GENERAL CONDITIONS OF HANDELSONDERNEMING J. KELDERS B.V. Version 1 NOVEMBER 2018
Counterparty: the natural person or legal entity with whom the private company Handelsonderneming J. Kelders B.V., hereinafter to be referred to as: "Kelders", has concluded an (or multiple) agreement(s).
Article 1 Applicability
- These general conditions apply to all quotes made by Kelders, agreements concluded with Kelders and to assignments issued to Kelders, along with all rights and obligations arising from these.
- Agreements and commitments or changes and/or supplements to these conditions shall apply only if Kelders has confirmed these in writing to the counterparty and shall apply only to the particular agreement.
- Kelders expressly rejects any general conditions declared applicable by the counterparty and Kelders shall therefore never have accepted these.
Article 2 Quotes, offers and assignments
- Unless expressly stated otherwise, all quotes issued by or on behalf of Kelders are on a no-obligation basis and are not binding and can always be rescinded as long as the assignments issued on those quotes have been accepted by Kelders.
- In the event that agreements with Kelders are of a recurring nature, these are binding only for the period of time established by Kelders.
- The information included in the quotes such as prices, brochures,
quality designations and quantities have been determined by Kelders as accurately as possible; however, the counterparty cannot derive any rights from that information.
- Product samples may exhibit small deviations in colour and structure as compared with the products delivered.
- Offers from Kelders are always at no obligation and can
be accepted only without deviations. An offer shall be considered in any case to have been rejected if it is not accepted within 1 month.
- Kelders is entitled at any time to determine that the items and goods to be delivered
shall be delivered only in certain minimum quantities.
- Kelders is entitled to change the nature and composition of the goods that it is to deliver as long as the same quality is offered, also without notifying the counterparty.
Article 3 Agreement
- An agreement is concluded by means of written acceptance or by a written confirmation by Kelders of the assignment issued –
- either directly or via representatives or other intermediaries.
- All additional works and deliveries of any nature whatsoever remain the responsibility of the counterparty and shall be considered a change in the assignment. The implementation of the intended additional works and/or deliveries can be demanded of Kelders only if a separate written agreement for this is concluded between parties beforehand.
Article 4 Kelders' obligations
Information provided for purposes of the agreement shall be used solely in the context of the offer or assignment. Kelders shall not use this information for other purposes.
Article 5 Counterparty's obligations
- Counterparty is obliged to provide all cooperation to Kelders and to have all cooperation provided, such that an optimal delivery/implementation of the agreement can be supported.
- Furthermore, counterparty is obliged to indemnify Kelders against all third-party claims in the event that counterparty has not fully met its obligations pursuant to this agreement; in that case, counterparty can make no claim for compensation of damage by Kelders.
Article 6 Delivery/purchase & risk
- The assignment shall be performed by Kelders within the agreed deadline unless Kelders should turn out to be hindered in ensuring timely compliance due to an un-attributable shortcoming (force majeure). Kelders is not obliged to compensate for damage in the event of exceeding the delivery deadline unless there is a question of an attributable shortcoming on the part of Kelders.
- Delivery times given by Kelders to the counterparty are solely of an indicative nature and shall never be able to be considered a fatal deadline, unless expressly agreed otherwise. In the event of non-timely delivery, Kelders must always be notified of breach in writing.
- Exceeding the agreed delivery time then entitles the counterparty to call for the dissolution of the agreement only after it has first notified Kelders in writing and by means of registered mail that Kelders is in breach, and thereby granting Kelders a time period of four weeks to satisfy its obligation of delivery nonetheless (notification of default) and only if Kelders, after this four-week term, has still been unable to provide for delivery.
- Kelders' being bound to an agreed delivery deadline lapses if the counterparty desires a change of the specifications.
- The counterparty is obliged to accept delivery of the (partially) performed order immediately after its completion or, respectively, after its being made available to counterparty, unless parties have expressly agreed otherwise in writing. The counterparty shall also be in breach, also without having been served notice in this regard, if he does not pick up the goods to be delivered upon Kelders' first request or, if delivery to the counterparty's address has been agreed, if the counterparty refuses to accept delivery of the goods.
- Should Kelders be required to store the order in its entirety or partially as a result of non-timely acceptance, then storage costs shall be charged to the counterparty.
- From the moment of conclusion of the agreement, the purchased goods are at the risk of the counterparty. In this regard, the transport – including loading and unloading of the goods to be delivered – are at the counterparty's risk and expense.
- If parties have agreed to free delivery, then the cheapest method of sending/delivery shall always be used unless parties agree otherwise beforehand. For any other method of shipment, the additional costs shall be charged to the counterparty.
- If parties have agreed to free delivery, then delivery shall be made to the ground floor, first door of the counterparty's home/business address.
- If parties have agreed to free delivery, then delivery shall take place no further than the point to which the vehicle can drive over properly manoeuvrable (paved) grounds. Delivery shall always take place next to the vehicle, while the counterparty is obliged to accept the items at that location. Both parties shall jointly ensure the unloading of the vehicle.
Article 7 Warranty and complaints
- Warranty shall be considered to apply only if this has been expressly agreed in writing. The warranty comprises repair or replacement of the good but, however, shall never exceed the obligation of Kelders' supplier. Only Kelders shall decide between repair or replacement.
- A warranty claim shall be honoured only if the item is used in accordance with the purpose for which the item is considered to serve.
- The warranty does not apply if: (a) the purchaser or someone on behalf of the counterparty has made changes without permission from Kelders; (b) there are errors and/or defects resulting from unskilled or careless use or activity; (c) normal wear is involved.
- No warranty whatsoever is ever given on second-hand items. Any agreed warrantees need not be processed if the counterparty has not fully complied with its obligations.
- Complaints on the part of the counterparty concerning invoices and/or items delivered by or on behalf of Kelders must be made within three working days. After the passage of this deadline, the counterparty will be considered to have approved the invoice and/or the goods received and shall be considered to have received all accessories and a users manual. Kelders will then no longer process complaints.
- The counterparty is not entitled to lodge a complaint on grounds of the fact that items delivered by Kelders do not possess the characteristics required for the use intended by counterparty, unless counterparty notifies Kelders in writing prior to or upon the conclusion of the agreement that the items should possess these characteristics and Kelders has guaranteed these characteristics in writing.
- Kelders' performance between parties qualifies in any case as proper if the counterparty has taken the delivered good or a portion of the delivered good into use, has processed or included it, delivered it to third parties or, respectively, has had it taken into use by third parties, has had it processed or included or had it delivered to third parties, unless the purchaser has paid due observance to the provision in the second paragraph of this article.
- With respect to the goods delivered to the counterparty, the acceptance of goods from the transporter – without a note on the bill of lading or receipt - qualifies as evidence that the goods were in good condition.
- If Kelders finds the complaint substantiated, then Kelders is obligated solely to replace the improper items without the counterparty's also being entitled to claim any compensation whatsoever. If replacement of the particular item is not possible, then a comparable item can be offered to the counterparty and/or compensation of the purchase amount for purposes of satisfying the case of the improper item.
- The counterparty's obligation of payment is not suspended because of a complaint, nor is the counterparty discharged from its obligation to pay.
Article 8 Prices
- All prices in agreements and/or quotes made by Kelders are:
- based on delivery from the company, warehouse or other storage place;
- exclusive of VAT, import duties, fees and rights unless stated or agreed otherwise;
- exclusive of the cost of packaging, loading and unloading, transport and insurance;
- stated in EURO.
- If parties do not agree to a price, but parties have concluded one or multiple agreements in the year prior to the agreement with equivalent or nearly equivalent content, then the price will be calculated based on the production methods and calculation rates used therein.
- If no price is agreed between parties beyond the application of the provision in the previous paragraph of this article, and if a price is issued or if the agreed price can be changed pursuant to these conditions only by means of estimation, then the price or, respectively, the change, will be determined to be an amount considered reasonable in the sector.
Article 9 Price changes
Agreed prices are binding unless external circumstances – such as increases in increase of duties/excise charges, changes in currency parity or exchange rate changes, suppliers' pricing, insurance premiums, etc. - cause a price increase to be applied. If such is the case, then the price increases applied by Kelders are binding to the counterparty. Parts and changes requiring extra processing that are indicated by the counterparty shall also constitute grounds for a corresponding price increase.
Article 10 Payment
- Payment shall be made in cash upon delivery or by means of deposit or transfer to a bank or giro account designated by Kelders within 14 days after the date of invoice or delivery – without any discount or deduction – unless expressly agreed otherwise and confirmed in writing by Kelders.
- Kelders retains the right to request surety in the form of a prepayment, deposit and/or bank guarantee. Kelders is free to settle any costs or damages against this prepayment, deposit and/or bank guarantee.
- In the event of insufficiently demonstrated creditworthiness, proven breach or repeated breach, Kelders is free to require 100% payment beforehand before the goods to be delivered are sent or issued.
- The payment date will be considered to be the currency date indicated on Kelders' bank/giro statements.
- Assignments requiring a long processing time, or partial delivery, which is understood to include the delivery of parts of a composite order, can be invoiced in the meantime. Furthermore, Kelders can expect payment in instalments.
- The counterparty cannot make any appeal to compensation, discount or deduction; the counterparty is never permitted to suspend payment in connection with claimed impropriety or defects in the items sold/assignments performed by Kelders.
- All payments made by the counterparty are intended primarily for payment of any interest and collection costs (incurred by Kelders). After settlement of these costs, the payments are then intended for payment of the oldest unpaid invoices, even if the counterparty states that the payment relates to a later invoice.
Article 11 Non-timely payment
- In the event of non-timely payment of any amount owed by the counterparty to Kelders, the counterparty is in breach and in default simply by virtue of the fact of non-timely payment, without the requirement on the part of Kelders for any summons and/or notification of default.
- Therefore, the counterparty owes interest on the unpaid amount starting from the moment of the amount's being due and payable, i.e. 1% per (portion of a) month over the (yet) unpaid amount.
- In the event of non-timely payment of an amount owed by the counterparty, all other amounts owed are suddenly and immediately due and payable while, in that case, Kelders is entitled to suspend all further agreements, either unperformed or not completely performed, or to dissolve these, without prejudice to Kelders' right to claim compensation of the damage and forgone profits.
- All of the costs of judicial and extrajudicial measures that Kelders must take against the counterparty in the event of non-compliance with the counterparty's obligation of payment shall be charged to the counterparty.
- With respect to the extrajudicial measures, Kelders shall act in accordance with the scale of the act concerning compensation for extrajudicial collection costs, which went into effect as of 1 July 2012. If the actually incurred collection costs exceed the scale in accordance with the aforementioned act, then the counterparty owes the actual collection costs. Actual collection costs also include enforcement measures prior to legal proceedings, including but not limited to sequestration.
Article 12 Retention of ownership
- As long as the counterparty has not met or has not fully met its obligations of payment – including the obligation for payment of any other deliveries to the counterparty – Kelders remains the owner of the items delivered.
- Up until the moment of complete payment as referred to under item 1 of this article, Kelders has the irrevocable authority to remove the items and keep these removed – wherever these are located – until all obligations on the part of the counterparty to Kelders have been satisfied.
- The counterparty must provide its cooperation with this on pain of a penalty of 500 EURO for each day that the counterparty is/remains in default, if Kelders expressly claims this. This penalty is not susceptible to judicial mitigation.
- The counterparty may not dispose of or make available to third parties any delivered items for which the applicable purchase price has not been paid or not been completely paid, under any designation whatsoever, nor may these items be encumbered with a right of surety.
- In the event of loss, theft, seizure, etc. of the particular items for which the purchase price is not fully paid, the counterparty is obliged to notify Kelders within 24 hours after the discovery of this.
Article 13 Right of retention
If Kelders is in possession of items from the counterparty, then Kelders is entitled to suspend its obligations to give up the particular items until payment has been made of whatever the counterparty owes to Kelders.
Article 14 Liability
- Second-hand items and lot goods are sold as-is, which means that Kelders cannot be held liable for any defects in these items. Nor is Kelders liable for any consequences (bodily injury, material or immaterial damages, etc.) of these defects. Kelders provides no form of guarantee whatsoever on products purchased.
- Furthermore, Kelders also excludes every other form of
- to the extent that this is not regulated by law.
- for damage arising from or caused by the use of the item
delivered or by its unsuitability for the purpose for which the counterparty has purchased it.
- for operational damage, consequential damage, loss of sales or decreased goodwill.
- To the extent that Kelders is liable pursuant to the law or general rules of law of public order and good faith, this liability is limited to the amount that Kelders' insurance company will disburse in that particular case.
- Kelders is not liable for damages of any nature whatsoever caused by or after the fact that counterparty has used, processed or included the manufactured items after delivery or, respectively, has had this done by a third party or has had them delivered by a third party.
- Furthermore, Kelders is not liable for damage in the form of operational damage, consequential damage, loss of sales or decrease goodwill in the company or profession of the counterparty.
- Kelders is in no instance liable for damages and/or penalties that occur as a consequence of the purchaser's or third party's export of the items (or of having these parties do so), particularly not if the items do not comply with the legal and other standards of the country to which the export takes place.
- In the event of export, Kelders duly observes both the external and supplemental sanctions law and regulations. Kelders shall comply with the most recent sanctions law and regulations and the most recent list of countries, organisations or persons published on the website of the (Dutch) federal government and OFAC. In that context, Kelders can request the issuance of end-user statements and/or Kelders can refuse deliveries.
- Kelders is never liable toward the counterparty for third-party claims of costs, damages and interests arising as a consequence of deeds or inactions of persons employed by Kelders or by items which are owned by or used by Kelders, or items which are transported and/or sold by Kelders, and the counterparty is obliged to indemnify Kelders against all such claims.
Article 15 Force majeure
- In the event of force majeure on the part of Kelders and/or its suppliers/manufacturer, Kelders is entitled, at its option, to consider the agreement dissolved without judicial intervention or to suspend compliance with the agreement until the conditions of force majeure have ended and compliance is possible within reason, without Kelders being obliged to compensate the counterparty for any damages.
- Force majeure is said to exist if the cause of the non-(timely) compliance cannot be attributed to Kelders (and/or to its supplier/manufacturer). This can be considered the case if the hindrance cannot be attributed to a fault of Kelders (and/or its supplier/manufacturer), nor even if this should be charged to Kelders pursuant to the law or social norms.
- Force majeure is understood in any case to mean any unforeseen circumstance which makes normal implementation of the agreement impossible, including fire, illness, strikes, work stoppages, labour shortages, delays at suppliers and other disruptions to operation and/or transport.
Article 16 Cancellation
- If and after an assignment is given to Kelders and Kelders has accepted this, or if an agreement is concluded with Kelders, then this can be changed or cancelled only with Kelders' permission and under conditions to be set by Kelders.
- The counterparty must inform Kelders in writing concerning the desired change and/or cancellation.
- In the event of change/cancellation, the counterparty is obliged to compensate Kelders for any loss or forgone profit incurred by Kelders - and this within one week after the change/cancellation – unless agreed otherwise.
- If the counterparty has not paid the compensation stated under 3 in this article, then Kelders is entitled to notify the counterparty in writing that it expects compliance with the agreement concluded. In that case, the counterparty can no longer make a claim based on the cancellation.
- The obligation to payment of the compensation of damages is a debt in the sense of article 11 of these General Conditions, for which a moment of payment has been expressly agreed.
- The authority to cancel lapses if the purchased item has been delivered to the counterparty.
Article 17 Limitation and expiration
In derogation from the legal provisions concerning limitations, a legal claim to compensation of damages is subject to the statute of limitations for the counterparty as a result of the general conditions by the passage of 12 months after the start of the day following the day on which the damage became known or should have become known. Any claim against Kelders lapses if Kelders is not subpoenaed within 12 months after receipt of the claim in question.
Article 18 Intellectual property
Kelders retains all intellectual property rights related to the items sold. No images, models, samples, etc. provided by Kelders may be copied or reproduced or made available to third parties without Kelders' express written permission and these must be returned upon first request.
Article 19 Dissolution
In the event of force majeure as described in these general conditions of sale, Kelders is entitled to dissolve the agreement, also in the case of bankruptcy or suspension of payments on the part of the counterparty, or if the counterparty evinces shortcomings in its compliance with its obligations toward Kelders, in which cases the counterparty is legally in breach and in default, and in which case Kelders can dissolve the agreement by means of a written notification to the counterparty. Kelders is then entitled to complete compensation of costs, damages, interest and forgone profits.
Article 20 Change in the conditions
Kelders retains the right to change or supplement these conditions. Changes apply, also with respect to the currently concluded agreements, with due observance of a time period of 30 days after written notification of the change.
Article 21 Conversion provision
- If a court qualifies a provision of these conditions as being unreasonably cumbersome or as null and void – either partly or completely – or if the provision must be set aside, then this will be considered to be converted into a provision which will not be considered to be unreasonably cumbersome and which will retain its content and intent to the extent possible.
- In the event that a court qualifies a provision of these conditions as being unreasonably cumbersome or as null and void – either partly or completely – or if the provision is to be set aside, and the first paragraph of this article cannot apply, then this is without prejudice to the validity of the remaining provisions of these general
Article 22 Regulation of disputes and applicable law
- Agreements concluded by Kelders under the terms of these conditions are subject solely to Dutch law, also if the performance of a commitment is done wholly or partially abroad and if the party legally involved has its headquarters or domicile in a foreign country.
- Should a dispute arise as a result of an agreement concluded with Kelders, or as a result of these conditions, then this shall be heard before the competent court in the location of Kelders' headquarters unless mandatory law instructs otherwise.
Article 23 Version and registration filingThese general conditions are adopted as of 1 November 2018 and are filed with the Chamber of Commerce in 's-Hertogenbosch. The most recently filed version - in this case the version that was applicable at the time of the formation of the agreement with Kelders – shall always apply.