ARTICLE 1 Applicability
1.1 These terms and conditions (‘T&Cs’) form part of all offers and agreements made by Wennemars Enjoy Calf Feeding B.V. (‘Wennemars’) and in any case of the agreement (the ‘Agreement’) to which the T&Cs are attached.
1.2 The terms and conditions of the commissioning party or client referred to in the Agreement (the ‘Client’) are only applicable insofar as they have been explicitly accepted by Wennemars in whole or in part.
ARTICLE 2 Price
2.1 Wennemars has based the price stated in the Agreement on the cost-determining factors applicable upon the conclusion of the Agreement. If the prices of the cost-determining factors rise, Wennemars may increase the price referred to in the Agreement accordingly.
ARTICLE 3 Quotations and offers
3.1 All offers and quotations are only binding if they have been made in writing and accepted by the Client.
3.2 A combined price does not oblige Wennemars to carry out part of the Agreement at a corresponding part of the price. Offers and quotations do not automatically apply to future agreements.
3.3 Wennemars is authorised to demand a deposit or advance payment.
ARTICLE 4 Termination of the Agreement
4.1 Wennemars may terminate the Agreement with immediate effect, without first giving the Client notice of default, if:
a. the Client dies;
b. the Client is put under curatorship;
c. the Client is granted suspension of payment;
d. the Client is declared bankrupt;
e. the Client is subject to a (statutory) debt restructuring scheme;
f. the Client’s company is closed;
g. ultimate control (either direct or indirect) of the legal entity in which the Client’s business is operated passes in whole or in part to one or more others than the person(s) in which this lies upon conclusion of this Agreement;
h. the Client fails to fulfil one or more of its obligations under this Agreement.
ARTICLE 5 Delivery of goods
5.1 Wennemars shall have the goods described in the Agreement (the ‘Goods’) manufactured as soon as possible after conclusion of the Agreement.
5.2 The Client shall take delivery of the Goods within 10 days after Wennemars has contacted the Client. If this term is exceeded, Wennemars is entitled to ship the Goods to a warehouse and charge the Client for the storage costs and any related costs.
5.3 Except in the case of gross negligence on the part of Wennemars, exceeding of the delivery time does not give the Client the right to terminate the Agreement in whole or in part, to claim damages or to refrain from fulfilling any obligation arising from any agreement concluded with Wennemars.
5.4 In the event of force majeure, Wennemars may either suspend performance of the Agreement or terminate the Agreement in whole or in part, without this giving the Client any right to damages.
ARTICLE 6 Transfer of risk
6.1 The Goods are at the Client’s risk from the time of delivery or, if delivery does not take place within the term referred to in article 5.2, after expiry of the term stated in article 5.2.
ARTICLE 7 Liability of Wennemars
7.1 Wennemars is not liable for damage resulting from a delay in the delivery of the Goods by the manufacturer to Wennemars.
7.2 The Client shall inform Wennemars immediately of any defects.
7.3 In any case, the Client may not claim any shortcoming in the performance if it has not submitted a complaint to Wennemars within 10 days after it has or should have reasonably discovered the defect.
7.4 Wennemars is never bound to pay any damages to the Client or others, unless in the event of a wilful act or gross negligence on the part of Wennemars. In particular, Wennemars is not liable for any damage resulting from defects in the Goods or for any consequential damage, trading loss or indirect damage, by whatever name, including loss of profits and loss owing to stoppage, suffered by the Client, its subordinates, persons hired by the Client or third parties.
7.5 Wennemars is not liable for any violation of trademark rights, licences or other rights of third parties as a consequence of using data provided by or on behalf of the Client.
7.6 Wennemars is not liable for any advice or the consequences of any advice it has given regarding the use and application of the Goods delivered or with respect to related matters such as the accommodation and breeding of or dealing with calves or other livestock.
7.7 If the Client has made repairs and/or changes to the Goods or has had others do so without the prior explicit written consent of Wennemars, Wennemars’ obligations under the warranty and/or its liability lapse.
7.8 The Client shall indemnify Wennemars against all claims regarding the performance of the Agreement which third parties may bring against Wennemars, insofar as the law does not prevent the damage and costs concerned being payable by the Client.
7.9 The provisions of this article may, if applicable, be invoked by third parties engaged by Wennemars.
7.10 Wennemars’ liability, insofar as it has not been excluded, is limited to the amount covered by Wennemars’ insurance or the purchase price of the Goods.
ARTICLE 8 Payment conditions
8.1 Payment shall be made within 30 days after the date on which the invoice is sent, without suspension, deduction or setoff, by transferring the amount stated on the invoice into the bank account of Wennemars.
8.2 If the Client has not paid the amount stated on the invoice after expiry of the payment term, the Client is in default. In that event, the Client shall pay the statutory commercial interest. The interest on the payable amount shall be calculated from the date the Client is in default until the date the amount payable has been paid in full.
8.3 If the Client is in default or fails to fulfil its obligations in a timely manner, all costs reasonably incurred to obtain an extrajudicial settlement shall be payable by the Client. The extrajudicial costs shall be calculated on the basis of the customary debt collection practices in the Netherlands at any given time. However, if Wennemars was reasonably required to incur higher collection costs, the actual costs will be eligible for compensation. Any court and enforcement costs will also be recovered from the Client. The Client shall owe interest on the collection costs payable.
8.4 If Wennemars considers this to be advisable for the performance of the Agreement by the Client, the Client shall on Wennemars’ first request furnish sufficient security to Wennemars, at Wennemars’ discretion.
ARTICLE 9 Retention of title
9.1 Ownership of the Goods shall not pass to the Client until the amount payable by the Client to Wennemars on account of the deliveries or activities, including any interest and costs, has been paid to Wennemars in full.
9.2 If Wennemars has invoked a retention of title, it may take back the Goods. The Client shall give Wennemars access to the location of the Goods to exercise its retention of title.
9.3 If Wennemars is unable to invoke its retention of title because the Goods have been mixed or acceded, the Client shall pledge the object containing the Goods to Wennemars.
ARTICLE 10 Intellectual property
10.1 All intellectual and industrial property rights to Goods manufactured or drawings and sketches made under the Agreement are vested in Wennemars only.
ARTICLE 11 Applicable law and jurisdiction
11.1 The Agreement and any relating agreements are subject to Dutch law, while excluding the applicability of the UN Convention on the International Sale of Goods.
11.2 Any disputes, of whatever nature, relating to or arising from the Agreement concluded between the parties shall be settled by the competent court of Zwolle, the Netherlands.