GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF KUMA II B.V. OF WAARDENBURG
Article 1 Definitions
In these general terms and conditions, the following terms are understood to mean:
- Kuma: the private limited liability company incorporated under Dutch law, Kuma II B.V., as the user of these general terms and conditions and as producer/supplier of products or as the provider of services (carrying out repairs).
- Client: the natural person, legal person, or persons acting jointly (be they legal persons or not), including legal successor(s), who has/have commissioned Kuma to supply products and/or to carry out repairs, or have requested a quotation for these.
- Contract: the contract entered into by Kuma and the Client for the supply of products and/or for carrying out repairs.
Article 2 Applicability of these general terms and conditions
2.1 These general terms and conditions apply to all quotations that Kuma submits and to all contracts between Kuma and the Client.
2.2 If these terms and conditions apply to a contract, they also apply to contracts arising from that contract.
2.3 These terms and conditions also apply to all contracts between Kuma and the Client for which third parties have to be involved for their full or partial execution.
2.4 The Client who has been contracted under these terms and conditions agrees with the applicability of these terms and conditions to any later contracts, unless the parties have explicitly agreed to depart from these terms and conditions.
2.5 Deviations from these terms and conditions or additions to them are only binding for Kuma if they have been agreed in writing. The Client is not entitled to appeal to its advantage in the absence of a written confirmation.
2.6 Kuma only accepts the applicability of the general terms and conditions of contract partners and/or third parties if this is explicitly agreed in writing. Any general terms and conditions of contract partner and/or third parties only apply to the contract in question.
2.7 If these terms and conditions have been translated into another language, the interpretation from the Dutch version remains the guiding principle for whatever the parties have intended to agree to.
Article 3 Quotations, creation and modification of contracts
3.1 Quotations are dated and are not binding, unless expressly stated otherwise.
3.2 The prices in the quotations are excluding VAT, unless stated otherwise.
3.3 A contract is created when the Client orders Kuma to supply products or to carry out a repair, followed by Kuma’s acceptance of this order, whether or not this is done on the basis of a quotation provided by Kuma. Kuma’s acceptance may take place tacitly.
3.4 If the delivery order is given to Kuma verbally, and Kuma has accepted the order, the details in Kuma’s administration are considered to determine the correct content of the contract, unless the Client can furnish proof to the contrary.
3.5 Amendments in a contract are only binding for Kuma provided Kuma confirms these in writing or by e-mail to the Client. The Client is not entitled to appeal to its advantage in the absence of such a written confirmation.
Article 4 Prices
4.1 Unless otherwise agreed, all prices ex factory and/or stock are excluding the costs of packaging, loading and unloading, transport and insurance.
4.2 All prices are excluding VAT and any other applicable government levies. The prices are based on the price levels of raw materials, labour, taxes etc. that were applicable at the time of the creation of the Contract.
4.3 In the event of an increase in any of the cost factors, Kuma is entitled to increase the agreed price accordingly, taking into account existing and relevant statutory provisions.
Article 5 Delivery
5.1 The delivery periods are indicative and are not final deadlines, unless otherwise expressly agreed. In the event of late delivery, the Client must give Kuma notice of default in writing, whereby Kuma must be given a reasonable period to meet its delivery obligations. On no account is the Client entitled to terminate the contract, entirely or in part, on the grounds of delay in delivery.
5.2 Delivery takes place ex factory and/or stock, unless otherwise agreed.
5.3 The products are for Client’s account and risk from the moment of delivery.
5.4 The Client is obliged to check, immediately on delivery, the products supplied, including the packaging, for any shortfalls, damage and so on, or to carry out this check after notification from Kuma that the products are at Client’s disposal.
5.5 The Client must ensure that any shortfalls in and/or damage to the supplied products and packaging which are evident at the time of delivery are specified on the delivery note and/or the transport document(s). In the event that the Client fails to do so, it will be assumed that the Client has approved the supplied products, in which case claims in this respect will no longer be considered.
5.6 If there is no one representing the Client at the time of delivery, the Client must make its claim known to Kuma, in writing or by e-mail and within two days of delivery, if there is a shortfall in and/or damage to the supplied products and packaging. If the Client fails to do so, claims in this respect will no longer be considered.
5.7 If the Client fails to undertake an action for the purposes of cooperating with the delivery of the products, the products will be for the Client’s risk from the point in time that the products are ready for dispatch or collection, regardless of where the products are at that point in time. In this case, the Client will be liable for compensation for storage costs in addition to the purchase price and any other additional costs.
5.8 Kuma is entitled to make partial deliveries, which may then be invoiced separately.
5.9 If the products have not been collected by Client after the delivery time has lapsed, the products will be stored for the Client’s disposal and for the account and risk of the Client.
Article 6 Payment and default on the part of Client
6.1 Payment must take place within 30 days after the date of invoice, without any suspension, reduction or offsetting, unless otherwise agreed.
6.2 If the Client disputes the correctness of a part of an invoice, it is nevertheless obliged to pay that part of the invoice that is not disputed. If and insofar as the disputed portion is still owing, then the original expiry date applies.
6.3. Claims with regard to an invoice must be addressed to Kuma in writing or by e-mail within seven days of receiving the invoice.
6.4 If the payment of the amount owed by the Client is not received by Kuma within the stipulated period, Kuma is entitled to charge the Client interest of 1% a month, counting from the due date, whereby a part of the month is counted as an entire month.
6.5 The Client is in default, without any payment notice or notice of default being required, if it has not paid the amount owed in part or in full by the due date.
6.6 All costs related to the collection of an invoice that has only been paid in part or not at all, as well as the judicial and extrajudicial costs (in accordance with Extrajudicial Collection Costs (Fees) Decree), are for the account of the Client. The judicial costs are also for the account of the Client if these exceed an order for costs of the litigation.
6.7 If the Client does not pay or does not pay on time what is owed to Kuma under this Contract, or if Kuma has well-founded reasons to assume that the Client will not pay Kuma what is owed in good time, Kuma is entitled to require an advance payment or adequate security.
6.8 Kuma is at all times entitled to suspend the delivery of products if the Client does not fulfill its payment obligations related to a contract.
6.9 In the event that the Client cancels a contract, which is understood to include Kuma terminating an agreement on the grounds of an attributable breach on the part of the Client, the Client owes Kuma a fixed compensation of 50% of the amount that the Client would have had to pay Kuma on full execution of the Contract if the products could have already been delivered, and in all other cases 25% of the amount that the Client would have owed Kuma on full execution of the Contract.
6.10 Notwithstanding the provisions of the law, the Client is considered to be in default by operation of law if:
a. it is declared bankrupt;
b. it applies for suspension of payment;
c. any lawful attachment is made against it by a third party, unless the attachment is lifted within a month, whether or not it is for a security;
d. it discontinues business operations.
6.11 In cases a, b and d as referred to in the previous paragraph, Kuma is entitled to immediately terminate the Contract in writing, without notice of default or recourse to the courts; and in the event of c, Kuma is entitled to immediately terminate the Contract in writing after recourse to the courts and then only if the attachment justifies the termination.
Article 7 Force majeure
7.1 The following inter alia will constitute force majeure: war, insurrection, riots, wilful damage, strikes and lockouts, natural disaster, obstructions to supply, malfunctions and so on of machines and/or equipment, unavailability of transport, stagnation in the supply of equipment, lack of raw materials and power, government measures, as well as all circumstances, of any kind whatsoever, as a result of which it is in all reasonableness impossible for Kuma to comply with the Contract in a normal fashion.
7.2 In the cases mentioned in the previous paragraph of this Article, Kuma is entitled, at the sole discretion of Kuma, to cancel the Contract entirely or in part, or to suspend execution of the Contract until such time as the circumstances that have led to force majeure have ceased to exist.
7.3 In the event of force majeure, the Client is obliged to pay Kuma for the deliveries or partial deliveries of products and/or services already made by Kuma.
7.4 In the event of force majeure, Kuma is never obliged to pay compensation, of whatever nature or in whichever form whatsoever, to the Client.
Article 8 Liability and claims
8.1 The Client is obliged to notify Kuma, in writing or by e-mail, of defects in the supplied products within eight days of delivery, or, if the defects could not have been known at the time of delivery, within eight days after the Client discovered or could reasonably have discovered the defects, all of this at the risk of forfeiting all rights.
8.2 If the Client notifies Kuma of complaints regarding the supplied products, the Client must give Kuma the opportunity to investigate the matter.
8.3 The Client must provide proof that the supplied products do not conform with the Contract.
8.4 Kuma only provides a warranty if it is explicitly agreed in writing or it is pursuant to the law.
8.5 Minor deviations in supplied products with regard to different colours and colourfastness, matching of the colour of the product to the plant and so on, the shape, size, design, light density, the holes in the bottom being open or not, firmness and packaging do not constitute reasons for rejecting the products and for this reason do not constitute entitlement to claim for compensation. A few misprints and minor loss of product also do not give entitlement to claim for compensation, if these are within reasonable tolerance standards.
8.6 In the event of a shortcoming in products for which Kuma is accountable, Kuma will take care of repairing the defects or replacing the products for its account, all of which will be at Kuma’s discretion.
8.7 Improper use of products and wear and tear of products do not give entitlement to claim for compensation.
8.8 In the event of repairs of machinery components, Kuma will not issue any warranty of any kind whatsoever in connection with the use and wear and tear of these machinery components. Claims for compensation are ruled out in this case.
8.9 If the Client has given Kuma an order for the supply of a product on the basis of specifications provided by the Client, for instance, for a mould or a cast, the Client is responsible for the correctness of the information that it gives to Kuma. The Client is responsible for loss as a consequence of incorrect information and so on.
8.10 If the Client has given Kuma an order for the supply of a product on the basis of specifications provided by the Client, for instance, for a mould or a cast, the Client is obliged to provide Kuma, immediately on Kuma’s request, with a written statement to the effect that the product meets the specifications stipulated by the Client. If the Client was wrong not to comply with this, the Client indemnifies Kuma for claims due to or in connection with the product supplied by Kuma.
8.11 Liability on the part of Kuma for direct damage through defects in supplied products is always limited to the coverage that its insurance offers, plus any own risk excess that Kuma may have. If Kuma is liable, but Kuma’s insurance does not cover the damage or Kuma’s insurer does not pay out, Kuma’s liability is limited to at most the invoice amount excluding VAT for the supply to which the liability relates, on the understanding that Kuma’s liability is then restricted € 10,000 (in words ten thousand euro). All this without prejudice to the provisions of Article 8.6 of these terms and conditions.
8.12 Kuma is never liable for indirect damage such as trading loss, business interruption loss, loss of orders, and loss of sales and profit.
8.13 Kuma is not liable for claims, directly or indirectly, as a consequence of circumstances beyond its control, as described in Article 7 of these terms and conditions.
8.14 The client indemnifies Kuma for damage that Kuma may suffer as a consequence of claims from third parties in connection with the products supplied by Kuma, including claims from third parties who suffer damage as a consequence of a defect in the products supplied by Kuma that the Client has used, modified or supplied onwards with the addition of or in conjunction with the Client’s own products, unless the Client can prove that the defect was not as a consequence of the use, modification or onward supply as referred to above.
8.15 The Client’s entitlement to compensation does not reduce its payment obligations under the Contract. In the event of liability for compensation on the part of Kuma with respect to the Client, Kuma is entitled to offset this compensation against outstanding invoices.
Article 9 Retention of title
9.1 Kuma remains the owner of the products supplied to the Client as long as the Client has not settled the total amount owed under the Contract.
9.2 As long as Kuma is to be considered the owner of the supplied products, the Client is obliged to ensure that the products are handled carefully, and the Client undertakes not to pledge, transfer or hand over the products.
9.3 If Kuma can enforce property rights in accordance with this article, the Client authorises Kuma to enter the place where the products are located for the purposes of taking them back, if the Client has control over the place where the products are located. The Client is obliged to cooperate when Kuma takes back the products.
9.4 Kuma is entitled to enforce its property rights under this article without any demand letter, notice of default and judicial intervention, or anything else.
9.5 In the event that the Client supplies the products onwards to third parties, the Client is obliged to retain property rights to these products, and to transfer to Kuma in advance its rights to these products which it may have towards third parties, these rights being in pledge or in any other way, for all claims Kuma may have against the Client.
Article 10 Brands and trade name
10.1 The products which Kuma has sold or otherwise marketed are not allowed to be offered or traded citing the brands of which Kuma is the owner and citing Kuma’s trade name, unless Kuma has given its written permission and under the terms and conditions to be stipulated by Kuma at a later date.
10.2 The Client will owe Kuma an immediately payable penalty of € 10,000 (in words ten thousand euro), without prejudicing Kuma’s right to additionally claim full damages, for every act carried out by the Client that is contrary to the provisions of this article.
Article 11 Transfer of rights and obligations
11.1 The Client is not entitled to transfer its rights and obligations under a contract to a third party without Kuma’s prior written permission.
11.2 The Client will owe Kuma an immediately payable penalty of € 5,000 (in words five thousand euro), without prejudicing Kuma’s right to additionally claim full damages, for every act carried out by the Client that is contrary to the provisions of this article.
Article 12 Disputes and choice of forum
12.1 Differences in opinion between Kuma and the Client will be resolved amicably as far as possible.
12.2 If a difference in opinion cannot be resolved amicably, it will be considered to be a dispute.
12.3 The competent court (including the subdistrict court if it is authorised) in the court district where Kuma has its registered offices has exclusive competence over all disputes that may arise between Kuma and the Client in connection with the Contract, even where these are regarded as such by only one of the parties.
Article 13 Applicable law
13.1 All contracts between the parties are governed exclusively by Dutch law.
13.2 Contracts between Kuma and the Client will be deemed to have been concluded in the Netherlands.
These general terms and conditions have been filed 12 December 2014 under number 14/50 with the court registry of the District Court of Gelderland, in Arnhem.