon as possible.
4. The Counterparty grants WE Design BV or any third parties appointed by WE Design BV unconditional permission to enter all those places where the Products the retention of title applies to are located. WE Design BV reserves the right to take back the Products referred to herein in the event of default on the part of the Counterparty. All related reasonable costs are for the account of the Counterparty. The Counterparty is obliged to provide WE Design BV full cooperation in taking back these Products, on penalty of a fine of 10% of the amount it owes per day.
ARTICLE 15. | INTELLECTUAL PROPERTY
1. Unless otherwise agreed, any copyrights, registered or unregistered design rights, (claims to) patent rights and other intellectual property rights on all Products manufactured by WE Design BV, including all Products designed by WE Design BV on behalf of the Counterparty, are vested in WE Design BV. The same applies to sketches and design drawings that precede the design and/or manufacture of the Products and to the manufacturing methods used by We Design BV.
2. If such an intellectual property right may be obtained by means of filing or registration, only We Design BV is authorised to do so and the Counterparty will provide full cooperation if requested to do so. If We Design BV wishes to apply for a patent or design, the Counterparty shall observe secrecy. The Counterparty shall not file or register any rights itself.
3. The Counterparty will respect all intellectual property rights described in the first paragraph as well as all trademark rights, trade names and hallmarks of WE Design BV, and will never remove or change such trademarks, trade names and/or hallmarks from the Products.
4. The Counterparty is prohibited from copying the Products and designs (or having them copied), reproducing them (or having them reproduced), sharing them (or having them shared) with third parties and disclosing them (or having them disclosed) in any other way than ensuing from the Agreement.
5. WE Design BV expressly reserves the right to manufacture and supply all Products for third parties as well. There is no exclusivity of services.
6. Unless otherwise agreed, it is not WE Design BV’s responsibility to investigate the existence of patent rights, copyrights, design rights or slavish copy protection on third-party products, designs or processes.
7. If WE Design BV manufactures Products according to a design supplied by the Counterparty, or according to a design that WE Design BV has completely or partially designed on behalf of the Counterparty, the Counterparty indemnifies WE Design BV on account of infringement of intellectual property rights of third parties.
8. If design sketches, working drawings, prototypes, moulds, 3D or other digital files are created in the context of Products entirely or partially designed on the instructions of the Counterparty, these remain the property of WE Design BV.
9. If the Counterparty acts contrary to one or more of the previous paragraphs of this article, it is obliged to fully compensate all damage WE Design BV suffers as a result.
ARTICLE 16. | FINAL PROVISIONS
1. All agreements concluded and all legal relationships arising from them between the Parties are exclusively governed by Dutch law.
2. The Parties will only initiate legal proceedings after they have made every effort to settle any dispute in mutual consultation.
3. Unless the law requires otherwise, only the competent Court within the district where WE Design BV has its registered office has jurisdiction to hear disputes.
4. The Dutch version of these General Terms and Conditions shall always be decisive for the interpretation thereof.