Dated March 4, 2015
1. Applicability
1.1 These General Conditions of Purchase apply to all orders and agreements concerning the delivery of goods and/or services to Wanders Wonders B.V., a private limited liability company, also operating under the name of Marcel Wanders Studio, having its registered office in Amsterdam and maintaining a place of business there at (1015 MA) Westerstraat 187, referred to below as: ‘Wanders’.
1.2 Wanders expressly rejects the applicability of any general conditions, general conditions of delivery and/or other conditions invoked by Wanders’ supplier.
2 Offers
2.1 An offer made to Wanders by a supplier will be deemed to be valid for a period of at least two months as from the moment of receipt of the offer by Wanders, and an offer made to Wanders by a supplier will be irrevocable, unless the parties have agreed otherwise in writing.
2.2 The supplier cannot attach any legal consequence to the making of an offer other than the content of the offer.
2.3 After the supplier has sent an offer to Wanders, the supplier cannot invoke absence of power of disposition on the part of the supplier against Wanders, unless Wanders receives written notification to that effect, addressed to Wanders, from the supplier immediately after the supplier sent the offer.
3 Conclusion of an agreement
3.1 An agreement between the supplier and Wanders will be concluded only upon written acceptance by Wanders of the supplier’s offer within the period of at least two months referred to in Article 2.1 of these General Conditions of Purchase, unless Wanders and the supplier have otherwise expressly agreed in writing.
3.2 Amendments to the agreement between Wanders and the supplier and deviations from these General Conditions of Purchase will apply between the parties only if confirmed to the supplier by Wanders in writing.
3.3 Wanders will be bound by its acceptance of the offer made by the supplier only insofar as the supplier has confirmed the order in writing by means of an order confirmation within two weeks of receipt of its acceptance by Wanders. If the order confirmation deviates from the original offer, Wanders will be bound only after it has expressly accepted the deviations in writing. If Wanders accepts deliveries or makes payments to the supplier, that will not imply acknowledgement of the deviations in the order confirmation.
4 Prices
4.1 Unless it has been otherwise agreed in writing, the prices in the offers made by the supplier must be denominated in euros and must be exclusive of turnover tax, and all the elements must be clearly itemised. The prices will be fixed and, unless it has been otherwise agreed in writing, include all the costs related to the fulfilment of the supplier’s obligations towards Wanders, including the costs of transport, insurance and packaging.
4.2 The supplier may in no event increase a price that it has quoted to, offered to or agreed on with Wanders. If the customary prices charged by the supplier for goods to be delivered to Wanders are reduced during the term of the agreement, the price charged to Wanders will be reduced accordingly.
5 Payment
5.1 Payment by Wanders will be made in euros within 30 (thirty) calendar days of receipt of the invoice, unless it has been otherwise agreed in writing or unless the supplier requests payment at a later time.
5.2 Wanders will have the right to deduct any contractual penalties and other discounts, whether or not due to non-conformity in the delivery of goods and/or services by the supplier, from the invoice amount. Payment of the remaining amount will discharge Wanders from payment of the total invoice amount.
5.3 If Wanders has not received all the goods and/or the entire services have not been delivered and accepted by Wanders in writing, it will have the right to suspend payment of the invoice amount until all the goods to be delivered have been received or the entire services are delivered and accepted in writing by wanders.
5.4 Payment of all or part of the purchase price by Wanders expressly does not imply waiver of any right of Wanders. Wanders otherwise reserves any right of, for example, suspension, retention, dissolution and set-off. Wanders may at any time reduce the invoice amount by the amounts payable to Wanders by the supplier.
5.5 If Wanders exceeds the payment period specified in Article 5.1 of these General Conditions of Purchase, it will in no event be required to reimburse any more than the statutory interest, which will not be payable to the supplier until the supplier has set a reasonable period in writing within which the invoice amount must be paid after all and Wanders has failed to make payment also within that reasonable period.
5.6 If the preceding paragraph applies, the supplier will not have any other claims against Wanders.
6 Guarantees
6.1 The supplier guarantees towards Wanders that the goods and/or services to be delivered will be of sound quality and free of defects, and that the goods and/or services in question will be delivered in the agreed form, quantity and quality, on the agreed date, unless the parties have agreed otherwise in writing. The supplier furthermore guarantees that the goods and/or services to be delivered will be entirely in conformity with the agreements made and with what Wanders can otherwise reasonably assume in respect of the properties, quality and reliability of the goods and/or the services, will be suitable for the purpose for which they are intended and will be entirely in compliance with the statutory obligations, requirements that apply in the Netherlands and within Europe, and other Dutch or European government regulations and/or Directives, including applicable NEN and ISO standards.
6.2 The supplier will inform Wanders of any relevant government or other regulations and must ensure for its own account that it obtains in a timely manner permits, permission or licences in connection with the goods and/ or the services to be delivered (or their production).
6.3 The guarantee period will be at least 24 months, as from the correct delivery of the goods to Wanders, unless otherwise agreed. The supplier must repair for its own account and risk any and all defects at Wanders’ first request and to Wanders’ satisfaction.
6.4 Wanders will have the right during, prior to or after the delivery of goods or the performance of the services to verify (or cause the verification of) whether the quality and other requirements agreed on with the supplier are being met. If those requirements are not (or not fully) being met, the costs of the verification will be payable by the supplier.
6.5 The supplier warrants that the goods to be delivered will be free from any and all charges and restrictions and that it is fully authorised to dispose of the goods.
6.6 The supplier warrants that the goods and/or services to be delivered will be free from design, material and/or manufacturing errors. If the goods do not meet that requirement or the goods or the services to be delivered do not meet any other guarantee given by the supplier (or if the supplier informs Wanders accordingly), the supplier must immediately repair the goods and/or remedy the default in the services without any costs for Wanders or, at Wanders’ option, replace the goods, without prejudice to the other provisions of these General Conditions of Purchase and/or the other agreements made between the parties.
6.7 The supplier guarantees that for a period of at least five years after delivery of the goods by the supplier maintenance at reasonable rates will be offered and that parts will be available for replacement.
7 Delivery; transmission of ownership and risk
7.1 The supplier will be required to deliver goods and/or services on the agreed date and at the agreed location. Late delivery and/or delivery at an incorrect location will immediately give rise to default on the part of the supplier, without any prior notice of default being required. All agreed delivery periods will be of the essence.
7.2 In addition to the agreements made and/or the other provisions of these General Conditions of Purchase, the supplier will owe a penalty of 2% of the agreed price per calendar week (or part of a calendar week) by which the supplier exceeds the delivery period, without any prior written notice of default from Wanders being required, which penalty will be payable immediately the moment it arises, also if only some of the goods are not delivered in time or in accordance with the specifications. Wanders will have the right to set off the penalty against any payments due to the supplier by Wanders, irrespective of whether the claim for payment has passed to a third party. Application of this provision will not affect Wanders’ right to full performance, full damages and/or termination or dissolution of the agreement.
7.3 Article 7.2 will also apply in full if the supplier does not deliver properly (e.g. not in accordance with the provisions of Article 6) or in full at the agreed time.
7.4 The supplier will be required immediately to notify Wanders if any circumstances occur that may result in the agreed delivery date being exceeded, without such notification by the supplier releasing it from its obligations towards Wanders or its other obligations.
7.5 The transfer and transmission of the ownership and risk will take place as soon as the goods and/or services have been delivered and placed at Wanders’ disposal at the agreed delivery address and Wanders has confirmed that in the form of unconditional acceptance by signing for receipt without any comments. The agreed delivery date will be binding and will be of the essence. The supplier will not have the right to retain title to the goods delivered. Delivery and transmission of ownership and risk to Wanders will not release the supplier from its obligations under an agreement with Wanders or under the other provisions of these General Conditions of Purchase, such as but not limited to the guarantees set out in Article 6 of these General Conditions of Purchase.
7.6 The most recent version of the Incoterms apply to the agreement, and delivery will be DDP (Delivery Duty Paid), without prejudice to the provisions of these General Conditions of Purchase.
7.7 Wanders will have the right to reject the goods and/or services to be delivered if a defect or default is established at the moment of delivery and will have the right not to accept the goods and/or services and to return them to the supplier. The supplier will bear the costs and the risk. Wanders and the supplier acknowledge that it cannot always be adequately verified upon delivery whether the goods and/or services delivered are in compliance with the agreements made and/or whether they have been properly delivered to Wanders without any defects or defaults; therefore, if it is established after delivery that the goods and/or services delivered are not in compliance with the agreements made and/or are not sound or complete, Wanders may reject the goods and/or the services delivered after all.
7.8 The supplier will be liable for any and all loss, including consequential loss and costs to be incurred by Wanders, if the supplier is in default in respect of the delivery.
7.9 The supplier must package all the goods soundly, safely and with due care, so that the goods cannot be damaged in any manner whatsoever and their value or suitability cannot otherwise be affected.
7.10 The supplier must state an itemisation of the goods, their relevant sizes and weights, and any offer or order numbers, as well as the agreed delivery address, on the transport documents.
8 Transfer
8.1 Without Wanders’ prior written consent, the supplier will not be permitted to transfer to third parties in full or in part an agreement concluded with Wanders for the delivery of goods and/or services, or to have such an agreement de facto performed by third parties. Wanders will have the right to make its consent, if any, subject to conditions.
9 Liability
9.1 The Supplier undertakes to reimburse any and all loss incurred by Wanders due to or in connection with the performance by the supplier of an agreement with Wanders, or in connection with the goods and/or services delivered by the supplier, which expressly includes cases in which the supplier fails to fulfil (or to properly fulfil) its obligations in accordance with Articles 6 and 7 of the agreement.
9.2 The supplier must arrange for adequate insurance to cover its liability under an agreement with Wanders and/or under these General Conditions of Purchase. At Wanders’ first request the supplier must provide Wanders with proof of the existence of such an adequate insurance policy and with proof of payment of insurance premiums.
9.3 The supplier must indemnify Wanders against any and all third-party claims for reimbursement of loss as referred to in paragraph 1, which includes all persons who work within the supplier’s business or at its instructions, including subordinates, executive/non-executive subordinates and auxiliary persons.
10. Termination and dissolution of the agreement
10.1 If the agreement between the supplier and Wanders is of the nature of a continuing performance agreement, it may be terminated by Wanders at any time with due observance of a notice period of at least 30 days, unless Wanders has valid reasons to terminate the agreement without observing a notice period.
10.2 Wanders will have the right to dissolve an agreement with the supplier by means of written notification to the supplier, in full or in part, with immediate effect, without any notice of default or judicial intervention being required, if:
a. the supplier fails to fulfil an obligation arising from the agreement with Wanders or to do so in a timely or proper manner;
b. the supplier has been declared bankrupt, a petition in its bankruptcy has been filed, it has been granted a suspension of payment or a petition to that effect has been filed, its business is liquidated, or an attachment has been levied on property of a sub-supplier; or
c. if the supplier’s business is transferred to third parties in any manner whatsoever, in full or in part.
10.3 The supplier will in that case be required to reimburse to Wanders all costs and loss, including the costs of legal assistance incurred by Wanders that are due to or arise from breach by the sub-supplier in the fulfilment of its obligations under the agreement with Wanders.
10.4 In the cases referred to above, Wanders will also have the right by means of written notification to the supplier to suspend its payment obligations and/or to transfer the performance of the agreement to third parties in full or in part, without Wanders being required to pay any damages and without prejudice to any other rights vested in Wanders, including Wanders’ right to claim full damages.
11 Intellectual property rights
11.1 The supplier warrants that none of the goods and/or services to be delivered to Wanders by it will infringe any intellectual or industrial property rights of third parties, indemnifies Wanders against any claims arising in that context, and will furthermore reimburse to Wanders all loss and costs that are the result of such infringement. The supplier will make every effort to safeguard the further quiet enjoyment of the goods and/or services by Wanders, without any costs being involved for Wanders. If that is impossible, the supplier will purchase the goods and/or services for Wanders for the supplier’s account that are in all respects equivalent to the infringing goods and/or services. The supplier warrants that it is adequately insured against claims as referred to in this Article and will give Wanders access to or a copy of the policies in question at its first request, as well as proof of payment of the relevant premiums.
11.2 All samples, designs, models, drawings, sketches, other works, resources or tools made available to the supplier by Wanders or produced or purchased by the supplier beforehand at Wanders’ instructions will remain Wanders’ property and all intellectual property rights in respect of the same will vest in Wanders. After delivery of the agreed goods and/or services or at Wanders’ first request, those samples, designs, models, drawings, sketches, other works, resources or tools will be returned to Wanders.
11.3 Making available samples, designs, models, drawings, sketches, other works, resources or tools will not imply any right or right of use of the supplier in respect of the relevant intellectual property rights. The supplier will be prohibited from copying such materials made available in full or in part and from otherwise processing and/or multiplying the same. All samples, designs, models, drawings, works or other tools made available to the supplier by Wanders under an agreement may be used only for the purpose for which they were made available by Wanders.
11.4 Without Wanders’ prior written consent, the supplier will not be permitted to modify or change any samples, designs, models, drawings, sketches, works or other tools provided by Wanders or to use them outside the scope of the agreement with Wanders.
11.5 Insofar as any intellectual property rights arise from the performance of the agreement between the supplier and Wanders, those intellectual property rights will vest exclusively in Wanders and the supplier undertakes at Wanders’ first request to provide all possible cooperation required for transfer to Wanders and/or registration in Wanders’ name.
11.6 The above provisions of Articles 11.1-11.5 will expressly also apply to promotional and other activities of the supplier. Without Wanders’ prior express consent, the supplier will therefore not be permitted in the context of such activities to use samples, designs, models, drawings, sketches, other works, tools or resources made available to the supplier by Wanders. Without Wanders’ prior written consent, the supplier will furthermore not be permitted to refer in promotional and other statements to the fact that the supplier is working or has worked with Wanders in any manner whatsoever.
12 Disputes
12.1 All offers, agreements, their performance and these General Conditions of Purchase are governed exclusively by Dutch law.
12.2 Any and all disputes that may arise from an agreement that is governed in full or in part by these General Conditions of Purchase or from further agreements arising from such an agreement will be settled exclusively by the Amsterdam District Court.
13 Final provision
13.1 Insofar as it is established in respect of any provision of these General Conditions of Purchase or of the agreement concluded with the supplier that Wanders cannot invoke that provision against the supplier, the parties will nevertheless act in accordance with the purpose and scope of that provision. If necessary, they will replace that provision with a provision whose purpose and scope are as similar as possible and that Wanders can lawfully invoke.