General Terms and Conditions of Delivery and Sale
“General Terms and Conditions of Delivery and Sale of the private limited company WISA, with its registered office in Enschede,
as registered with the court registry of the District Court of Almelo (January 2021).” Registration Ch. of Comm. Enschede 06057308
Article 1. General
Unless explicitly agreed otherwise, the concerned General Terms and Conditions, are applicable to all our deliveries of goods and all services performed by us. The applicability of any reference to the general terms and conditions of Contracting Party is expressly rejected by WISA ENSCHEDE B.V., hereinafter “Wisa”.
Article 2. Quotations and assignments
All quotations will at all times be without obligation. Unless expressly stated otherwise, each quotation will be based on a performance under normal circumstances and during regular working hours. Wisa will only be bound after it has received a written order from Contracting Party and after this order has been confirmed by Wisa. This confirmation of order will be sent per email as PDF and will then be considered to be an Agreement. Activities that are not stated in the quotation, are not covered by the Agreement and may lead to a price increase. Changes in the assignment, after it has been granted by Contracting Party will be carried out if the stage of the performance of the assignment allows for this, against charging on any related costs. Costs in this respect will minimally be €25.00 per alteration. Contracting Party can only cancel the Agreement by sending a written message of cancellation (including by email) to Wisa or by contacting Wisa by telephone on +31 (0)53 461 15 15. The cancellation will only become effective after the cancellation message has been confirmed by Wisa in writing (including by email). Contracting Party can no longer cancel the assignment after Wisa has taken it into production. In the event of cancellation (only applicable if Wisa has not yet taken it into production), Contracting Party will at least be due an amount of €50.00 to Wisa. If the actual costs incurred by Wisa amount to more than €50.00, Contracting Party will be due the actually incurred costs to Wisa.
Article 3. Prices and invoicing
Prices are calculated in euro for delivery ex works (EXW). Freight costs will be invoiced separately. Unless agreed otherwise, the price quoted by Wisa is exclusive of VAT due. The invoice will be sent by email. Overruns or underruns up to 10% are possible against calculation/ setoff. In the event that Wisa has taken up packaging, shipment or insurance of the ordered products and no price has been agreed explicitly in writing, Wisa will be authorised to charge the actual costs and/or the usual rates with Wisa, to Contracting Party. If prices or rates change as a result of an increase in cost factors after an Agreement has been formed but before the assignment has been performed in full, Wisa will be authorised to adjust the agreed prices and rates.
Article 4. Delivery times
Delivery times stated by Wisa in correspondence, quotations, order confirmations or price lists are always without obligation; there is no final deadline.
Article 5. Delivery
Unless explicitly agreed otherwise in writing, delivery will be considered to take place ex our warehouse in Enschede, so that the risk will be at the expense of Contracting Party as from the time that the goods have left the warehouse. Loading and unloading of goods as well as transport will take place outside the responsibility of Wisa and at the risk and expense of Contracting Party, except insofar as this is carried out by Wisa with own vehicles. Articles of a personal nature, i.e. that are printed or personalized in another way according to the wishes stated by Contracting Party, fall outside the scope of the right of withdrawal as this concerns customised work. There is no reflection time for personalized items: once the order process has started after approval by Contracting Party, the right of withdrawal will automatically lapse. Wisa will be authorized to make partial deliveries and to send partial invoices in relation thereto. If Contracting Party is in arrears in paying any invoice, Wisa will have the right to store the products at the risk and expense of Contracting Party and to postpone delivery until all invoices due have been paid.
Article 6. Risk and transfer of ownership
Immediately after the goods are considered to have been delivered within the meaning of article 5, Contracting Party will bear the risk of all direct and indirect damage that may arise for Contracting Party or third parties to or by these goods. Without prejudice to the provisions in the previous paragraph and in article 5, ownership of the goods will only be transferred as soon as all that is due in respect of these goods, including any interest and costs, has been paid in full, such without prejudice to any rights acquired by third parties.
Article 7. Invoicing and payment
Insofar as not explicitly agreed otherwise in writing, payment will take place in cash. Any claim to settlement from the side of Contracting Party is excluded. Deduction for payment in cash will not be not allowed. In the event that Contracting Party does not pay within the agreed term, it will be considered to be in default by operation of law and Wisa will be entitled without any demand or notice of default, to invoice Contracting Party the statutory commercial interest (section 6:119a Dutch Civil Code) over the invoice amount. Notwithstanding the provisions of section 6:43 Dutch Civil Code, payments will be considered to have been made in deduction of unsecured debt, irrespective of any instructions stated with the payments. If late payment results in collection through legal proceedings or otherwise, the amount of the recovery will be increased by 10% administration costs, not including the costs of counsel in charge of the collection which will be at the expense of Contracting Party up to the amount due or paid by Wisa. Wisa will at all times be entitled to require prepayment of an invoice amount or require any other financial security before starting with or continuing with the performance of the Agreement. In the event that the financial position of Contracting Party changes during the performance of the Agreement, Wisa will have the right to partially or fully refrain from the further performance of the Agreement or to change the terms of payment. All alterations in accepted work will be due as additional work if they entail extra costs. Independent from the obligation to pay the principal sum, additional work will be settled in accordance with the principles of reasonability and fairness. All activities and used material not included in the quotation will be considered to be additional work.
Article 8. Shipment
Irrespective of the value of the shipment, Wisa will determine the manner of shipment unless Contracting Party has indicated in which manner the transport needs to take place.
Article 9. Packaging
If Contracting Party has special wishes with respect to the manner of packaging or if Wisa considers it necessary to apply special packaging, this will be invoiced separately.
Article 10. Complaints and liability
If defects in the shipment cannot be determined immediately on receipt, complaints will only be considered if these are notified within 8 days after delivery of the shipment in writing (including by email) to Wisa. Complaints will never be recognized if the delivered goods have in any manner whatsoever been used, processed or printed by or on behalf of Contracting Party. Defects noted in part of a delivery do not grant the right to reject the entire shipment or to refuse the receipt of the remaining part of the shipment. Wisa will not be held to reimbursement of costs, compensation for damage or interests including due to personal accidents and damage to movable and immovable goods. Hidden defects must be reported by Contracting Party within eight (8) days after the defect was detected or could reasonably have been detected but at the latest within two (2) months after delivery in writing (including by email) and accurately and satisfactorily described, to Wisa, in default whereof any claim of Contracting Party in respect of Wisa will lapse. At the request of Wisa, Contracting Party will be obliged, at the discretion of Wisa, to send a photograph, a specimen copy or the complete order to process the complaint. Wisa will never be liable for any (in)direct damage of Contracting Party (to third parties) including consequential damage (such as loss of turnover or profit), immaterial damage, business or environmental damage. The liability of Wisa with respect to Contracting Party for any reason whatsoever per event (in which a related series of events qualifies as a single event) will be limited tot the height of the invoice amount (excluding VAT), or the liability will be limited to the amount that Wisa will receive from its corporate liability insurance company. This liability insurance limitation will not be applicable insofar as the damage concerned has been caused by intent or gross negligence of Wisa. When Contracting Party notes a deviation in the dimensions of the product after delivery, it cannot make a claim by reason of failure if the deviation is less than 5%. Deviations in quality (feel) and in grammage are allowed to a certain extent. In case of complaints, Contracting Party needs to contact Wisa first. Complaints submitted with Wisa will be answered within a term of 14 days calculated from the date of receipt. If a complaint requires a foreseeable longer processing time, Wisa will answer within the period of 14 days with a confirmation of receipt message and an indication when Contracting Party may expect a more detailed reply. If a complaint is found to be justified by Wisa, Wisa , at its discretion, will replace or repair the products free of charge. Contracting party will be held to indemnify and hold Wisa harmless against all costs, damages and interests that may arise for Wisa as direct or indirect consequence of claims by third parties on Wisa in respect of incidents for which Wisa is not liable pursuant to these Terms and Conditions. Wisa will never be liable for the use of images and/or texts on products manufactured by Wisa or third parties commissioned by Wisa, as ordered by Contracting Party. Contracting Party warrants its right to use stated images and/or texts and, therefore, indemnifies Wisa unconditionally against any claim in respect of third parties, as well as for placing images on our website and in our price list/brochures. If Wisa in such a case performs procedures for the purpose of the product such as trimming or cutting products, all rights of intellectual property that arise, will also exclusively remain with Contracting Party. Intellectual property rights are taken to include all worldwide copyrights, neighbouring rights, personality rights, trademark rights, model rights, data-bank rights and (claims to) patent rights that are based on ideas, designs, communications, drawings, images, sketches, research, analyses, material, data, results, conclusions and all other objects and products that are eligible for intellectual property. In case Contracting Party creates a design in cooperation with Wisa, all intellectual property rights that arise, will exclusively remain with Wisa. In such a case, Wisa will be the full and exclusive titleholder with respect to these rights. In this article paragraph ‘designs’ will be taken to include: designs, images, drawings, models, texts and text proposals supplied by Wisa. Designs, printing plates, cutting dies etc. produced or commissioned by Wisa, whether or not at the request of Contracting Party, will remain the property of Wisa.
Article 11. Printing
In addition to the above-stated provisions, the following will apply with regard to printed goods. Wisa will carry out an (automated) check after the formatted files have been sent. During this check we check whether the sent files meet the technical requirements (supply specifications) for the printing process. This does not include a check whether the file contains errors in respect of the design, text or colour or if it is insufficiently sharp. Contracting Party needs to take into account that the colour of products may deviate after production from colours of other ( printed) products, between multiple orders, between products in a single order, test prints, digital examples, formatted files, colour on screen or files printed out by Contracting Party. A deviation up to a certain extent does not entitle Contracting Party to make a claim for failure. The printing quality of balloon printing cannot be compared with other writing methods. For this reason no complaints with regard to the printing quality are recognized for this printing method.
Article 12. Termination
Without prejudice to other rights to which Wisa is entitled, if we are prevented from performing the Agreement due to force majeure, Wisa will have the right to terminate the Agreement without judicial intervention, partially or in full without being held to any compensation of damages. In the event that Contracting Party does not, not properly or not timely fulfil any obligation ensuing from this Agreement or any other agreement with Wisa, as well, in case of bankruptcy, suspension of payments, shut-down or dissolution of the business of Contracting Party, it will be considered to be in default by operation of law and Wisa will have the right without notice of default or judicial intervention to suspend the performance of the Agreement partially or in full, at our discretion without being held to any compensation of damages but without prejudice to any other rights Wisa is entitled to. In these cases, any claim at the expense of Contracting Party, now or in the future will immediately become due and payable.
Article 13. Disputes
Deviations of, alterations and/or additions to these Terms and Conditions or the agreements will only apply if and insofar Wisa has expressly accepted these in writing (including by email) and will only apply for the specific Agreement for which they have been agreed. All disputes, including disputes that are considered as such by one of the parties that may arise between the parties from the Agreement or agreements ensuing from the Agreement, will exclusively be submitted to the decision of the district court in Almelo.
Agreements between Wisa and Contracting Party are exclusively governed by Dutch law. This will also be applicable if Contracting Party resides outside the Netherlands. The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
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