WRT bv, HFA Oil Additives ® HFA Oil Additives ®

General terms and conditions for sale of goods

General terms and conditions for sale of goods of W.R.T. Beheers- en Beleggingsmaatschappij B.V., having its registered office De Oude Visscher 25, 1189 WL, Amstelveen, the Netherlands. Filed with the Chamber of Commerce and Industry for Amsterdam, the Netherlands, on 02-11-2004 under number 320614070000 and with the District Court of Amsterdam, the Netherlands, hereinafter to be referred to as: "user".

Article 1 : Definitions

1. In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.

User  :  the user of the general terms and conditions.
Buyer  :  the user's opposite party, acting in the course of a business or in the course of a profession.
Agreement  :  the agreement between the user and buyer.

Article 2: General

1. The stipulations of the present terms and conditions shall apply to each and every offer and agreements, in which the user offers goods and/or services or of whatever nature to the buyer, to which user has declared the present terms and conditions applicable.

2. The agreements and these present terms and conditions can only be diverged from in writing.

3. The present terms and conditions shall also apply to all agreements with user, the execution of which calls for the services of third parties.

4. The application of any general conditions employed by the buyer is hereby explicitly rejected. The buyer's general terms and conditions shall only apply if parties have explicitly agreed in writing that said general terms and conditions shall apply to the present agreement with the exclusion of the present general terms and conditions. In that event possibly still conflicting stipulations in the user's and buyer's general terms and conditions shall only apply between parties, if and in so far that they are a part of user's general terms and conditions.

5. If one or more stipulations and/or paragraphs in the present general terms and conditions should be null and void or declared null and void or not binding, then the other stipulations and/or paragraphs of the present general terms and conditions shall remain fully applicable. The parties to this Agreement shall be obliged to replace the null and void or non-binding stipulations and/or paragraphs with other stipulations and/or paragraphs that are binding, in such a way that the new sections and clauses, taken into account the purpose and the meaning of the original conditions and the object and purpose of the agreements.

Article 3: Offers and Tenders

1. All offers shall be free of obligation unless the offer contains an acceptance term.

2. The offers made by user shall be free of obligation; they shall be valid for a period of thirty days, unless indicated otherwise. User shall only be bound by the offers if the acceptance thereof is confirmed in writing by the buyer within thirty days.

3. Terms of delivery given in user's offers shall only be tentative and exceeding these terms of delivery shall not entitle buyer to dissolution or damages, unless explicitly agreed upon otherwise.

4. The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of shipment costs and possible packaging and administration costs, unless explicitly stated otherwise.

5. If the acceptance deviates (on secondary items) from the offer given, user shall not be bound by it. The agreement shall in such event not be concluded in accordance with said deviating acceptance, unless user indicates otherwise.

6. A compound quotation shall not oblige user to execute part of the assignment against a corresponding part of the given quotation.

7. Offers that are also based on third party offers (such as freight quotations, stowage charges and the like) or that are subject to price fluctuations shall always be without engagement, even when this does not explicitly appear from the offer.

8. Offers and tenders shall not apply automatically to repeat orders.

9. In case of unforeseen circumstances that are of such nature that, according to criteria of reasonableness and fairness, the buyer cannot expect the agreement to be maintained unchanged, the user shall have the right to alter the prices and work and/or to dissolve the agreement with the buyer fully or partly without judicial intervention and without being obliged to pay compensation.

Article 4: Execution of the Agreement

1. User shall execute the agreement to the best of his knowledge and ability.

2. If and in so far required for the proper execution of the agreement, user shall have the right to have certain work done by third parties.

3. The buyer shall see to it that user shall be provided in due time with all data which user has said to be necessary or which the buyer must in all reasonableness understand to be necessary to the execution of the agreement. If user has not been provided in due time with the data necessary to the execution of the agreement, user shall have the right to suspend the execution of the agreement and / or to charge the buyer for the additional costs resulting from the delay at the generally accepted rates.

4. User shall not be liable for damage of whatever nature caused by the fact that user worked on the basis of incorrect and / or incomplete data provided by the buyer, unless user should have been aware of said incorrectness or incompleteness.

5. If parties have agreed that the agreement will be executed in stages, user can suspend the execution of the parts belonging to a following stage until the buyer has approved in writing the results of the stage prior to it.

6. If user or third parties engaged by user within the scope of the assignment do work at buyer's site or at a site designated by buyer, buyer shall provide the employees having to work there free of charge with all facilities desired in all reasonableness by said employees.

7. Buyer shall safeguard user against possible claims filed by third parties who may sustain damage attributable to buyer in connection with the execution of the agreement.

Article 5: Delivery

1. Delivery shall be made ex works/store/warehouse of user.

2. If delivery is made on the basis of the "Incoterms", the "Incoterms" valid at the moment the agreement is concluded, shall apply.

3. Buyer shall be held to take delivery of the goods the moment that user delivers them to him or has them delivered, or the moment at which the goods are put at buyer's disposal under the agreement.

4. If the buyer refuses to take delivery or fails to give the information or instructions necessary to the delivery, user shall be entitled to store the goods at buyer's risk and expense.

5. If the goods are serviced, user shall be entitled to charge possible service charges. Said service charges shall then be invoiced separately.

6. If, in the framework of the execution of the agreement, user requires data to be given by the buyer, the term of delivery shall commence after the buyer has provided user with said data.

7. If user has given a term of delivery, it shall only be indicative. A given term of delivery shall therefore never constitute a term to be observed on penalty of forfeiture of rights. If a term is exceeded, the buyer must give user notice of default in writing.

8. User shall be entitled to deliver the goods in parts, unless such is deviated from in writing in the agreement or if the partial delivery does not represent an independent value. User shall be entitled to invoice the thus delivered goods separately.

9. If execution of the agreement in stages has been agreed upon, user can suspend the execution of the parts belonging to a following stage until the buyer has approved in writing the results of the stage prior to it.

Article 6: Samples and Models

1. If a sample or model has been given to buyer, then the assumption is that such has been given by way of indication only, unless parties agree explicitly that the product to be delivered shall correspond with it.

Article 7: Inspection & Complaints

1. Buyer shall be held to examine the delivered goods (to have the delivered goods inspected) the moment of delivery (handing over), but in any case within five working days. In this respect, buyer must examine whether the quality and the quantity of the delivered goods comply with what was agreed upon, or at least whether they meet the requirements applying to said goods in normal (business) transactions.

2. Possible visible shortcomings must be communicated in writing and in detail by registered letter or by telex or fax, to user within three days following delivery. Non-visible shortcomings must be reported immediately following their detection but no later than 8 days after delivery. Without such notification within the specified time of three respectively eight days all possible entitlement to indemnity shall cease.

3. The buyer undertakes to record all samples he has drawn and, if not forwarded in accordance with the user's instructions, to store them (or have them stored) in appropriate places to be determined by the user. In case these samples have not been kept in accordance with the user's instructions and in appropriate places, all possible entitlement to indemnity shall cease.

4. If in accordance with the previous paragraphs, buyer files his complaint in due time, he shall still be held to take delivery and effect payment of the goods purchased. If buyer wishes to return defect goods, he shall do so following prior consent in writing from user.

Article 8: Remuneration, Price and Costs

1. If user and buyer have agreed upon an administered price, user shall nevertheless be entitled to increase said price.

2. User shall be allowed among others, to charge on price increases if changes in price have occurred between the moment the offer was made and the moment of execution of the agreement with respect to, e.g., exchange rates, salaries and wages, raw material, semi-finished products or packaging material.

3. The prices given by user shall be exclusive of VAT and other government levies, as well as of the other expenses to be possibly made within the scope of the agreement, including shipment and administration costs, unless stated otherwise.

Article 9: Changes to the agreement

1. If it is shown during the execution of the agreement that the work to be done needs to be changed and / or supplemented in order to ensure its proper execution, parties shall adapt the agreement accordingly in due time and in mutual consultations.

2. If parties agree that the agreement needs to be changed and / or supplemented, this decision may influence the time of completion of the execution. User shall inform the buyer thereof as soon as possible.

3. Should the change and / or supplement to the agreement have any financial and / or qualitative consequences, user shall inform buyer thereof in advance.

4. If a fixed rate has been agreed upon then user shall indicate the degree to which the change or supplement to the agreement will result in an increase of said fixed rate.

5. Contrary to the conditions governing this matter, user shall not be able to charge additional costs if the change or supplement is the result of circumstances attributable to user.

Article 10: Payment

1. Payment must be made within 14 days from the date of invoice, in a way to be indicated by user and in the currency in which the goods were invoiced, without any postponement, setoff or reduction. Contestation of the amount of the invoices shall not suspend the fulfilment of the payment obligation.

2. If buyer fails to fulfil his payment obligation within the term of 14 days, then buyer shall be in default by operation of law. In that event, buyer shall owe an interest of 1% per month, unless the statutory interest rate of article 6:119a Dutch Civil Code is higher, in which case the statutory interest rate of article 6:119a Dutch Civil Code shall apply. The interest on the amount due and payable shall be calculated as from the day the buyer is in default until the moment he has paid the amount in full.

3. In case of overdue payment, all the buyer's payment obligations shall fall immediately due and payable, irrespective of whether the user has already invoiced in the matter.

5. User's claims against buyer shall become due on demand in the event that buyer is wound up, attached, declared bankrupt, or if a suspension of payment is granted.

6. User shall be entitled to have the payments made by the buyer go first of all to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest. User shall have the right, without this leading user to be in default, to refuse an offer for payment, if the buyer designates a different sequence of attribution. User shall be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs.

7. User has the possibility to charge a credit limitation surcharge of 2%. This surcharge will not be charged if payment is made within 7 days from the date of invoice.

8. The buyer shall, on the user's demand, instantly provide adequate collateral security in the form required by the user for meeting his obligations, and to supplement such security if necessary for meeting all his obligations. As long as the buyer has not complied with such request, the usor shall have the right to suspend the performance of his obligations.

9. If in the case of overdue payment judicial or other action is taken for collection, the amount of the debt shall be increased, regardless of the interests already due and to fall due, by 10% of the principal amount to cover accounting costs as well as all judicial and extra-judicial costs (including the cost of legal assistance) as mentioned in article 13.

Article 11: Retention of Title

1. All goods delivered by user, possibly also including designs, sketches, drawings, films, software, (electronic) files, etc., shall remain user's property until buyer has fulfilled all of his obligations under all agreements concluded with user.

2. Buyer shall not be authorised to pledge or encumber in any way the goods falling under the retention of title.

3. If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, buyer shall be held to inform user thereof as soon as can reasonably expected.

4. The buyer shall undertake to insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand.

5. Goods delivered by user falling under the retention of title by virtue of the stipulations under 1. of the present article, may only be sold on within the framework of normal business activities and must never be used as instrument of payment.

6. In the event that user wishes to exercise his ownership rights mentioned in the present article, buyer shall give user or third parties to be appointed by user, now for then, unconditional and irrevocable permission to access all sites and locations where user's property might be found and to take these goods back.

Article 12: Guarantee

1. User shall guarantee that the goods to be delivered shall meet the usual requirements and standards that can be set for and made upon them and that they shall be free of any defect whatsoever.

2. The guarantee mentioned under 1 shall equally apply if the goods to be delivered are destined for use abroad and if the buyer explicitly informed user of this use in writing the moment the agreement was entered into.

3. The guarantee mentioned under 1 shall be valid for a period of three months following delivery.

4. If the good to be delivered does not comply with said guarantee, user shall, at his discretion, replace or see to the repair of the good, within a reasonable period of time following receipt thereof, or, if the good cannot be returned in reason, following notification of the defect by the buyer. In the event the good is replaced, the buyer shall already now undertake to return the replaced good to user and to transfer ownership to user.

5. The guarantee mentioned for this purpose shall not apply when the defect originated as the result of injudicious or improper use or when the buyer or third parties have introduced changes or tried to introduce changes to the good without user's consent in writing or if they have used it for purposes for which the good was not intended.

6. If the guarantee given by user concerns a good produced by a third party, the guarantee shall be limited to the guarantee given by the producer of the good.

Article 13: Judicial and extra judicial costs

1. If the buyer fails to fulfil his obligations (in due time) or defaults on them, then all reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the buyer. If the buyer remains in default of payment within the set time period, he forfeits a immediately payable fine of 15% on the amount due at that moment. This with a minimum of € 250.

2. If user demonstrates that he has incurred higher expenses, which were necessary in reason, said expenses shall also qualify for reimbursement.

3. The reasonable judicial and execution costs possibly incurred shall equally be borne by buyer.

4. Buyer shall owe interest over the made collection charges.

Article 14: Suspension and Dissolution.

1. User shall be authorised to suspend the fulfilment of the obligations under the agreement or to dissolve the agreement, in the event that:

  • buyer does not fulfil or does not fully fulfil his obligations resulting from the agreement
  • after the agreement has been concluded, user learns of circumstances giving good ground to fear that the buyer will not fulfil his obligations. If good ground exists to fear that the buyer will only partially or improperly fulfil his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
  • the user ends up in a situation in which fulfilment of the order cannot reasonably be demanded from it.
  • the buyer requests the suspension of payments or if such is granted, if a petition for bankruptcy of the other party is submitted or if the other party is declared bankrupt.
  • the buyer alienates his enterprise or loses the direct control over it.
  • buyer was asked to furnish security to guarantee the fulfilment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient. As soon as security is furnished, the authorisation to suspend shall lapse, unless said fulfilment has been unreasonably delayed because of it.

2. User shall furthermore be authorised to dissolve the agreement (have the agreement dissolved) prematurely, without intervention of a court of justice, if

  • the buyer is late with regard to payment or is, in some other way, imputably in default with regard to the fulfilment of its obligations, including obligations of previous agreements;
  • if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness.

3. The user will be authorised to dissolve the contract with immediate effect and to reclaim goods which are the property of the user which may be in the possession of the buyer.

4. If the agreement is dissolved, the user's claims against the buyer shall be forthwith due and payable. The buyer is obliged to indemnify the user the costs associated with the termination of the agreement If user suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.

5. The user is not liable for any loss suffered by the buyer which may result from the action of, or on order to, the user, as a result of the shortcomings of the user.

Article 15: Return of Goods Put at Buyer's Disposal

1. If user has put goods at buyer's disposal during and in connection with the execution of the agreement, buyer shall be held to return the delivered goods within fourteen days in their original state, free of defects and in their entirety. If buyer fails to fulfil this obligation, all resulting costs shall be at buyer's expense.

2. If, for any reason whatsoever, buyer still remains in default to fulfil the obligation mentioned under paragraph 1. after being warned to do so, user shall be entitled to recover the resulting damage and costs, including replacement costs, from buyer.

Article 16: Liability

1. If the goods delivered by user are defective, user's liability vis à vis the buyer shall be limited to the arrangements made in the present terms and conditions under "Guarantee": If the good to be delivered does not comply with said guarantee, user shall, at his discretion, replace or see to the repair of the good, within a reasonable period of time following receipt thereof, or, if the good cannot be returned in reason, following notification of the defect by the buyer. In the event the good is replaced, the buyer shall already now undertake to return the replaced good to user and to transfer ownership to user.

2. If user is liable for direct damage, then said liability shall be limited to a maximum of twice the amount of the statement of expenses, at any rate that part of the agreement to which the liability relates, at any rate to a maximum of € 20,000.00 (In words: euro twenty thousand). User's liability shall at all times be limited to the invoice value of the delivered goods.

3. Direct damage shall be understood to be exclusively:

  • the reasonable costs incurred to establish the cause and the volume of the damage, in so far said establishment relates to damage in the sense of the present terms and conditions
  • the reasonable costs possibly incurred to have user's faulty performance meet the conditions of the agreement, unless such faulty performance cannot be attributed to user;
  • the reasonable costs incurred to prevent or limit the damage, in so far buyer demonstrates that said costs have led to the limitation of direct damage as meant in the present general terms and conditions.

4. User shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.

5. The limitations of liability for direct damage contained in the present terms and conditions shall not apply if the damage is due to intentional act or omission or gross negligence on the part of user or his subordinates.

Article 17: Transfer of Risk

The risk of loss of, or damage to the products being the subject of the agreement, shall be transferred to buyer the moment said products are judicially and/or actually delivered to buyer and therefore fall into the power of buyer or of third parties to be appointed by buyer.

Article 18: Force Majeure

1. Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.

2. In addition to the provisions of the law and the case law in this respect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which user cannot have any influence but which prevents user from fulfilling his obligations. Industrial action at user's company shall also be understood to be a circumstance of force majeure.

3. User shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which user should have fulfilled his obligation.

4. Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.

5. Insofar user has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, user shall be entitled to invoice the part already fulfilled or still to be fulfilled respectively. The buyer shall be held to pay this invoice as if it were a separate agreement.

Article 19: Indemnity

1. The buyer shall indemnify user against claims filed by third parties concerning intellectual property rights on material or data provided by the buyer, which shall be used for and during the execution of the agreement.

2. If the buyer provides user with information carriers, electronic files or software etc., the former shall guarantee that said information carriers, electronic files or software are free of viruses and defects.

Article 20: Intellectual Property and Copyrights

1. Without prejudice to the other stipulations of the present general terms and conditions, user shall reserve the rights and authorities to which user is entitled under the Copyright Act.

2. The buyer shall not be allowed to introduce changes to the goods and material provided, unless the nature of the delivered goods and material dictates otherwise or if agreed upon otherwise in writing.

3. The designs, sketches, drawings, films, software and other material or (electronic) files, possibly produced by the user within the framework of the agreement, shall remain user's property, irrespective of the fact whether they have been handed over to the buyer or to third parties, unless agreed upon otherwise in writing.

4. All documents, such as designs, sketches, drawings, films, software, (electronic) files, etc., provided by user, shall be destined to be used by buyer exclusively and must not be reproduced, made public or brought to the notice of third parties by buyer without prior consent from user, unless the nature of the documents provided dictates otherwise.

5. User shall reserve the right to use the knowledge gained due to the execution of the work for other purposes, in so far no confidential information shall be brought to the notice of third parties when doing so.

Article 21: Secrecy

1. Each party shall treat professional information and experience gained from the other party as strictly confidential. Parties shall ensure that data of other party will not be accessible to third parties. Upon the termination of the Agreement each party shall return the documentation received from the other. Each party shall impose an obligation to secrecy upon its employees and other individuals engaged in the performance of the obligations under this Agreement. This provision shall survive the termination of the agreements.

2. Paragraph 1 shall not apply to information:

  1. acquired from a third party with the right to divulge the same;
  2. required to be disclosed by judicial or administrative process or by other requirements of law or any binding judgement or order;
  3. reasonably required to be disclosed in confidence to the professional advisers of either Party for use in connection with the transactions and matters contemplated by this Agreement or related thereto;
  4. which is or becomes within the public knowledge (otherwise than through the default of the disclosing Party concerned).

3. If a statutory provision or a judicial decision compels user to convey confidential information to third parties designated by law or by the court and user cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, user shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the agreement on the ground of any damage resulting from said circumstance.

Article 22: Non-employment of the opposite party's personnel

1. Throughout the duration of the agreement and for one year following termination thereof, buyer shall not in any way, hire or employ in any other way, be it directly or indirectly, staff of user or of enterprises whom user has engaged to execute the present agreement and who are (were) involved in the execution of the agreement, without prior proper businesslike consultation on this matter, all this in accordance with the requirements of reasonableness and fairness.

Article 23: Prescription

1. Buyer is held to examine the delivered goods in accordance with article 7. Buyer is held to communicate visible shortcomings and non-visible shortcomings in accordance with article 7. Without such notification in accordance with article 7 all possible entitlement to indemnity shall cease.

2. Any claims by virtue of the agreement which are related to and/or result from this agreement will lapse and shall become void by prescription by the simple lapse of twelve months unless the claim has been brought before the competent court in accordance with Article 25.

3. The period of 12 months will commence on the day after the day on which the good and/or services were delivered, should have been delivered or, in the absence of that, as of the day after the day on which the claim came into being.

Article 24: Third Party Clause

The provisions contained herein regarding exclusion and limitation of liability as well as regarding the user's indemnity and termination/prescription of the right of action shall also apply to and in behalf of the user's employees and of third parties he has engaged in any manner as well as of their employees.

Article 25: Disputes

1. Any and all disputes between user and the buyer will be heard by the competent court in Amsterdam, the Netherlands, to the exclusion of any other court. However, User will remain entitled to submit the dispute to the court that would have been competent pursuant to the rules of law.

2. Parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultations.

Article 26: Applicable Law

Any agreement and legal relation between user and the buyer will be governed by the law of the Netherlands. The Vienna Sales Convention shall be explicitly excluded.

Article 27: Changes to the Terms and Conditions, interpretation and their location

1. The English version of these general terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.

2. The most recently filed version shall always apply, or, as the case may be, the version valid at the time the agreement was concluded.

Article 28: Final Provision

The present General Conditions, which were filed in the Office of the District Court of Amsterdam as well as in the office of the Chamber of Commerce of Amsterdam on September 13, 2004 shall be cited as the "General Terms and Conditions of WRT".