Legal notice

1: Applicability

 1.1. These terms and conditions apply to all offers made by Westerink Parts VOF, to all agreements entered into by it, and to all agreements arising therefrom, insofar as Westerink Parts VOF acts as supplier or contractor.

1.2. Westerink Parts VOF, which uses these terms and conditions, is also referred to as contractor/seller. The other party is also referred to as client/buyer.

2: Quotation

2.1. All quotations issued by the contractor/seller are non-binding.

2.2. A quotation loses its validity if it is not unconditionally accepted in writing by the other party within 14 days after the date thereof.

2.3. Every quotation is based on the information provided by the other party. The other party warrants the accuracy and completeness of this information.

2.4. If the other party does not accept the quotation, the contractor/seller is entitled to charge all costs connected to the quotation to the other party.

3. Formation of the Agreement

 3.1. The agreement is only concluded upon written confirmation by the contractor/seller or, if the agreement is concluded electronically, upon electronic or written confirmation by the contractor/seller.

3.2. The confirmations referred to under a. are deemed to fully reflect the agreement with the other party.

3.3. If the agreement is entered into between the contractor/seller and a party acting in the course of a profession or business, the provisions of Article 6:227b paragraph 1 of the Dutch Civil Code and Article 6:227c of the Dutch Civil Code shall not apply.

4. Advice and Information Provided

 4.1. The client/buyer cannot derive any rights from advice and information provided by the contractor/seller that do not directly relate to the assignment.

4.2. If the client/buyer provides information to the contractor/seller, the contractor/seller may rely on the accuracy and completeness thereof when performing the agreement.

4.3. The client/buyer indemnifies the contractor/seller against any claims by third parties relating to the use of advice, drawings, calculations, designs, materials, trademarks, samples, models and the like provided by or on behalf of the client/buyer. The client/buyer shall compensate all damage suffered by the contractor/seller, including all costs incurred in defending against such claims.

5. Prices

 5.1. Prices do not include: (1) turnover tax and other levies imposed by the government; (2) packaging costs; (3) travel hours, travel, parking and accommodation expenses; (4) costs incurred to prevent or limit damage to items present at the location where the work is carried out. The contractor/seller is entitled to charge these costs separately to the other party.

5.2. Quotations and confirmations by the contractor/seller are based on prices and circumstances as they exist at the time of the quotation or confirmation.

5.3. The contractor/seller may pass on increases in cost-determining factors that occur after the conclusion of the agreement to the client. The client is obliged to pay the price increase at the first request of the contractor.

5.4. In the event of a change to or addition to the agreement at the request of the other party, the contractor/seller may increase the price in accordance with its usual rates. The contractor/seller is never obliged to comply with such a request and may require that a separate written agreement be concluded for this purpose.

5.5. If there is additional work, the contractor/seller is entitled to increase the price. Additional work shall be calculated on the basis of the price-determining factors applicable at the time the additional work is agreed upon. Changes in the work shall in any case result in additional work if there is a change in the design, specifications or contract documents, or if information provided by the other party does not correspond with reality.

6. Delivery Period

6.1. The delivery time and/or execution period shall be determined by the contractor/seller approximately. In determining the delivery time and/or execution period, the contractor/seller shall assume the circumstances known to it at that time. The estimated and stated delivery time and/or execution period shall never be a strict deadline.

6.2. If circumstances arise other than those known to the contractor/seller at the time the delivery time and/or execution period was determined, the contractor/seller may extend the delivery time and/or execution period by the time needed to perform the agreement under those circumstances. If the work cannot be fitted into the contractor/seller's schedule, it shall be performed as soon as its schedule permits.

6.3. If there is additional work, the delivery time and/or execution period shall be extended by the time needed to procure the required materials and parts and to perform the additional work. If the additional work cannot be fitted into the contractor/seller's schedule, the work shall be performed as soon as its schedule permits.

6.4. If the contractor/seller suspends its obligations, the delivery time and/or execution period shall be extended by the duration of the suspension. If resumption of the work cannot be fitted into the contractor/seller's schedule, the work shall be performed as soon as its schedule permits.

6.5. Any liability of the contractor/seller for exceeding the delivery time and/or execution period is excluded.

7. Delivery and Transfer of Risk

 7.1. Delivery takes place at the moment the contractor/seller makes the goods available to the client/buyer at its business location and informs the client/buyer that the goods are available. From that moment onward, the client/buyer bears, among other things, the risk for storage, loading, transport and unloading.

7.2. The client/buyer and the contractor/seller may agree that the contractor/seller will arrange transport. In that case too, the risk for storage, loading, transport and unloading remains with the client/buyer. The client/buyer may insure itself against these risks.

7.3. If there is a trade-in and the client/buyer retains possession of the trade-in item pending delivery of the new item, the risk of the trade-in item remains with the client/buyer until the moment it is delivered into the possession of the contractor/seller. If the client/buyer cannot deliver the trade-in item in the condition it was in when the agreement was concluded, the contractor/seller may dissolve the agreement.

8. Force Majeure

 8.1. A failure to perform obligations cannot be attributed to the contractor/seller if that failure is the result of force majeure.

8.2. Force majeure includes, among other things, the circumstance that third parties engaged by the contractor/seller, such as suppliers, subcontractors and carriers, or other parties on whom the client depends, fail to perform their obligations or do not do so in time, weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failure, loss, theft or disappearance of tools, materials or information, road blockades, strikes or work stoppages, and import or trade restrictions.

8.3. The contractor/seller is entitled to suspend the performance of its obligations if it is temporarily prevented by force majeure from fulfilling its obligations towards the client/buyer. Once the force majeure situation has ended, the contractor/seller shall fulfill its obligations as soon as its schedule permits.

8.4. If force majeure exists and performance is or becomes permanently impossible, or if the temporary force majeure situation has lasted more than six months, the contractor/seller is entitled to dissolve the agreement in whole or in part with immediate effect. In those cases, the client/buyer is entitled to dissolve the agreement with immediate effect, but only for that part of the obligations that has not yet been performed by the contractor/seller.

8.5. The parties are not entitled to compensation for damage suffered or to be suffered as a result of the force majeure, suspension or dissolution referred to in this article. 

9. Third-Party Claims

 9.1. An assignment/purchase is carried out only for the client/buyer and not also for persons involved with the client/buyer.

9.2. The client/buyer indemnifies the contractor/seller against all third-party claims related to an assignment and/or work performed for the client and/or purchase and sale. Costs incurred by the contractor/seller in defending against such third-party claims shall also be borne by the client/buyer.

10. Liability in General

 10.1. Total liability in connection with an assignment/sale and/or work performed for the client/buyer or goods sold by it is limited to the amount of the fee/purchase price owed and paid by the client/buyer to the contractor/seller in respect of the relevant assignment/purchase, up to a maximum of 15% of the total contract sum or purchase price, excluding VAT, for that part of the agreement to which the damage-causing event is most closely connected. “Total liability” means the aggregate liability, if any, based on whatever legal grounds, including obligations to undo performance.

10.2. The limitations of the extent of liability in these general terms and conditions, such as in Article 10.1, do not affect the exclusions of liability in these general terms and conditions, such as in Articles 10.3 and 10.4. In addition, if an exclusion of liability does not apply in a particular case, the limitations of the extent of liability shall remain fully applicable.

10.3. Liability for indirect damage or consequential damage is excluded under all circumstances. Examples of such damage are loss of profit, lost savings, damage due to business interruption, delay damage and contractual penalties payable to third parties.

10.4. The contractor/seller makes efforts to prevent “cyber incidents” and to limit their negative consequences. A “cyber incident” means a breach of the security policy of a computer system, in the broadest sense of the word, intended to compromise its integrity or availability and/or unauthorized access or attempted unauthorized access to a computer system; examples include malicious disruption and/or denial of service, in addition to unauthorized access or attempted unauthorized access to a computer system and/or data, possibly resulting in data breaches. Liability in connection with a cyber incident is excluded.

10.5. The limitations and exclusions of liability and indemnities included in these general terms and conditions do not apply insofar as liability is the result of intent, gross negligence or deliberate recklessness on the part of the contractor/seller or persons charged with the management of its business.

11. Complaints

 11.1. A complaint relating to the work performed and/or the invoice amount must be submitted in writing to the contractor within 14 days after the date of dispatch of the documents or information about which the client complains, or within 14 days after discovery of the defect if the client proves that the defect could not reasonably have been discovered earlier.

11.2. If the complaint is not submitted in time, all rights of the client in connection with the complaint shall lapse.

11.3. Complaints about goods that have been altered by parties other than the contractor/seller or third parties engaged by it will not be accepted. The other party can also no longer invoke a defect in the agreed performance if the product supplied by the contractor/seller is not used in accordance with the instructions for use. Complaints, even if well-founded, do not suspend the buyer’s obligation to pay, nor is set-off by the other party permitted.

12. Goods Not Taken Delivery Of

 12.1. The client/buyer is obliged to actually take delivery of the item or items that are the subject of the agreement at the agreed place after the delivery time or execution period has ended.

12.2. The client/buyer must provide all cooperation free of charge to enable the contractor/seller to deliver.

12.3. Goods not taken delivery of shall be stored at the expense and risk of the client/buyer.

12.4. In the event of a breach of paragraph 1 or 2 of this article, the client/buyer, after being declared in default by the contractor/seller, shall owe the contractor/seller a penalty of €250 per day for each breach, up to a maximum of €25,000. This penalty may be claimed in addition to damages under the law.

13. Payment

 13.1. If no payment term is stated on the invoice, invoices must be paid by the other party to the contractor/seller no later than 14 days after the invoice date, or within another payment term agreed in writing between the other party and the contractor/seller, into an account designated by the contractor/seller. The contractor/seller is entitled to invoice the other party in installments by means of partial invoices.

13.2. The other party is obliged, at the first request of the contractor/seller, to provide security deemed sufficient by it for payment of the amount owed under the agreement. If this request is not complied with, or not complied with in time, the contractor/seller is entitled to suspend delivery or dissolve the agreement and recover its damage from the other party.

13.3. Everything the contractor/seller has to claim from the other party under any agreement becomes immediately due and payable if: (1) a payment term has been exceeded; (2) attachment is levied on goods or claims of the other party; (3) if the other party is a legal entity, the other party is dissolved, liquidated, declared bankrupt or applies for suspension of payments; (4) if the other party is a natural person, the other party requests admission to statutory debt restructuring, is placed under guardianship or dies.

13.4. If payment is not made within the agreed payment term, the other party immediately owes interest to the contractor/seller. The interest amounts to 12% per year, but shall be equal to the statutory commercial interest under Article 6:119a of the Dutch Civil Code if that is higher. The other party also owes the contractor/seller all extrajudicial collection costs, the amount of which shall be at least 15% of the total amount owed by the other party to the contractor/seller.

13.5. If the contractor/seller is found to be in the right in legal proceedings, all costs incurred by it in connection with those proceedings shall be borne by the other party.

13.6. The right of the other party to set off its claims against the contractor/seller is excluded.

13.7. The other party may grant the contractor/seller an authorization to collect amounts owed by the other party by direct debit. If the contractor/seller collects an amount using such direct debit, it shall inform the other party at least one working day prior to carrying out the collection by means of a pre-notification. The pre-notification may be communicated separately, as part of the invoice, or in any other manner determined by the contractor/seller.

14. Ownership

 14.1. Delivery of goods by the contractor/seller takes place subject to an extended retention of title. After delivery, the contractor/seller remains the owner of all goods delivered by it as long as all its current and future claims in respect of all deliveries of goods and related work, the amounts referred to in Article 13.4 of these General Terms and Conditions, collection costs and its other costs and damages have not been paid in full.

14.2. As long as a retention of title rests on delivered goods, the other party may not encumber or dispose of them outside the normal course of its business.

14.3. After the contractor/seller has invoked its retention of title, it may recover all goods delivered by it. The other party permits the contractor/seller to enter the place where those goods are located.

14.4. If the contractor/seller cannot invoke its retention of title because the delivered goods have been mixed, altered or incorporated, the other party is obliged to pledge the newly formed goods to the contractor/seller. 

15. Dissolution

 15.1. In the event of dissolution, for whatever reason, the other party shall pay at least fixed damages amounting to 25% of the purchase price. This fixed compensation is a minimum and does not affect the other rights, especially if the actual damage exceeds the said 25%.

15.2. The contractor/seller and the client/buyer respectively have the right to consider the agreement dissolved in whole or in part with immediate effect and by operation of law if the other party has been granted provisional or definitive suspension of payments, or has been declared bankrupt. Considering the agreement dissolved by operation of law on one of these grounds shall take place by registered letter to the other party.

16. Disputes.

 All disputes related to or arising from the Agreement shall be submitted exclusively to the competent civil court at the place of residence or place of business of the contractor/seller in the Netherlands and shall be governed exclusively by and interpreted in accordance with Dutch law. In this respect, the applicability of the Vienna Convention on Contracts for the International Sale of Goods is expressly excluded.

17. Severability

If any provision of these General Terms and Conditions is void or annulled, the remaining provisions of these General Terms and Conditions shall remain fully in force, and the contractor/seller and the other party shall consult with each other in order to agree on a new provision to replace the void or annulled provision, observing as much as possible the purpose and intent of the void or annulled provision.