Article 1. General
1. These terms and conditions apply to every offer, quotation and agreement between kapimex b. V. , hereinafter referred to as: "user", and any other party to which user has declared these terms and conditions applicable, to the extent that these terms and conditions have not been expressly deviated from by the parties in writing.
2. These terms and conditions also apply to agreements with the user, for the execution of which user requires to involve third parties.
3. These general terms and conditions are also written for the user's employees and its management.
4. The applicability of any purchase or other conditions of the other party is expressly rejected.
5. If one or more provisions of these general terms and conditions are at any time wholly or partially void or voidable, the other provisions of these general terms and conditions shall remain fully applicable. Such void or nullified provision will be replaced or deemed to have been replaced by a provision which is deemed to be valid and enforceable and which approaches the purpose of the void or nullified provision as closely as possible and the parties will then implement that provision.
6. If ambiguity exists regarding the interpretation of one or more provisions of these general terms and conditions, then the interpretation must take place "in the spirit" of these provisions.
7. If a situation arises between the parties which is not regulated in these general terms and conditions, then this situation must be assessed in the spirit of these general terms and conditions.
8. If the user does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that the user would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases.
Article 2. Quotations and offers
1. The user's quotations and offers are without obligation, unless the quotation stipulates a deadline for acceptance. An offer or quotation expires if the product to which the offer or quotation relates is no longer available in the meantime.
2. User cannot be held to its quotes or offers if the other party can reasonably understand that the quotes or offers, or any part thereof, contain an obvious mistake or slip of the pen.
3. The prices stated in an offer or quotation are exclusive of vat, other government levies and any costs to be incurred within the scope of the agreement, such as travel and accommodation, shipping and administrative costs, unless otherwise stated.
4. If the acceptance (whether or not on minor points) deviates from the offer or the quotation then the user is not bound by it. The agreement will not be concluded in accordance with this deviating acceptance, unless the user indicates otherwise.
5. A compound quotation does not oblige the user to perform part of the assignment at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.
Article 3. Contract term; delivery terms, performance and modification of agreement
1. The agreement between the user and the other party will be entered into for an indefinite period, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
2. If a term for the completion of certain work or for the delivery of certain goods has been agreed or given, this will never be a deadline. If a term is exceeded, the other party must therefore give the user written notice of default. The user must be offered a reasonable period to still perform the agreement.
3. If the user requires information from the other party for the performance of the agreement, the performance period will not commence until the other party has made this information available to the user correctly and completely.
4. Delivery takes place ex the user's premises. The other party shall be obliged to accept the items at the time they are made available to him. If the other party refuses to take delivery or fails to provide information or instructions necessary for delivery, the user shall be entitled to store the items at the other party's expense and risk.
5. User has the right to have certain work done by third parties.
6. User is entitled to execute the agreement in different phases and invoice the thus executed part separately.
7. If the agreement is performed in phases, the user may suspend the performance of those parts belonging to a subsequent phase until the other party has approved the results of the preceding phase in writing.
8. If during the execution of the agreement it appears that for a proper execution thereof it is necessary to modify or supplement it, the parties will timely and in mutual consultation adjust the agreement. If the nature, scope or content of the agreement, whether or not at the request or indication of the other party, the competent authorities et cetera, is changed and the agreement is thereby changed in qualitative and / or quantitative respect, this may also have consequences for what was originally agreed. As a result, the amount originally agreed upon may be increased or decreased. User will give as much advance notice as possible. An amendment to the agreement may also change the originally specified period of performance. The other party accepts the possibility of amending the agreement, including the change in price and term of execution.
9. If the agreement is amended, including a supplement, the user will be entitled to perform it only after the competent person within the user has agreed to it and the other party has agreed to the price and other conditions specified for performance, including the time to be determined for performance. Non-performance of the amended agreement or a failure to perform the amended agreement immediately, will not constitute a breach of contract by the user, nor will it be a ground for the other party to terminate the agreement. Without being in default, the user may refuse a request to change the agreement, if this could have consequences in qualitative and / or quantitative respect, for example for the work to be performed or goods to be delivered in that context.
10. If the other party is in default in the proper fulfillment of what he / she is obliged to do towards the user, the other party will be liable for all damage (including costs) on the part of the user caused directly or indirectly as a result.
11. If the user agrees a fixed price with the other party, the user will nevertheless be entitled to increase this price at any time without the other party in that case being entitled to terminate the agreement for breach of contract (ontbinden) for that reason, if the price increase results from a legal power or legal obligation or is caused by an increase in the price of raw materials, wages et cetera or on other grounds that were not reasonably foreseeable at the time the agreement was concluded.
12. If the price increase other than as a result of an amendment to the agreement exceeds 10% and takes place within three months after the conclusion of the agreement, only the other party who is entitled to invoke title 5, section 3 of book 6 of the dutch civil code will be entitled to terminate the agreement for breach of contract (ontbinden) by means of a written statement, unless the user is then still willing to perform the agreement based on what was originally agreed upon, or if the price increase results from a legal power or a legal obligation imposed on the user or if it has been stipulated that the delivery will take place more than three months after the purchase.
Article 4. Suspension, termination for breach of contract (ontbinding) and termination for convenience (opzegging)
1. User is authorized to suspend the fulfillment of the obligations or to terminate the agreement for breach of contract, if:
2. Furthermore, the user shall be entitled to terminate the agreement for breach of contract if circumstances arise of such a nature that performance of the agreement is impossible or if other circumstances arise of such a nature that the user cannot reasonably be required to maintain the agreement unaltered.
3. If the agreement is terminated for breach of contract, the user's claims against the other party shall be immediately due and payable. If the user suspends fulfilment of its obligations, it shall retain its claims under the law and the agreement.
4. If the user proceeds with suspension or termination for breach of contract, it will in no way be obliged to compensate for damage and costs caused by this in any way.
5. If the termination for breach of contract is attributable to the other party, the user will be entitled to compensation for the damage, including the costs, incurred directly and indirectly as a result.
6. If the other party fails to fulfil its obligations arising from the agreement and this failure to fulfil its obligations justifies termination for breach of contract, the user will be entitled to terminate the agreement for breach of contract immediately and with immediate effect without any obligation on its part to pay any compensation or indemnification, whereas the other party will be obliged to pay compensation or indemnification on account of default.
7. If the user terminates the agreement for convenience (opzeggen), the user will, in consultation with the other party, arrange for the transfer of any work still to be performed to third parties. This unless the other party can be blamed for the termination for convenience. If the transfer of the work entails additional costs for the user, these will be charged to the other party. The other party will be obliged to pay these costs within the period stated for that purpose, unless the user indicates otherwise.
8. In case of liquidation, (application for) suspension of payments or bankruptcy, asset seizure - if and to the extent that the asset seizure has not been lifted / cancelled within three months -, debt rescheduling or another circumstance as a result of which the other party can no longer dispose freely of its assets, the user will be free to terminate the agreement for convenience (opzeggen) immediately and with immediate effect, without any obligation on its part to pay any compensation or indemnification. The user's claims against the other party will in that case be immediately due and payable.
9. If the other party fully or partially cancels an order that has been placed, the items ordered or prepared for it, plus any supply and delivery costs thereof and the working time reserved for the execution of the agreement, will be charged in full to the other party. The other party will be obliged to pay these costs to the user.
Article 5. Force majeure
1. The user will not be obliged to fulfill any obligation towards the other party if it is prevented from doing so as a result of a circumstance that is not due to any fault on its part and for which it cannot be held accountable by virtue of the law, a legal act or generally accepted practice.
2. In these general terms and conditions force majeure is defined, in addition to its definition in the law and jurisprudence, as all external causes, foreseen or unforeseen, over which the user cannot exercise any control, but which prevent the user from being able to meet his obligations, including but not limited to transport problems, export limitations or bans, lack of raw materials, delay in delivery by a supplier or subcontractor, war, civil war, insurrection, fire, flood, epidemic, pandemic, restrictive government measures, freight embargo, non-availability of a required permit and/or license, non-compliance or force majeure by a supplier or subcontractor and strikes at the user's company or third parties. The user shall also be entitled to invoke force majeure if the circumstance preventing (further) fulfillment of the agreement occurs after the user should have fulfilled its obligation.
3. User may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than one month, each of the parties shall be entitled to terminate the agreement for breach of contract (ontbinden) without any obligation to compensate the other party for damages.
4. Insofar as the user has already partially fulfilled its obligations under the agreement at the time of the occurrence of force majeure or will be able to fulfil them, and independent value can be attributed to the part already fulfilled or to the part to be fulfilled respectively, the user will be entitled to invoice the part already fulfilled or to be fulfilled respectively separately. The other party will be obliged to pay this invoice as if it were a separate agreement.
Article 6. Payment and collection costs.
1. Payment must be made within 14 days of the invoice date, in a manner indicated by the user in the currency invoiced, unless otherwise indicated in writing by the user. User is entitled to invoice periodically.
2. If the other party fails to pay an invoice on time, the other party will be in default by operation of law. The other party will then owe compound interest of 1% per month, unless the legal interest rate is higher, in which case the legal interest rate is due. The interest on the amount due and payable will be calculated from the moment the other party is in default until the moment of payment of the full amount due.
3. The user will be entitled to deduct the payments made by the other party from the collection costs first, then from the interest that has fallen due and finally from the principal sum and the current interest.
4. The user may, without thereby being in default, refuse a payment offer if the other party indicates a different order for the allocation of payment. User may refuse full repayment of the principal sum, if the accrued interest and collection costs are not also paid.
5. The other party will never be entitled to set off any amounts owed to the user.
6. Complaints with regard to the amount of an invoice do not suspend the payment obligation. The other party who is not entitled
to invoke section 6.5.3 (articles 231 to 247 of book 6 of the dutch civil code) is also not entitled to suspend payment of an invoice for any other reason.
7. If the other party is in default in the (timely) fulfillment of its obligations, all reasonable costs to obtain satisfaction out of court shall be borne by the other party. The extrajudicial costs owed by the other party to the user amount to at least 15% of the amount left unpaid by the other party. However, if the user has incurred higher costs for collection that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the other party. The other party will also owe interest on the collection costs owed.
Article 7. Retention of title
1. All items delivered by the user under any agreement remain the user's property until the other party has paid the user all of users invoices, as well as any interest due thereon, in accordance with the agreements to deliver items.
2. Items delivered by the user, which are subject to retention of title pursuant to paragraph 1, may not and may not be resold or used as a means of payment by the other party. The other party cannot and may not pledge or encumber in any other way the items subject to retention of title. This provision has effect under property law.
3. The other party must always do everything that can reasonably be expected of him to secure the user's property rights.
4. If third parties seize the items delivered under retention of title or wish to establish or assert rights to them, the other party will be obliged to inform the user of this immediately.
5. As long as the ownership of the delivered items remains with the user, the other party shall keep the delivered items separated from other items and clearly identified as the user's property within its company.
6. The other party undertakes to insure and keep insured the items delivered under retention of title against fire, explosion and water damage as well as theft and to make the policy of this insurance available for inspection by the user on demand. In the event of any insurance payment, the user will be entitled to this money. To the extent necessary, the other party undertakes vis-a-vis the user to cooperate with everything that may be necessary or desirable in that context.
7. In the event that the user wishes to exercise its property rights referred to in this article, the other party gives unconditional and irrevocable permission in advance to the user and third parties to be designated by the user to enter all those places where the user's property is located and to take back those items. All costs incurred by the user for taking back the items will be at the other party's expense.
Article 8. Warranties, investigations and complaints, limitation period
1. The goods to be delivered by the user meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in the event of normal use in the netherlands. The guarantee mentioned in this article applies to items destined for use within the netherlands. In the event of use outside the netherlands, the other party itself must verify whether they are suitable for use there and meet the conditions set for them. User may in that case set other guarantee and other conditions with respect to the goods to be delivered or work to be performed.
2. The guarantee mentioned in paragraph 1 of this article applies for a period of six months after delivery, unless the nature of the delivered goods dictates otherwise or the parties have agreed otherwise. If the guarantee provided by the user concerns a good produced by a third party, the guarantee is limited to that provided by the producer of the good, unless otherwise stated.
3. Any form of guarantee will lapse if a defect has arisen as a result of or arising from injudicious or improper use thereof or use after the expiration date, improper storage or maintenance by the other party and/or third parties when, without the user's written consent, the other party or third parties have made changes or tried to make changes to the item, attached other items to it that should not have been attached to it or if they have been processed or treated in a manner other than prescribed. Nor will the other party be entitled to any guarantee if the defect has arisen due to or as a result of circumstances beyond the user's control, including weather conditions (such as, for example, but not limited to extreme rainfall or temperatures), etc.
4. The other party will be obliged to examine the delivered goods, or have them examined, immediately at the time that the goods are made available to him / her or the work in question has been carried out respectively. The other party must examine whether the quality and/or quantity of the goods delivered corresponds to what has been agreed and meets the requirements that the parties have agreed in this respect. Any visible defects must be reported to the user in writing within seven days of delivery. Any non-visible defects must be reported to the user in writing immediately, but in any case at the latest within fourteen days after their discovery. The report must contain as detailed a description as possible of the defect, so that the user is able to respond adequately. The other party must give the user the opportunity to investigate a complaint (or have it investigated).
5. If the other party complains in time, this will not suspend his / her payment obligation. The other party will in that case also remain obliged to take receipt of and pay for the other items ordered.
6. If a defect is reported later, the other party will no longer be entitled to repair, replacement or compensation.
7. If it has been established that an item is defective and a complaint about it has been submitted in time, the user will, at the other party's discretion, replace the defective item within a reasonable term after receiving it back or, if returning the item is not reasonably possible, after receiving a written notice of the defect by the other party, or ensure its repair or pay the other party compensation for it. In the event of replacement, the other party will be obliged to return the replaced item to the user and transfer ownership thereof to the user, unless the user indicates otherwise.
8. If it is established that a complaint is unfounded, the costs incurred as a result, including the investigation costs on the part of the user, will be borne in full by the other party.
9. After expiry of the guarantee period, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to and payable by the other party.
10. Notwithstanding the legal limitation periods, the limitation period for all claims and defenses against the user and the third parties involved by the user in the performance of an agreement is one year.
Article 9. Liability
1. If user should be liable, then this liability is limited to what is regulated in this provision.
2. User is not liable for damage, of whatever nature, caused because the user has relied on incorrect and / or incomplete information provided by or on behalf of the other party.
3. If the user should be liable for any damage, its liability will be limited to a maximum of the invoice value of the order, at least to that part of the order to which the liability relates.
4. The user's liability is always limited to the amount paid by its insurer if appropriate.
5. User shall only be liable for direct damage. Direct damage will be deemed to be exclusively the reasonable costs incurred to determine the cause and scope of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to have the user's defective performance comply with the agreement, insofar as they can be attributed to the user, and reasonable costs incurred to prevent or limit damage, insofar as the other party demonstrates that these costs have resulted in limiting direct damage as referred to in these general terms and conditions.
6. The user will never be liable for indirect damage, including consequential damage, loss of profit, loss of turnover, missed savings, damage due to business stagnation and (other) damage caused by delay.
7. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of the user or his managerial subordinates.
Article 10. Transfer of risk
1. The risk of loss, damage or depreciation shall pass to the other party at the moment when goods are brought under the other party's control.
Article 11. Indemnification
1. The other party indemnifies the user against any claims by third parties, who suffer damage in connection with the performance of the agreement and whose cause is attributable to parties other than the user.
2. If the user should be held liable by third parties for that reason, the other party will be obliged to assist the user both extrajudicially and judicially and immediately do all that may be expected of him / her in that case. Should the other party fail to take adequate measures, the user will be entitled to do so itself without notice of default. All costs and damages on the part of the user and third parties as a result will be entirely at the other party's expense and risk.
Article 12. Intellectual property
1. User reserves the rights and powers to which it is entitled under the copyright act and other intellectual laws and regulations. User has the right to use the knowledge gained by the execution of an agreement for other purposes, to the extent that no strictly confidential information of the other party is brought to the knowledge of third parties.
Article 13. Applicable law and disputes
1. Dutch law will apply exclusively to all legal relationships to which the user is a party, even if an obligation is fully or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the vienna sales convention is excluded.
2. The court in the user's place of business has exclusive jurisdiction to settle disputes, unless the law imperatively prescribes otherwise. Nevertheless, the user is entitled to submit the dispute to the court with jurisdiction according to the law.
Article 14. Location and modification of terms and conditions
1. The version valid at the time the legal relationship with the user was established will apply.
2. The dutch text of the general terms and conditions is always decisive for its interpretation.