General Terms and Conditions of WRT B.V.
General Terms and Conditions of WRT B.V., having its registered office at (1083 HJ) Amsterdam, The Netherlands, at the address De Boelelaan 28 (Chamber of Commerce and Industry number 34246050) as filed with the Chamber of Commerce and Industry for Amsterdam, the Netherlands, on 25 May 2023.
Article 1: Definitions
In the present General Terms and Conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise. Any definitions in the singular shall include the plural and vice versa.
- Activities: means the activities as described in an Agreement or Offer, which entail the Delivery of Products and/or the provision of Services;
- Affiliate: means a legal entity controlling or controlled by that Party, by direct or indirect ownership;
- Agreement: means any contract, whether or not in written form, including any appendices, relating to the sale and/or purchase and Delivery of Products and/or the provision of Services, as concluded between WRT and the Customer, of which these General Terms and Conditions form an integral part;
- Bank Guarantee: means adequate security to be put up by the Customer in the form of a first class Bank Guarantee to cover Customer’s financial obligations to WRT. Such Bank Guarantee shall be adjusted as and when necessary on WRT’s request to fully cover all outstanding invoices plus 30%;
- Conformity: means that the Product meets the Product specifications (as provided by WRT) at the time and place of Delivery;
- Compound offer: means an Offer that mentions a total price, without specification of each part of the order;
- Customer: means the Party contracting with WRT for the procurement of Products, Services;
- Deliver/Delivery: the moment Products are made available by or on behalf of WRT to the Customer or to a carrier on behalf of Customer as defined in Articles 5.1 and 5.2;Force
- Majeure: has the meaning given to it in Article 17.1;
- General Terms and Conditions: the terms and conditions set out in this document;
- Incoterms: mean the latest version of the standard International Commercial Terms (“Incoterms”) of the International Chamber of Commerce (ICC), which are incorporated in the Agreement by reference. In the event of inconsistency between the Incoterms and these General Terms and Conditions, the General Terms and Conditions prevail. In the event of inconsistency between the Incoterms and any provision of an Agreement, the Agreement shall prevail;
- Lead time: means the amount of time that WRT normally needs to acquire the Product from its suppliers and to Deliver the Product;
- Offer: means an explicit proposal to enter into an Agreement, including tenders, which, if accepted, concludes the Agreement and binds both WRT and the Customer accepting the offer to the terms of the Agreement;
- Party: means either of the parties to the Agreement;
- Parties: means both WRT and the Customer together;
- Products: means the products to be delivered by WRT to the Customer and any related advices, in accordance with the terms, quality and specifications as specified in the Agreement;
- Sanctions: has the meaning given to it in Article 16.1;
- Services: means the services to be provided by WRT to the Customer or to any third parties on behalf of Customer and any related advices, in accordance with the terms, quality and specifications as specified in the Agreement;
- VAT: means any Value Added Tax or similar tax, excluding any statutory late payment interest or penalties;
- WRT: means WRT B.V. and any and all of its Affiliates and subsidiary companies acting, amongst others, as seller and/or provider of Services.
Article 2: General
- The present General Terms and Conditions of WRT B.V. apply to each and every Offer made by WRT to Customer and to each and every Agreement between WRT and Customer, also in the event that the Activities are performed by third parties acting on behalf of WRT, whether or not these third parties are engaged at the Customer’s request.
- Any deviation from these present General Terms and Conditions can only be authorised in writing by the statutory directors of WRT B.V.
- The applicability of any general terms of the Customer will not be accepted by WRT and is hereby expressly rejected.
- If one or more stipulations and/or paragraphs in the present General Terms and Conditions is/are null and void or if voidable stipulations and/or paragraphs are declared null and void or non-binding by an extra-judicial declaration or by a judgment, then the remaining stipulations and/or paragraph s of the present General Terms and Conditions shall remain fully applicable. WRT and the Customer shall enter into negotiations, using their best efforts to agree upon new stipulations and/or paragraphs replacing the null and void or non-binding conditions, whereby the purpose and the meaning of the original conditions shall be heeded as far as possible.
- In the event of any inconsistency between the Agreement and these General Terms and Conditions, the provisions and definitions of the Agreement shall prevail.
Article 3: Offers
- Any Offers made by WRT shall be free of obligation until an Agreement with Customer is concluded. An Offer shall be valid for a period of thirty (30) calendar days, unless indicated otherwise. WRT shall only be bound by the terms of an Offer if the acceptance thereof is confirmed in writing by Customer within the Offer’s period of validity. WRT may, at its own discretion, decide that an Agreement is nonetheless concluded if the acceptance of the Offer is confirmed by Customer after the Offer’s period of validity has expired.
- The prices given in any Offers shall be exclusive of VAT and other government levies, and are exclusive of shipment costs, possible packaging and administration costs and costs for overtime during the week and work in the weekends, unless explicitly stated otherwise.
- lf Customer makes any form of qualified acceptance of WRT’s Offer, thereby altering its original terms, this shall be deemed to represent a counter-offer to WRT, by which WRT shall not be bound. Unless and to the extent that WRT agrees in writing to accept Customer’s counter-offer, WRT’s original Offer shall prevail during its period of validity, following which it will expire.
- A Compound Offer shall not be segmented or fragmented. WRT shall not be obliged to perform only part of a Compound Offer for part of the consideration.
- Offers that are (also) based on third party offers (such as, but explicitly not limited to costs of engineers, third party subcontractors, laboratories, raw materials, semi-finished Products, freight quotations, stowage charges), or that are subject to price fluctuations, shall always be subject to market availability and pricing at the time of performance of the Agreement, even when this does not explicitly appear in the Offer description.
- Offers are time and place specific and shall not automatically apply to repeat orders unless specifically agreed in writing by WRT in each separate case.
- WRT shall be entitled, amongst other things, to pass on price increases to the Customer if costs have increased between the moment the Offer was made and the moment of performance of the Agreement with respect to the costs as described in Article 3.5, exchange rates, salaries and wages, packaging materials and any other costs causing a price increase.
Article 4: Performance of the Activities
- WRT shall fulfil its obligations under the Agreement to the best of its knowledge and ability.
- WRT has the right to have the Activities, or parts thereof, performed by third parties.
- Customer shall see to it that WRT is provided in due time with all information that WRT has stated to be necessary, or which Customer must in all reasonableness understand to be necessary, for the efficient fulfilment of WRT’s obligations under the Agreement. If WRT has not duly received the information necessary for the efficient fulfilment of its obligations under the Agreement, WRT shall have the right to suspend its further performance of the Agreement and/or to charge Customer for the additional costs resulting from the delay at the generally accepted rates. The obligation to Deliver or perform Services shall never commence before such information has been made available to WRT by the Customer, also in case of an agreed Delivery period.
- If it has been agreed that the Agreement shall be performed in instalments, WRT may require Customer to provide a written acceptance of satisfactory Delivery per instalment. WRT shall be entitled to suspend, without penalty, any further instalment Deliveries until it has received a written acceptance of prior Deliveries.
- If WRT or third parties engaged by WRT perform work within the scope of the Agreement at Customer’s site, or at a (third party) site designated by Customer, Customer shall ensure that such parties and their staff are provided with all necessary site access, site authorisations, insurance cover, work permits and appropriate site training and supervision – in particular, but not only – with respect to site health, safety and environmental management systems and practices.
Article 5: Delivery of Products & transfer of risk and ownership
- Products sold to Customer shall be Delivered ex works/store/warehouse of WRT (as per latest version of the Incoterms) unless Parties have agreed otherwise in writing.
- If the Product is also injected by or on behalf of WRT, the Product is Delivered, as applicable, either when 1) the Product passes the flange connection between the discharge manifold of the means of transport and the receiving hose of the vessel/barge; or 2) when the Additive passes the inlet flange of the storage tank designated by the Company at the discharge terminal unless Parties have agreed otherwise in writing.
- Customer shall be held to take delivery of the Product at the moment that WRT Delivers the Product or has it Delivered to Customer. WRT shall be deemed to have Delivered the Product once it has been made available to Customer or to a carrier on behalf of Customer.
- lf Customer refuses to take delivery or fails to give the information or instructions necessary to enable the Delivery or provision of Services, WRT shall be entitled to store the Product at Customer’s risk and expense.
- Further to Article 5.4 above, WRT shall be entitled to charge Customer the full amount of any additional costs incurred and additional work performed in connection with the Delivery and storage of Products and Services.
- Recognising the importance of timely Delivery of Products and Services to Customer, WRT shall use its best efforts to Deliver the Product and Services within the proposed time period. However, WRT does not warrant any Delivery timelines, nor can such warrant be implied from the Agreement or otherwise. Under no circumstances shall late Delivery of Products or provision of Services constitute grounds for claims for breach of contract. Notice of any actual or perceived late Delivery should be made by Customer to WRT in writing, in any case within eight (8) working days after receipt of the invoice.
- In addition to Article 4.4, when WRT delivers Products in instalments, WRT shall be entitled to invoice the Delivery of each instalment separately. For the sake of clarity, in that case Article 4.4 of these General Terms and Conditions applies in full and remains unchanged.
Article 6: Inspection, complaints & notifications
- Customer shall inspect the Product or have it inspected, sampled and/or tested at the moment of Delivery in order to check whether the specifications, quality and the quantity of the delivered Product comply with the Product specifications provided by WRT. The Products are considered in Conformity with the Agreement if they meet these Product specifications at the moment of Delivery. If no such inspection is carried out upon Delivery, the Product shall be deemed to have been Delivered in Conformity with the Agreement.
- Customer shall ensure that any disputed Product (as established upon Delivery in accordance with Article 6.1) will immediately be segregated for further inspection at the place of Delivery to enable WRT to resolve the matter on a best effort basis without incurring unreasonable costs.
- In any case, Customer shall not be entitled to make any claim against WRT relating to a lack of Conformity. With reference to Article 12.3 and under the conditions set out in this Article 6, in case of non-Conformity of the Product, WRT’s remedy to Customer shall be limited to a right to receive at the Delivery location timely replacement of Products that conform to the agreed Product specifications and are fit for purpose. This can also mean that WRT sends an engineer to bring the Product on-spec at the Delivery location on a best effort basis, which will be at WRT’s discretion. WRT is explicitly not liable for any costs or liabilities resulting from the Product remaining at the Delivery location any resulting delays.
- To be entitled to the right set out in Article 6.3, the Customer must notify WRT of the non-Conformity in writing and in detail with accompanying photographs within three (3) days following Delivery of this Product. In any case WRT must be notified of any non-Conformity while WRT can still resolve the non-Conformity at the Delivery location as set out in Article 6.3. Notifications received after this notification period has ended will have no effect. If the Customer fails to respect this notification period, the Product shall be deemed to have been Delivered in Conformity with the Agreement.
- Customer undertakes to record all samples taken and, if not forwarded in accordance with WRT’s instructions, to store them (or have them stored) in appropriate places to be designated by WRT. Failure by Customer to respect these sampling instructions will result in the loss of the Customer’s right under Article 6.3.
- Customer’s complaint shall not affect Customer’s obligation to effect payment for the Products purchased and Services provided.
Article 7: Changes to the Agreement and/or Activities
- If Parties mutually agree that the Activities and/or Agreement need(s) to be changed and/or expanded, WRT shall inform Customer as soon as reasonably possible of any estimated impact that such change and/or expansion may have on future Delivery dates.
- Should such agreed change to and/or expansion of the Activities and/or Agreement have any financial and/or qualitative consequences, WRT shall inform Customer thereof as soon as practicable and before the change to and/or expansion of the Activities is effected.
- If a fixed rate has been agreed upon, WRT shall indicate the degree to which such change to and/or expansion of the Activities and/or Agreement will result in an increase or decrease of said fixed rate.
Article 8: Payment and interest
- Unless otherwise agreed by the Parties, payment must be made within fourteen (14) days from the date of issuance of WRT’s invoice, in strict adherence to the payment instructions described in the invoice.
- The Customer may dispute an invoice or part of an invoice in writing within two months after the date of issuance of WRT’s invoice, in which case the Customer bears the burden of proving that there is a well-founded reason why (part of) the invoice is disputed.
- Payment of invoices shall be free of any set-off, counterclaim or deduction by Customer. Under no circumstances shall any counter-claim or dispute release Customer from its payment obligations.
- From the moment the Customer fails to comply with the payment terms as stated on the invoice, the Customer shall be legally in default. In that case, Customer shall owe interest at a rate of 1% per month unless the statutory interest rate of Article 6:119a Dutch Civil Code is higher, in which case the statutory interest rate of Article 6:119a Dutch Civil Code shall apply. The interest on the amount due and payable shall be calculated as from the day Customer is in default until the moment Customer has paid the amount in full.
- In case of overdue payment, all of the Customer’s payment obligations shall become immediately due and payable.
- The moment that Customer applies for a suspension of payment, or is declared bankrupt or dissolved, or if the Customer’s assets are legally seized, WRT’s claims against Customer shall become immediately due and payable.
- WRT shall have the sole discretion to apply any payments made by or on behalf of Customer to settle all costs incurred by WRT first, secondly to settle all interest due, and finally to settle any outstanding principal sums. WRT shall have the right – without this leading WRT to be in default – to refuse an offer for payment if Customer designates a different sequence of attribution. WRT shall be entitled to refuse payment in full discharge of the principal sum if such payment does not include all outstanding interest due and a full reimbursement of WRT’s costs.
- Customer shall, upon WRT’s first demand, provide adequate security in the form of a Bank Guarantee to cover Customer’s financial obligations towards WRT. Such Bank Guarantee shall be adjusted as and when necessary on WRT’s first request to fully cover all outstanding invoices plus 30%. To the extent that Customer does not (fully) comply with this Article 8.8, any costs borne by WRT to enforce this provision, will also be paid by Customer, and WRT shall have the right to suspend the performance of its obligations under the Agreement at the Customer’s risk until such Bank Guarantee is provided or adjusted. If Customer does not fulfil its financial obligations towards WRT, WRT shall have the right to draw under the Bank Guarantee.
- Without prejudice to any other rights due to non-payment of any sums outstanding on the due date, WRT shall have the right to suspend the performance of its obligations under the Agreement at the Customer’s risk in case of non-payment.
Article 9: (Extra-)judicial costs
- If, in case of overdue payment, WRT needs to take action to collect the principal amount due, the amount of WRT’s claim against Customer shall be increased with all extra-judicial costs, in addition to all interest and penalties already due and without prejudice to any judicial penalties that may be awarded in favour of WRT at a later date.
- In deviation of Article 6:96 paragraph 4 of the Dutch Civil Code, the amount of extra-judicial costs shall be set at a minimum of 10% of the principal amount due, in any case at a minimum of EUR 250,-, unless the actual extra-judicial costs are higher, in which case the higher amount is due.
Article 10: Retention of title (“Eigendomsvoorbehoud”) and non-possessory pledge
- WRT retains legal and beneficial title to the Product until payment in full of all monies owing from the Customer to WRT (whether or not in relation to the same invoice/Agreement) are received through WRT’s bank account. If, within the framework of the Agreement(s), WRT has carried out Activities in favour of Customer to be compensated by Customer, the retention of title stipulated in this Article shall apply until such time that Customer has fully discharged its obligations to settle all invoices, claims, outstanding interest and collection costs incurred by WRT.
- If WRT is unable to rely on its retention of title because the Product has been processed or mixed with one or more other products by or on the instruction of the Customer, Customer shall, upon WRT‘s first request, instantly cooperate in the establishment of a non-possessory pledge (“bezitloos pandrecht”) on the newly-created products.
- In respect of claims against Customer other than those mentioned above under Article 10.1, Customer shall, upon WRT‘s first request, instantly cooperate in the establishment of a non-possessory pledge (“bezitloos pandrecht”) on all Products WRT has delivered to Customer.
- If WRT has one or more claims against Customer other than those claims mentioned in Article 10.1, any payment received from Customer shall first be applied to settle those other claims.
- Customer is obliged to mark Delivered Products as “property of/pledged to WRT” while they are under retention of title or non-possessory pledge.
- Customer shall not be authorised to pledge or in any way encumber the Products falling under the retention of title to a party other than WRT or a third party designated by WRT.
- In case third parties seize Products delivered to Customer by WRT that are subject to WRT’s retention of title or possessory pledge, or wish to establish or assert proprietary rights to these Products, Customer shall inform WRT thereof as soon as can reasonably be expected.
- WRT may, at its own discretion and at any time, agree that the Customer puts up a Bank Guarantee in accordance with Article 8.8 instead of a non-possessory pledge.
- If the Customer fails to meet its obligations under the Agreement or if WRT has good reason to fear that Customer will fail to meet its obligations, WRT is entitled, without prejudice to its other rights, to take back the Products that WRT delivered under retention of title. Customer shall grant WRT, or third parties appointed by WRT, unconditional and irrevocable permission to access all sites and locations where WRT’s property might be found and to take its Products back.
- If the country of destination of the Products provides more far-reaching forms of retention of title with regard to the Products delivered than this Article 10, Parties herewith agree that these forms shall also apply for WRT’s benefit, on the understanding that when it is not possible to determine which far-reaching rules are concerned, the existing provisions shall remain in force.
Article 11: Samples & models
Shown or supplied samples or models are only indications of the Products, may vary and do not bind WRT, unless Parties explicitly agree that the Product to be Delivered shall have identical quality and specifications.
Article 12: Product warranty
- WRT warrants that the Products Delivered are in Conformity. The warranty shall only apply to Products that have not become irreversibly mixed or fused with other products.
- WRT explicitly does not give any warranty on results of any treatment (including but not limited to injection, doping, mixing and/or fusion) of goods or products belonging to the Customer or a third Party by or with Products (whether or not delivered by WRT), regardless of whether such treatment was carried out by WRT or pursuant to WRT’s instructions and/or advice.
- If the Delivered Products are not in Conformity, WRT’s remedy to Customer shall be limited to a right to receive timely replacement of Products that conform to the agreed specifications and are fit for purpose under the condition set out in Article 6.
- In any case the warranty mentioned under Article 12.1. shall not apply if:
- Customer has not timely provided WRT with all information required and requested by WRT to be able to Deliver conforming Products;
- Customer has already moved the Product away from the place of Delivery;
- the information provided by Customer was unclear, incorrect or incomplete;
- Customer determined the composition of the Products as such;
- the defect originated as a result of government regulations regarding the nature, quality and/or composition of the Products;
- the defect occurred as a result of injudicious or improper use, or because Customer or third parties made changes – or tried to make changes – to the Product without WRT’s written consent, or because Customer or third parties used the Product for purposes for which they were not intended. Products sold by WRT are intended to be used exclusively by Customer on the terms as indicated by WRT;
Article 13: Suspension & dissolution
- WRT shall have the right to fully or partially suspend its performance of the Agreement and/or to dissolve the Agreement (have the Agreement dissolved) without the intervention of a Court, without notice of default and without incurring any liability whatsoever, without prejudice to any rights and liabilities WRT has accrued up to the date of dissolution or termination, if:
- Customer does not (fully) fulfil its obligations as set out in the Agreement;
- after the Agreement has been concluded, WRT learns of circumstances giving good ground to fear that Customer will not (fully) fulfil its obligations;
- WRT finds itself in a situation as a result of which performance of its obligations cannot reasonably be required from it;
- Customer files a request for the suspension of payments, if such suspension of payments is granted, if a petition for bankruptcy of Customer is submitted or if Customer is declared bankrupt;
- an actual or prospective change in the organization, control or management of the Customer has taken place or is expected to take place;
Customer does not timely provide a Bank Guarantee as per Article 8.8, or does not timely establish a pledge as per Articles 10.2 and 10.3.
- WRT shall furthermore have the right to dissolve the Agreement (have the Agreement dissolved) prematurely, without intervention of a Court, if:
- Customer is late on a payment or is, in some other way, imputably in default with regard to the fulfilment of its obligations, including obligations under previous Agreements;
- circumstances arise that are of such a nature that fulfilment of the obligations becomes impossible or can no longer be required in accordance with the standards of reasonableness and fairness.
- In the event that WRT dissolves the Agreement, the dissolution will have immediate effect.
- If the Agreement is dissolved, WRT shall immediately be entitled to reclaim any Products in the Customer’s possession or control, which were supplied by or on behalf of WRT, and dispose of them for WRT’s own benefit as it deems fit.
- If the Agreement is dissolved, WRT’s outstanding claims against Customer shall become immediately due and payable. If WRT suspends fulfilment of its obligations, this shall be without prejudice to WRT’s rights under the law, these General Terms and Conditions and the Agreement.
Article 14: Return of goods and resources put at the Customer’s disposal
- If WRT has put goods or other resources at Customer’s disposal during and in connection with the performance of the Agreement, Customer shall be held to return the delivered goods and resources within fourteen (14) days after termination of the Agreement, in their original state, free from defects and in their entirety. If Customer fails to fulfil this obligation, all resulting costs shall be owed to WRT by the Customer.
- If, for any reason whatsoever, Customer remains in default to fulfil the obligation mentioned under Article 14.1, even after having received a written notice thereto, WRT shall further be entitled to recover the resulting damage and costs, including replacement costs, from Customer.
Article 15: Liability & indemnity
Notwithstanding any other provisions of these General Terms and Conditions, it is the express intent of both WRT and Customer that the following liability and indemnity provisions apply:
- Under all circumstances, WRT’s liability to Customer and/or to any of Customer’s employees, agents, contractors, subcontractors and service providers, for direct loss or damage shall be limited to the amount stated on the invoice for the Activities in question, and shall always, in any case, be limited to a maximum amount of €20,000.00 (in words: Euro twenty thousand) per incident or series of incidents with the same cause or the amount of insurance coverage paid out by WRT’s insurers, whichever amount is the lowest.
- WRT shall never be liable to Customer, nor to any of Customer’s employees, agents, contractors, subcontractors and service providers, for any indirect loss or damage of whatsoever nature, including but not limited to consequential damage, delays in deliveries to third parties, demurrage, loss of profit, lost savings, loss and damage due to business interruption.
- WRT shall never be liable for risks that the Customer could have insured.
- The limitation of liability and exclusion of liability set out under Article 15.1, 15.2 and 15.3 above shall always apply, except in the event that Customer proves that the loss or damage resulted from (a) intentional misconduct (“opzet”) on the part of WRT (“het bedrijf”) and/or its management (“bedrijfsleiding”) or (b) deliberate recklessness (“bewuste roekeloosheid”) on the part of WRT (“het bedrijf”) and/or its management (“bedrijfsleiding”).
- Customer shall defend, indemnify and hold harmless WRT from any and all third party claims injuries, damages, losses or causes of action, including reasonable attorneys’ fees, arising out of or in connection with WRT’s performance of the Agreement or Activities and/or in connection with delivered Products and/or Services (including but not limited to treatment of goods or products with Products) by or on behalf of WRT.
Article 16: Sanctions, exposure and indemnity
- Customer warrants that neither the transportation of the Products as arranged by or for Customer nor the delivery of Products by or on behalf of Customer to third parties nor the performance of Services for Customer or third parties on behalf of Customer will expose WRT to any sanction, prohibition or penalty (or any risk thereof) whatsoever, imposed by any state, country, international governmental organization or other relevant authority (collectively: “Sanctions”) for any reason whatsoever, including but not limited to Sanctions imposed with regard to constituents of the Products, any insurance of the Products taken out by the Customer or any other person with an interest in the Products, the destination of the Products, the intended consignee, purchaser or end user of the Products.
- Customer shall release, defend, indemnify and hold harmless WRT from and against all loss, damage, fines and expenses, including but not limited to WRT’s exposure to any and all Sanctions arising or resulting from any non-declaration or illegal, inaccurate and/or inadequate declaration in respect of the Activities by or on behalf of the Customer or due to any other cause in connection with the Products for which the Customer is responsible.
- If it appears, in WRT’s reasonable judgment, that the transportation of the Products as arranged by or on behalf of Customer or the Delivery of the Products or performance of Services by or on behalf of Customer to any third party could expose WRT or its employees, servants, agents, contractors, subcontractors and/or service providers and/or any other third parties engaged by WRT to any Sanctions or any risk of Sanctions, WRT may refuse to carry out any or all of the Activities, without incurring any liability whatsoever.
Article 17: Force Majeure
- WRT shall not be liable – for damages or otherwise – for any delay in performance or failure to perform its obligations, where such failure or delay is caused by force majeure, being a circumstance reasonably beyond the control of the party, which cannot be attributed to them by virtue of law, a Iegal action or generally accepted practice. In addition to and notwithstanding the provisions of the law and case law in this respect, force majeure on WRT’s part shall in the present General Terms and Conditions furthermore be understood to mean any external circumstance, regardless of whether this is or was foreseeable at the time the Agreement was concluded, on which WRT cannot exert any influence, but that prevents WRT from fulfilling its obligations, including, but not limited to:
- strikes or lockouts,
- a general lack of or malfunction of raw materials, utilities and other resources or Services,
- unexpected Lead time delays or disruptions at suppliers or other third parties on whom WRT depends or general transport problems,
- laws, rules and regulations, unforeseen government measures – in any case including import and export obstructions and measures or obstructions pertaining to a pandemic,
- extreme weather conditions or natural disasters, nuclear or natural catastrophes or acts of God,
- war, threat of war or terrorism, civil or military disturbances,
(hereinafter :”Force Majeure”).
- WRT shall also be entitled to invoke Force majeure if the circumstance resulting in the inability to (further) fulfil its obligations commences or arises after the point in time on which WRT should have fulfilled its obligations.
- Throughout the duration of the circumstances of Force Majeure, both Parties shall be entitled to suspend the performance of their obligations. If this period lasts in excess of two (2) months, either of the Parties shall be entitled to fully or partially terminate or dissolve the Agreement without any obligation to pay any form of loss or damages to the other Party.
- In the event of Force Majeure, WRT shall allocate its available Products and Services among any or all of its existing customers in a fair and equitable manner, which allocation is at WRT’s sole discretion.
- Insofar as WRT already partially fulfilled its obligations under the Agreement at the moment the circumstance of Force Majeure commenced or arose, WRT shall be entitled to invoice the Customer for the Products delivered and/or Services provided, including any advices rendered thus far. Customer shall be held to pay this invoice as if it were a separate Agreement.
- In case of unforeseen circumstances that are of such nature that, according to standards of reasonableness and fairness, Customer cannot expect the Agreement to be maintained unchanged, WRT shall have the right to alter the prices and Activities and/or to fully or partially terminate or dissolve the Agreement with Customer without judicial intervention and without being obliged to pay compensation for any loss or damage of whatsoever nature.
Article 18: Intellectual property & copyrights
- Without prejudice to the other stipulations of the present General Terms and Conditions, WRT shall reserve the rights, remedies and privileges to which WRT is entitled under the Netherlands Copyright Act (“Auteurswet”).
- Customer shall not be allowed to introduce changes to the Products and/or material and/or resources provided, unless the nature of the delivered Products and/or material and/or resources dictate otherwise or if otherwise agreed in writing.
- Any and all documents, such as designs, sketches, drawings, films, software, manuals, Product specifications, quotations, pricing lists and other material (or electronic) files produced by WRT within the framework of the Agreement shall remain WRT’s property, irrespective whether they have been handed over to Customer or to third parties, unless otherwise agreed upon in writing.
- Any and all documents, such as designs, sketches, drawings, films, software, manuals, Product specifications, quotations, pricing lists and other material (or electronic) files, provided by WRT to Customer are to be used by Customer exclusively and may not be reproduced, made public or brought to the notice of third parties by Customer without WRT’s explicit prior written consent, unless the nature of the documents provided dictates otherwise.
- WRT shall reserve the right to use the knowledge gained through the performance of the Agreement for other purposes, to the extent that no confidential information shall be brought to the notice of third parties when doing so.
- Customer shall defend, indemnify and hold harmless WRT against any and all claims filed by third parties concerning alleged or actual breach of intellectual property rights on material or data provided by Customer to be used for and during the performance of the Agreement.
- If Customer provides WRT with information carriers, electronic files or software etc., the former warrants that said information carriers, electronic files or software are free of viruses and defects.
Article 19: Confidentiality
- Each Party shall treat professional information and experience gained from the other Party as strictly confidential. Parties shall use their best efforts to ensure that data of the other Party will not be accessible to third parties. Upon the termination of the Agreement, each Party shall return all documentation received from the other as soon as reasonably possible. Each Party shall impose an obligation to maintain confidentiality upon its employees and upon any other third parties engaged in the performance of the obligations under the Agreement.
- Article 19.1 shall not apply to information:
- acquired from a third party with the right to divulge the same;
- required to be disclosed by judicial or administrative process or by other requirements of law or any binding judgement or order;
- reasonably required to be disclosed in confidence to the professional advisers of either Party for use in connection with the transactions and matters contemplated by the Agreement or related thereto;
- which is or becomes of public knowledge (otherwise than through default of the disclosing Party concerned).
- If a statutory provision or a judicial decision compels WRT to convey confidential information to third parties designated by law or by the Court and WRT cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent Court, WRT shall not be held to pay damages and the opposite Party shall not be entitled to demand the dissolution of the Agreement on the ground of any damage resulting from said circumstance.
Article 20: Non-employment of the opposite Party’s staff
Throughout the duration of the Agreement and for one year following termination thereof, Customer shall not in any way hire or employ, be it directly or indirectly, staff of WRT’s or of enterprises whom WRT has engaged to perform the present Agreement and who are (were) involved in the performance of this Agreement, without prior proper business-like consultation on this matter, all this in accordance with the standards of reasonableness and fairness.
Article 21: Prescription
- Any claims of Customer by virtue of the Agreement which are related to and/or result from this Agreement will lapse and shall become void by prescription by the mere lapse of twelve (12) months unless the Customer brought this claim, in accordance with Article 23, before the competent Court within these twelve (12) months.
- The prescription period of twelve (12) months will commence on the day after the day on which the Product and/or Services and/or advice were delivered/rendered, should have been delivered/rendered or, in the absence thereof, on the day after the day on which the claim became due and payable.
Article 22: Third Party-clause
The provisions contained herein regarding exclusion and limitation of liability as well as regarding WRT’s indemnity and termination/prescription of the right of action shall also apply to and on behalf of WRT’s employees and to and on behalf of any third parties engaged by WRT, including but not limited to agents, contractors, subcontractors and or service providers and their respective employees.
Article 23: Disputes
- Any and all disputes between WRT and Customer will be settled exclusively by the competent Court in Amsterdam, the Netherlands, to the exclusion of any other Court. However, WRT remains entitled to submit the dispute to any other Court that would have been competent pursuant to the rules of law.
- Parties shall only refer the matter to the Court if they have done their utmost to solve the dispute in mutual consultations. Parties shall immediately notify the other Party, in writing, of any dispute, controversy or claim arising out of or in connection with the Agreement, including the validity, breach, amendment or termination thereof. Parties shall meet and endeavour to resolve the dispute between them within thirty (30) days after such notice.
Article 24: Applicable law
- Insofar as no legal provisions of an objectively applicable law mandatorily apply, any Agreement and legal relation between WRT and Customer will be governed by the law of the Netherlands to the exclusion of any other law.
- The United Nations Convention on Contracts for the International Sale of Goods (1980 – Vienna Sales Convention) (CISG) shall not apply to the Agreement and is explicitly excluded.
Article 25: Surviving provisions
All terms and conditions of the Agreement, including these General Terms and Conditions, that require continued performance, compliance, or effect beyond the termination date of the Agreement, such as but not limited to those conditions pertaining to confidentiality, non-solicitation, product warranty and liability, shall survive such termination date and shall be enforceable in the event of a failure to perform or comply.
Article 26: Interpretation of the General Terms and Conditions
- In case of disputes with regard to the interpretation, validity and performance of these General Terms and Conditions, the English text prevails at all time.
- Legal concepts are defined as they are in the Dutch legal system.
- The latest version of the General Terms and Conditions shall apply from the moment this version is made available to the Customer in accordance with Dutch law.