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witsenburg natural products bv, with registered office at 2371 EV Roelofarendsveen, De Lasso Zuid 3a.
Filed on 30 March 2005 at the Chamber of Commerce Rijnland at Leiden The Netherlands under number 28046066.
Clause 1 Applicability
A. These terms and conditions apply to all offers made and all agreements concluded by witsenburg natural products bv to or with a party that is a natural person and does not deal whilst conducting a business or profession (below “the consumer”), for the delivery of goods and/or rendering of services, in the broadest sense of the words.
B. Unless agreed otherwise, in writing, the terms and conditions referred to in A. of this clause shall be deemed to have been accepted by the consumer.
C. These terms and conditions also apply to agreements if third parties need to be involved in the performance thereof.
Clause 2 Offers
A. All offers are made without obligation and are valid for 14 days, unless otherwise indicated.
B. All price lists, brochures and other information provided with an offer have been produced with as much care as possible. They are only binding upon witsenburg natural products bv if this has been expressly confirmed, in writing. All data/information provided with an offer shall remain the (intellectual) property of witsenburg natural products bv and must be returned upon first request.
C. witsenburg natural products bv reserves the right to refuse orders without giving any reasons for such refusal, to demand payment in advance and/or to require, at all times, the provision of security for the proper performance of payment obligations.
D. witsenburg natural products bv may not be obliged to abide by its quotations and offers if the consumer should, in all reasonableness and fairness and according to generally accepted standards, have understood that the quotation or offer or any part thereof contained an obvious mistake or clerical error.
E. If the acceptance should deviate from the offer whether on minor points or otherwise, witsenburg natural products bv shall not be bound by it. In such case the agreement is not concluded in compliance with such deviating acceptance, unless witsenburg natural products bv indicates otherwise.
F. A compound price quotation does not oblige witsenburg natural products bv to deliver any part of the goods included in the quotation against a proportional part of the quoted price. Quotations or offers do no automatically apply to follow-up orders.
G. Unless agreed otherwise in writing, the agreement is concluded by the timely acceptance of witsenburg natural products bv’s offer.
Clause 3 Complaints
A. The consumer shall be obliged to inspect the delivered goods at the time of delivery, but at any rate within the shortest possible time or cause the same to be so inspected. During such inspection the consumer should inspect whether the quality and quantity of the delivered goods are in compliance with the agreement, or satisfy the generally accepted standards in trade or otherwise.
B. Any visible defects should be reported to witsenburg natural products bv within three days after delivery, in writing, upon surrendering the defective product, unless this is impossible or unreasonably onerous.
C. The consumer should report any hidden defects by no later than within sixty days after discovery, whilst duly observing the provisions set forth in the previous paragraph of this Clause.
D. Where a situation occurs as the one referred to in this Clause under (B) or (C), witsenburg natural products bv shall replace or repair the product within a reasonable period after having received such product or, where returning would not reasonably be possible, after the consumer has reported the defect in writing. In the event of replacement, the consumer hereby assumes the obligation to return the replaced goods to witsenburg natural products bv and to transfer title to such goods to witsenburg natural products bv.
E. The provisions set forth in this Clause under (D) do not apply where the defect occurred as a consequence or inexpert or improper use or when the consumer or third parties should, without witsenburg natural products bv’s consent, in writing, have modified or tried to modify the goods or have used them for purposes for which they were not intended.
F. Goods may be returned only with the permission, in writing, of and in the manner as indicated by witsenburg natural products bv.
Clause 4 Prices
A. The prices quoted by witsenburg natural products bv are net, in € (euros) and include VAT. Where and to the extent applicable, forwarding costs will be stated.
B. Exceptional additional clearance charges and/or import duties are not included in the price and must be paid by the consumer.
C. Where witsenburg natural products bv agrees a certain price with the consumer upon concluding the agreement, witsenburg natural products bv shall nevertheless be entitled to increase the price, even where the original price was not quoted subject to reservation.
D. Where the price is increased within three months after the agreement was concluded, the consumer may dissolve the agreement by means of a written statement, irrespective of the percentage of the increase, unless
- such price increase is the consequence of a competence pursuant to or an obligation imposed upon witsenburg natural products bv by law; or
- if the condition has been made that delivery is to take place beyond three months after the purchase;
Clause 5 Retention of title
A. The goods delivered by witsenburg natural products bv shall remain the property of witsenburg natural products bv until such time as the purchase price has been paid in full.
Clause 6 Payment terms
A. Payment must be made net, in cash, within 30 days of the invoice date at the offices of witsenburg natural products bv, or by transfer to a bank or giro account designated by witsenburg natural products bv, in the currency of the invoice.
B. The consumer may not, under any circumstances, invoke any right to a deduction or setoff.
C. In the event of bankruptcy, suspension of payments, application of the Dutch Debts Rescheduling Natural Persons Act or guardianship, the debts payable to witsenburg natural products bv and any obligation of the consumer vis-à-vis witsenburg natural products bv shall be due and payable immediately.
D. Complaints with respect to an independent part of a specified invoice shall not, under any circumstances, release the consumer from its obligation to make payment within the period indicated in respect of the other items on the invoice.
E. The consumer shall automatically be in default once the term for payment has elapsed, without a warning or notice of default being required.
F. If the invoice remains wholly or partly unpaid after the aforementioned term for payment, the consumer shall owe witsenburg natural products bv delay interest of 1% per month or part thereof or, at witsenburg natural products bv’s discretion, the statutory interest rate prevailing at the time.
G. In the event of extrajudicial collection, in addition to the principal and interest the consumer shall owe the customary collection costs, subject to a minimum of EUR 50. The obligation to pay these costs shall be incurred on the sole basis of the debtor’s being sent notice by a third debt collector.
H. In the event of judicial collection, including a petition for bankruptcy, in addition to the court costs including lawyer’s fees, the consumer shall also be required to pay interest and extrajudicial costs.
Clause 7 Delivery and transfer of risk
A. Unless agreed otherwise, delivery shall be effected off-warehouse witsenburg natural products bv.
B. The consumer shall be obliged to take delivery of the goods purchased at the time they are at his disposal or handed over to him.
C. Where the consumer refuses to take delivery or fails to provide information or instructions required for delivery, the goods intended for delivery shall be stored at the consumer’s risk, after witsenburg natural products bv has notified the consumer. In such case the consumer shall owe any and all additional cost.
D. Where witsenburg natural products bv and the consumer agree on delivery at the consumer’s location, the delivery of purchases shall be free of charge, unless witsenburg natural products bv has notified the consumer of the established conditions upon the conclusion of the agreement. witsenburg natural products bv reserves the right, on delivery, to invoice the costs of delivery to the consumer’s location separately.
E. Where witsenburg natural products bv requires data from the consumer within the scope of performing the agreement, the time of delivery shall commence after the consumer has made such data available to witsenburg natural products bv.
F. Times of delivery shall always be given by approximation and shall never be firm delivery dates, unless explicitly agreed otherwise, in writing. Consequently, witsenburg natural products bv must be served a written notice of default in the event of late delivery.
G. The risk in respect of the goods shall pass from witsenburg natural products bv to the consumer at the time of delivery or, if applicable, delivery at the consumer’s location.
Clause 8 Cancellation and changes
A. Changes to or the cancellation of an order, on whatever grounds, shall require the written consent of witsenburg natural products bv.
B. Any increase or reduction in costs as a result of changes to the order will be offset, taking account of any redundant work already done.
C. In the event of unilateral cancellation of an agreement by the consumer, which is not permitted under these terms and conditions, the consumer shall be required to pay compensation in connection with costs incurred and loss of profits.
Clause 9 Liability of witsenburg natural products bv
A. witsenburg natural products bv shall only be liable for non-fulfilment, non-timely or inadequate fulfilment of the orders once witsenburg natural products bv has been given written notice of default, which must allow witsenburg natural products bv a period of one month to properly fulfil the agreement before legal proceedings may be instituted against witsenburg natural products bv.
B. Furthermore, witsenburg natural products bv shall not under any circumstances be obliged to pay any compensation other than that specifically provided for in these terms and conditions. In particular, witsenburg natural products bv shall not be obliged to pay compensation for direct and consequential loss as a consequence of actions by or negligence on the part of persons whose services witsenburg natural products bv uses.
C. witsenburg natural products bv shall not, under any circumstances, be liable for consequential damage. With respect to other damage, even in the event of liability under title 3, Section 3 of Book 6 of the Dutch Civil Code, witsenburg natural products bv shall not under any circumstances be liable for a higher amount than the amount paid by witsenburg natural products bv’s insurer, should the occasion arise.
D. The provisions set forth in this Clause under (B) and (C) shall not apply in the event of intent or gross negligence on the part of witsenburg natural products bv.
E. witsenburg natural products bv shall not be liable if the damage or loss can be imputed to intent and/or gross negligence and/or imputable acts or inexpert or improper use by the consumer.
Clause 10 Force majeure
A. witsenburg natural products bv may not be held liable for non-performance, incorrect or non-timely performance as a consequence of force majeure in the broadest sense of the term.
B. In this event, force majeure shall be deemed to include:
- breakdowns of operations or impediments that prevent the normal performance of the agreement or make normal performance difficult or more expensive;
- strike, illness or accident on the part of personnel charged with carrying out the order;
- war, threat of war, riot, natural disasters, fire, transport hitches, government measures that impact on the execution of the order, and all other unforeseen events affecting witsenburg natural products bv’s operations or at businesses from which witsenburg natural products procures goods related to the order in question;
- late or incorrect delivery of goods, materials etc, ordered by witsenburg natural products bv in timely and accurate manner, for whatever reason.
C. In the event of force majeure, the consumer will allow witsenburg natural products bv the opportunity to fulfil its obligations within a period that is reasonable in the particular circumstances and extends beyond the agreed date on which the order was supposed to be executed. If the force majeure situation persists, witsenburg natural products bv shall have the right to require that the order be changed so as to make it executable. If this is not possible in all reasonableness, the parties shall each have the right to consider the agreement to have been dissolved, and any goods supplied by the consumer will be returned to it by witsenburg natural products bv without any compensation. The declaration of dissolution must be issued to the consumer in writing. In the event of dissolution, neither party shall be required to pay the other any compensation.
Clause 11 Suspension and dissolution
A. All agreements are entered into subject to the condition precedent that the consumer’s payment capacity appears to be adequate on the basis of information to be obtained by witsenburg natural products bv.
B. witsenburg natural products bv has the right to suspend performance of the obligations or to dissolve the agreement, if:
- the consumer fails to fulfil the obligations arising under the agreement or fails to fulfil them in full.
- witsenburg natural products bv became cognizant of circumstances, after conclusion of the agreement, which give it good grounds for fearing that the consumer will fail to perform. In the event that there are good grounds for fearing that the consumer will only perform partly or improperly, suspension shall be permitted only to the extent that such failure justified it.
- upon the conclusion of the agreement, the consumer was required to provide security for the fulfilment of its obligations under the agreement and such security has not been provided or is unsatisfactory.
C. witsenburg natural products bv shall further have the right to dissolve the agreement or cause the same to be dissolved if circumstances occur that are of such nature that performance of the agreement would be impossible or can no longer be required according to generally acceptable standards or if otherwise circumstances occur that are of such nature that the unmodified maintenance of the agreement cannot reasonably be expected.
D. If the agreement is dissolved, the consumer’s debts payable to witsenburg natural products bv shall be due for immediate payment. If witsenburg natural products bv suspends performance of the obligations, it shall keep its rights under the law and the agreement.
E. witsenburg natural products bv shall always reserve the right to claim damages.
Clause 12 Copyrights
A. The copyrights on and title to works protected by copyright which are delivered by witsenburg natural products bv to the consumer, remain with witsenburg natural products bv or its supplier. Communication of that work to the public and reproduction of the same is prohibited unless and insofar this is explicitly agreed to in writing or after receipt of prior written approval from witsenburg natural products bv.
B. The consumer shall safeguard and hold witsenburg natural products bv harmless against claims, whether judicial or extra-judicial, from third parties based on an infringement of their copyrights and/or other rights, which infringement is attributable to acts of the consumer.
Clause 13 Disputes and applicability
A. Any disputes that may arise under the agreement shall be settled by the court that has jurisdiction under the law.
B. Unless otherwise agreed, in writing, all agreements shall be governed by the laws of the
Clause 14 Alterations
A. witsenburg natural products bv reserves the right to alter these General Terms and Conditions at any time.
B. The Dutch version of these terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.
Applicable terms and conditions in the event of distance purchasing
Where a purchase agreement with the consumer is concluded only through the website of witsenburg natural products bv, the following terms and conditions shall apply in addition to the terms and conditions stated above.
Clause 15 Conclusion of the agreement
A. At the time the consumer has completed, in full, the ordering procedure through witsenburg natural products bv’s website, the order is final. The purchase agreement is concluded only after the consumer receives a confirmation by e-mail from witsenburg natural products bv.
Clause 16 On approval period
A. For a period of seven working days after receipt of the order the consumer has the right to dissolve the agreement without giving any reasons for such dissolution.
B. Together with the statement of dissolution, the order shall be returned in the state in which it was at the time of receipt. Only non-used products in the original and unopened packaging are accepted. The goods returned shall always be accompanied by the original packing note provided, and the consumer’s bank or giro account number, so that the amount paid by the consumer can be paid back.
C. The costs of returning the goods are payable by the consumer.
D. witsenburg natural products bv will pay back the amounts paid within thirty days after dissolution.
E. Where the order is not, on receipt by witsenburg natural products bv, in the state as described above, the consumer shall be obliged to compensate witsenburg natural products bv for the damage sustained as a consequence hereof. In such case witsenburg natural products bv has the right to set off the damages with the amount to be paid back by witsenburg natural products bv to the consumer.
