General Terms and Conditions of Sale for Westacc. B.V.

Buyer:    the counterparty to Westacc with which Westacc has a legal relationship;
Agreement:    the agreement between Westacc and the Buyer of which the General Terms and Conditions form an integral part;

Parties:    Westacc and the Buyer;
Products:    all items which are subject to an offer or an agreement;
Westacc:    The private company, Westacc B.V., registered with the Dutch Chamber of Commerce under number 24240188, having its registered office and place of business at Oud Camp 9, 3155 DL Maasland, municipality of Midden-Delfland, user of the present General Terms and Conditions.

2.1    The terms and conditions below apply to all legal relationships between Westacc and its Buyer, including but not limited to offers, quotes, agreements, the purchase and sale of goods and services and such.

2.2    There can be no derogation from these Terms and Conditions, unless the Parties so agree in writing and only for the specific case in question.

2.3    Westacc explicitly rejects the applicability of the General Terms and Conditions of Purchase, Delivery or Payment and/or any other General or Special Terms and Conditions of the Buyer.

2.4    If a provision contained in these General Terms and Conditions is invalid or should become invalid, the other provisions contained in these Terms and Conditions will remain in full effect. In that case Westacc and the Buyer are obligated to replace (or have replaced) the valid or invalidated provision in a manner that most closely matches the intention behind the valid or invalidated provision.

2.5    Westacc is authorised to amend these General Terms and Conditions at any time. Amendments take effect thirty (30) days after the Buyer has been notified in writing. If the Buyer does not wish to consent to the amendments, it has the right to terminate the Agreement, with due observance of a notice period of 30 (thirty) calendar days, at the earliest on the date on which the amendments take effect.

2.6    If these General Terms and Conditions are amended in the interim, the amended version of them forms an integral part of every agreement concluded between Westacc and the Buyer on the date on which the amendment takes effect.
 

3.1    All (sale) agreements are deemed to be created at the location of Westacc's branch, with regard to both performance and payment.

3.2    All offers and pricing provided by Westacc are entirely free from commitment, unless otherwise explicitly stated in writing.

3.3    All pricelists, brochures and other data quoted with an offer are as accurate as possible. Any data on quality, dimensions, quantities, weight etc. on the website, in its mailing lists, brochures, quotes or otherwise provided are only an indication. Under no circumstances is Westacc liable for any deviations and/or any errors in the details provided.

3.4    Westacc cannot be held to its offer, if the Buyer knew or should have realised that the offer or a portion thereof, contained an obvious mistake or typo.

3.5    Westacc is not bound to its offer in the event of any printing errors, misprints or programming errors on the website, in its mailing lists, quotes, assignment confirmations and/or invoices, nor can Westacc be held liable in any way for any inaccuracies in the price it indicates.

3.6    Unless otherwise stated, offers and quotes do not automatically apply to future assignments and/or repeat orders.

3.7    The agreement is created at such time as the Buyer accepts Westacc's offer, unless Westacc notifies the Buyer immediately after acceptance that it is revoking the offer.

4.1    Unless otherwise stated, the prices are quoted in Euro, excluding VAT, import duties and other levies imposed by the government and excluding the cost of packaging, loading and unloading, transport/shipment, (dis-)assembly and insurance.

4.2    The agreed prices/pricelists are based on the price of materials and apply on the date on which the agreement is created. Likewise, the separate costs of packaging, loading and unloading, transport/shipment, insurance premiums, tax levies, etc. are based on the applicable prices on the date on which the agreement is created.

4.3    Westacc is authorised to change the agreed price/prices at any time and pass on the costs to the Buyer, if a (significant) change arises in the (cost) price factors for delivery, even if this occurs as a result of foreseeable circumstances.

4.4    Westacc is entitled to increase the prices and rates for its products and services annually.
 

All delivery times provided by Westacc are merely indicative and non-committal and they will never be deemed to be a deadline. In no way can (exceeding) the indications for delivery times result in a culpable failure on the part of Westacc, nor is the Buyer under any circumstances entitled to make a claim for compensation of damages, nor can this lead to the cancellation of the assignment and/or dissolution of the agreement, unless the Buyer cannot be reasonably required to leave the relevant section of the agreement in effect.

6.1    The products will be delivered from the warehouse (factory, EXW) in Maasland, the Netherlands, as specified in the Incoterms 2010. In the event of any discrepancy between the Incoterms 2010 and these Terms and Conditions, then these Terms and Conditions will take precedence. Transport and/or shipment will only take place at the Buyer's expense and risk.
6.2    If it is agreed that transport will take place by or on behalf of Westacc, the Parties will agree in advance, in writing, whether the delivery will take place at such time as the transport commences or at the time of delivery to the agreed location.

6.3    If the items are stored for the Buyer at a Westacc or third party location, by or on behalf of Westacc, the delivery is made at such time as the items are stored.

6.4    If the Buyer does not collect the products after the delivery deadline has passed, the products will be stored for collection by the Buyer at the Buyer's expense and risk.

6.5    Westacc is entitled to deliver items sold in parts. This does not apply if a partial delivery does not have any independent value. If the items are delivered in parts, Westacc is entitled to send a separate invoice for each part.

From the time of leaving the warehouse or commencement of the transport/shipment, the risk in respect of the items is transferred to the Buyer, even if the property has not been handed over the Buyer, in view of the provisions contained in Article 8.
Article 8. Retention of title

8.1    Items delivered by Westacc remain the property of Westacc until the date of full payment of all of Westacc's claims against the Buyer pursuant to the agreements concluded between the Parties, including interest and costs.
8.2    Any items delivered by Westacc which come under the scope of the retention of title, pursuant to Article 8.1, can only be sold on in the context of the Buyer's normal business operations.
 
8.3    If the Buyer fails to comply with its obligations or if there is a well-founded concern that it will fail to do so, Westacc is entitled to remove or have removed items covered by the retention of title referred to in Article 8 from the Buyer's premises or from the premises of third parties which keep the item for the Buyer. The Buyer is obligated to lend its full cooperation in this regard.
8.4    The Buyer is obligated to insure and keep insured the items delivered under retention of title (at its own expense) against fire, theft and burglary, water damage and any individual risks. The Buyer will grant inspection of this insurance policy on first request.

8.5    If third parties wish to attach or enforce any right in respect of the items delivered with retention of title, the Buyer is obligated to inform Westacc of this as soon as can be reasonably expected.

8.6    The Buyer undertakes that it will provide its cooperation, within reasonable limits, for any measures which Westacc wishes to implement in order to protect its ownership of the items delivered.

9.1    Westacc enters every agreement on the suspensive condition that the Buyer is sufficiently creditworthy to comply with its financial obligations pursuant to the agreement, all this at the sole discretion of Westacc. In that context, Westacc is always entitled to request advance payment or adequate security from the Buyer before performing the agreement and the Buyer is required to provide this on first request.

9.2    Payments must be made by bank transfer to a bank account to be designated by Westacc, within fourteen (14) days of the invoice date, unless otherwise explicitly agreed. Compensation or offsetting is expressly excluded.

9.3    Any objections to the amount of the invoice/invoices do not suspend the Buyer's payment obligations.

9.4    After fourteen (14) days have passed after the invoice date, the Buyer will be in default. As a result of this, all invoices, even those which are not due, will become immediately payable. From that time onwards, the Buyer will owe interest in the amount of the statutory commercial interest rate plus 3%, all this without prejudice to Westacc's right to demand additional compensation of damages from the Buyer. Furthermore, the Buyer is required to pay all legal and extrajudicial costs incurred by Westacc. The extrajudicial costs are set at at least 15% of the principal, with a minimum of €500, without prejudice to Westacc's right to charge the actual costs incurred, including any legal costs, to the Buyer, should this amount exceed the amount calculated in this way. Likewise, the Buyer must pay any collection costs due.
 
9.5    The payments made by the Buyer are always first deducted from all interest and costs due and then from those invoices due which have been outstanding for the longest, even if the Buyer states that the payment pertains to a later invoice.

9.6    The Buyer is not permitted to offset its payment obligation(s) in respect of Westacc against a claim which the Buyer has against Westacc, for any reason whatsoever, except with Westacc's explicit written consent.

9.7    If the Buyer goes bankrupt or into suspension of payments or liquidation, Westacc's claims and the Buyer's obligations in respect of Westacc will become immediately payable.

9.8    Westacc is entitled to dissolve the agreement extrajudicially and to suspend further deliveries or performance of work and/or services in the event that the Buyer fails to make (prompt) payment or if the Buyer fails to (fully) comply with any obligation incumbent upon it, all this without prejudice to Westacc's right to demand that the Buyer comply with or pay compensation in respect of the losses suffered by the Buyer as a result of the termination of the agreement.

Unless a warranty (period) has been agreed for the product in question, Westacc cannot guarantee that the products will work without defects and/or that potential defects can be remedied.

a.    If a warranty is provided, the original warranty period will be used in the event that the product in question is repaired or replaced.
b.    If the products sold by Westacc are sourced from a factory, Westacc cannot offer any further warranty for the items delivered than the warranty (terms and conditions) provided by the manufacturer of these items.

c.    Without prejudice to the provisions contained in this Article, there is no warranty in the following cases:
-    if the original invoice cannot be submitted, if it is illegible or if it has been amended;
-    if changes have been made to the product;
-    in the event of the improper use of the product and/or failure to follow or violation of the conditions of use.
-    if repair work is performed by unauthorised repairers or by the Buyer itself;
-    if damage is caused deliberately, due to gross negligence or negligent maintenance on behalf of or by the Buyer and/or third parties.
d.    If any research costs and/or shipping costs are incurred in order to identify a defect/fault in (a part of) the product, which product is excluded from the warranty, then these costs will always be at the Buyer's expense. Westacc will endeavour to specify these costs in advance of the investigation. If this does not happen, however, that does not discharge the Buyer of its payment obligations.
e.    Any repair costs (outside the warranty) will be specified prior to the repair work. Westacc will perform the repair work once the Buyer has given its written consent. If the Buyer does not agree to the cost estimate, the Buyer
 
can return the products after paying the research and shipping costs.

11.1    The Buyer must investigate (or have investigated) the item delivered as soon as the items have been provided to it, on the understanding that it must investigate:
-    whether the right items have been delivered
-    whether the items delivered match the agreement in terms of amount and quantity
-    whether the items delivered comply with the requirements that may be set for the normal use of the items.
11.2    The Buyer must report (or have reported) any shortcomings or damage to the delivered item or any complaints about the invoice on the delivery note, the invoice and/or the shipping documents or otherwise Westacc must be immediately notified of the complaint in writing, with a clear description of the complaint, in the latter case within eight work days of the delivery at the latest and all claims against Westacc in relation to the invoice in question, the defects in the items delivered or in the work and/or services performed will expire as a result of any failure to do so.

11.3    Any advertisements do not discharge the Buyer from its payment obligations.

11.4    Any shortcomings or damage to a part of the delivered item cannot result in the rejection of the entire item.

11.5    If the Buyer does not report any defects or complaints within the periods of time referred to in Article 11.2, its complaint will not be accepted and its rights will expire.

11.6    If the items which are the subject of the complaint have been processed, modified or improperly stored at such time as a complaint is submitted, the Buyer's right to compensation or replacement of the delivered items will expire.

11.7    Returns will only be accepted with the written consent of Westacc. Westacc will keep any returns which are made without Westacc's written consent at the Buyer's expense and risk.

11.8    In the event of the delivery of items which are not accounted for in the agreement, Westacc is only required to re-deliver the correct items or to credit the price, all this at the Buyer's discretion.

11.9    In the event of a well-founded complaint/ a defect as referred to in this Article, the Buyer indemnifies Westacc against any claims from third parties as a result of said complaint/defect.

11.10    Without prejudice to the foregoing, all of the Buyer's claims which are based on items which are (allegedly) not accounted for in the agreement will expire after one year has passed since the time of leaving the warehouse or commencement of the transport/shipment.

Westacc is entitled to retain all products from and for the Buyer which it has in its possession until the Buyer pays all of the costs which Westacc spent on performance the agreement, regardless of whether the agreement pertains to the products and/or items in questions or to other items belonging to the Buyer, unless the Buyer has provided adequate security.

13.1    Westacc is not required to comply with one or more obligations pursuant to the agreement, if it is prevented from doing so as a result of force majeure. In addition to the definitions contained in Dutch law and case law, force majeure on the part of Westacc is partly but not exclusively defined as: Westacc's failure to properly comply with its obligations as a result of power outages or malfunctions which arise in the systems, the equipment and/or the production process of which Westacc avails itself (including but not limited to the website, order and payment procedure) and malfunctions in other networks of which Westacc avails itself, changes to products and/or technology provided by third parties, illness and/or injury of employees in its service, lack of staff, strikes, late delivery of items and/or services, regardless of whether this arises or takes place at Westacc's own location or at the location(s) of its (third-party) supplier(s), transport difficulties, defectiveness of items, materials, programming and/or equipment whose use the Buyer prescribed to Westacc and other circumstances which are independent of Westacc's wishes.
13.2    If the force majeure is of a temporary nature, Westacc has the right to suspend its obligations pursuant to the agreement for the duration of the force majeure scenario. If the period in which Westacc is unable to comply with its obligations last for more than three (3) months, both parties are authorised to dissolve the agreement in writing, by registered post. Before the Buyer proceeds with dissolution, it will always grant Westacc a final period of fourteen (14) days in which Westacc is given the opportunity to comply with the agreement, if possible, before it proceeds with dissolution. In the event of dissolution on account of force majeure, under no circumstances does the Buyer have any right to compensation of damages.

13.3    If Westacc has already complied with some of its obligations before the force majeure arises or if it can only meet some of its obligations, Westacc is entitled to send separate invoices for the portion which has already been and/or can be performed/delivered and the Buyer is required to pay this invoice as though it were a separate contract.

14.1    With the exception of intent and gross negligence, Westacc does not accept any liability for any damage which ensues from the use of products and/or services which it provides.

14.2    Only if and insofar as Westacc is liable, Westacc's total liability, insofar as this is covered by its liability insurance policy, is limited to the amount of the payment made by the insurance company with respect to the damage.

14.3    If the damage is not covered by the insurance policy, Westacc's liability is limited to direct financial losses and even then, to the invoice value of the assignment (excluding VAT) or at any rate to that portion of the assignment to which the liability pertains.

14.4    Direct damage is exclusively defined as:

a.    the reasonable costs incurred to determine the cause and the extent of the damage, insofar as the determination pertains to direct damage in the sense of these Terms and Conditions;
b.    any reasonable costs incurred to account for Westacc's performance of the agreement, unless these costs cannot be apportioned to Westacc;
c.    reasonable costs incurred to prevent or limit the damage, insofar as the Buyer demonstrates that these costs resulted in the limitation of direct damage, as referred to in these General Terms and Conditions.

14.5    The liability of Westacc and/or its employees for all other forms of damage besides those listed in this Article is excluded; this explicitly includes (but is not limited to): consequential loss, loss of profits, loss of savings, decreased goodwill, damage caused by third parties, damage caused by interruption to business.

14.6    The precondition for establishing the entitlement to compensation of damages is always that the Buyer notifies Westacc of the damage as soon as possible, albeit on penalty of expiry within eight (8) days of its discovery.

14.7    Furthermore, each claim against Westacc for compensation of damages will expire after a period of two (2) months has passed since the damage arose.

14.8    The Buyer indemnifies Westacc against claims from third parties in relation to intellectual property rights to materials provided by the Buyer or data used while performing the assignment.

15.1    In the event of an impediment to performing the agreement as a result of force majeure on the part of Westacc, even if this could have been foreseen at the time of creating the agreement, Westacc has the right to suspend performance of the agreement or do fully or partially dissolve the agreement, all this at Westacc's discretion, without the requirement for Westacc to pay any compensation of damages or otherwise.
 
15.2    It applies to all agreements that Westacc is entitled to fully or partially suspend the agreement by way of a written statement and without prior notice of default or notification and to terminate the agreement with immediate effect:
-    in the event of an attributable failure on the part of the Buyer with regard to one or more of its obligations and/or compliance is not possible;
-    if the Buyer has requested suspension of payments or payments have already been suspended, has requested bankruptcy or is already in a state of bankruptcy, proceeds with liquidation of its company or discontinues its activities or turns out to be insolvent in any manner whatsoever;
-    if major changes arise in the ownership or authority relationships of the Buyer or Westacc itself, which also includes mergers and acquisitions;
-    if Westacc can assume that the Buyer is or will be unable or unprepared to comply with its obligations, which includes if the Buyer's goods are seized at its expense in connection with substantial debts and this seizure remains in effect for over two months;
15.3    Nor is Westacc ever required to pay compensation of damages of any kind whatsoever in the event of termination.
15.4    If Westacc suspends compliance with its obligations, it reserves its claims pursuant to the agreement and under the law. If the agreement is dissolved, Westacc's claims against the Buyer will be immediately payable.

15.5    In the event the agreement is dissolved, the Buyer is required to immediately reimburse all costs already incurred by Westacc, without prejudice to Westacc's right to claim full compensation of damages.

15.6    The Buyer's obligations which, by their very nature, are intended to continue after the agreement has been terminated, will remain in effect. The termination of the assignment explicitly does not discharge the Buyer from the provisions pertaining to, inter alia, confidentiality, intellectual property rights, applicable law and competent court.

Westacc explicitly reserves any of its rights of intellectual property and/or industrial design (brands) connected with the products it delivers.

17.1    All Agreements between Westacc and the Buyer are governed exclusively by Dutch law, with the exception of the Vienna Convention.

17.2    Any disputes between the parties arising from agreements, from agreements which are the result of these and/or of these General Terms and Conditions will only be submitted to the competent court in the jurisdiction in which Westacc has its registered office.

These terms and conditions are filed on Westacc's behalf with the Haaglanden Chamber of Commerce in The Hague under file number 24240188. Therefore, all previously filed terms and conditions expire, except in the case of agreements of which they already form an integral part and into which the present terms and conditions cannot be incorporated.