General Terms of Delivery and Payment
GENERAL TERMS OF DELIVERY AND PAYMENT OF KONIJNENBURG BV
Filed at the Registry of the District Court of Amsterdam, The Netherlands, on 15 June 2012, no. 12-55
These General Terms of Delivery and Payment apply to all agreements between KONIJNENBURG and his customers, as well as to all offers, respectively all orders granted by the customer, excluding any generals terms and conditions of the customer of any nature whatsoever. ‘Agreements’ shall explicitly include any long-distance agreement concluded between KONIJNENBURG and the purchaser. Any deviations from the applicability of these general terms and from these general terms themselves shall only bind KONIJNENBURG after these have been confirmed to the purchaser in writing. At the moment of conclusion of a agreement, the customer is considered to agree to the exclusive application of these general terms; this also applies to further orders granted by the purchaser, both orally, by telephone, by e-mail, by fax or granted in any other manner, so a further confirmation in writing by KONIJNENBURG is not required.
1. All offers by KONIJNENBURG, oral as well as in writing, are without obligation and based on the data provided by his customers in the application.
2. All pricelists, brochures and other data accompanying an offer have been provided as accurately as possible. These shall only be binding for KONIJNENBURG if confirmed explicitly in writing. KONIJNENBURG is not obliged to provide detailed data unless agreed to otherwise.
3. All brochures, photographs, pricelists and all accompanying technical data provided in the form of drawings, designs, models, samples and suchlike, that were sent with the offers, shall explicitly remain the intellectual property of KONIJNENBURG. Without the prior permission in writing, the purchaser is explicitly prohibited from copying this information and/or having this information used by third parties and/or selling on this information. The use of this information shall be limited to his own use in the scope of the offer and any order granted.
4. The prices offered shall only apply to the volume offered.
5. If an order was not accepted in writing in advance, e.g. for sales from warehouse stock, the purchase agreement is effected by KONIJNENBURG fully or partially complying with request for delivery by the purchaser, respectively by KONIJNENBURG sending an invoice to a customer requesting delivery.
6. KONIJNENBURG is not liable for any faults in and deviations of images, drawings and statements of measurements and weights, as well as all other specifications in price-lists or advertising material and for special offers and/or order confirmations.
3. The agreement
1. An agreement shall only be concluded at the time that KONIJNENBURG has explicitly accepted, respectively confirmed, the order or any alteration of the order.
2. Any additions and/or alterations effected at a later time, as well as (oral) undertakings by KONIJNENBURG or his representatives, agents or other intermediaries, shall only be binding if KONIJNENBURG has confirmed these in writing by a person thereto authorized.
3. For those deliveries or that work for which, according to their nature and scope, no order confirmation is sent, the invoice shall also be considered an order confirmation, which shall also be considered to reflect the agreement accurately and fully.
4. Any agreement shall be concluded under the resolutive clause that the purchaser proves to be adequately creditworthy for monetary compliance with the agreement.
5. KONIJNENBURG is entitled, when or after concluding the agreement, before proceeding to (further) execution thereof, to demand security from the purchaser for compliance with the payment and other obligations under the agreement.
6. KONIJNENBURG is entitled to engage third parties for a proper execution of the agreement. If possible, KONIJNENBURG shall consult with the customer on this.
7. If the purchaser wishes to amend or annul the agreement, he is obliged to compensate KONIJNENBURG for all damage, including loss of profit and all costs resulting from the amendment or annulment.
4. Force majeure
1. In these terms, ‘Force Majeure’ shall mean all circumstances independent of the will of the parties, respectively unforeseeable by the parties, that result in the purchaser no longer being able to demand, in all reasonableness, compliance with the agreement by KONIJNENBURG. Force majeure shall in any case include: strikes, excessive absenteeism (due to illness) of the staff, transport problems, inadequate supplies of raw materials/spare parts, fire, government measures, including import and export prohibitions, quota restrictions, business disruptions at the supplier(s), as well as breach of contract by the supplier(s), resulting in KONIJNENBURG being unable (any longer) to comply with his obligations towards the purchaser.
2. If, in the opinion of KONIJNENBURG, the force majeure is temporary, KONIJNENBURG shall be entitled to suspend execution of the agreement until such a time that the circumstance providing the force majeure no longer exists.
3. If, in the opinion of KONIJNENBURG, the force majeure situation is permanent, the parties can make arrangements to terminate the agreement and for the consequences thereof. KONIJNENBURG shall not be obliged to offer any damage compensation whatsoever.
4. KONIJNENBURG is entitled to demand payment for the performance in the execution of the agreement concerned before the situation causing force majeure was apparent.
1. Unless there is a binding offer term, each quotation is free of obligation.
2. Unless stated otherwise, the prices are:
Based on the current amount of purchase prices, wages, wage costs, social and government charges, freights, insurance premiums and other costs, applicable at the time of the offer, respectively date of offer;
Based on delivery ‘Ex Works’ (Incoterms) or another destination location indicated by the purchaser, unless agreed to otherwise in writing, and without prejudice to the stipulations in article 6.2;
Exclusive of VAT and other duties;
Stated in Euros.
3. Unless agreed to otherwise, there is a minimal order value of EURO 50.- (fifty) net.
4. In case of increase of one or more of the cost price factors and especially if the exchange rate of the EURO against the foreign currency applicable to the agreement changes, KONIJNENBURG shall be entitled to adapt the order price accordingly.
6. Costs and risks of transport
1. The manner of transport, freight, packaging and suchlike, unless the purchaser has provided further instructions to KONIJNENBURG, shall be determined by KONIJNENBURG in good business practice. Any specific wishes of the purchaser concerning packaging and/or transport, including moving within the business premises, shall only be executed if the purchaser pays for the costs thereof.
2. The transport of goods shall in principle be to the risk of the purchaser.
3. For orders with an invoice value lower than EURO 350.- excl. VAT, KONIJNENBURG is entitled to charge freight and processing costs, unless agreed to otherwise.
7. Delivery and delivery date
1. Unless agreed to otherwise, delivery shall take place Ex Works (Incoterms).
2. The agreed delivery date, respectively term of delivery, shall commence on the day that KONIJNENBURG has all required data and documents at his disposal. The delivery date shall be, without prejudice to the stipulations in article 16, the time that the goods are unloaded (the actual transfer). The Incoterms chosen (latest version) shall apply to all deliveries.
3. The purchaser is obliged to inspect the delivered goods, or, as the case may be, the packaging, within one workday for possible defects (shortcomings), or have this inspection conducted within ten workdays after notice that the goods are available to the purchaser. The purchaser shall report any defects and/or damages found on delivery within 1 (one) workday after delivery to KONIJNENBURG. If the purchaser fails to do so, KONIJNENBURG is entitled not to handle any complaints on the delivery.
4. KONIJNENBURG is entitled to deliver in parts (partial deliveries) that can be invoiced separately. In that case, the purchaser is obliged to pay in accordance with the stipulations in article 14 of these terms, unless agreed to otherwise in writing.
5. If the goods are not taken into possession within 10 (ten) days after the notice of delivery or, in case of on-call contracts, the agreed call-off deadline is not observed by the purchaser, KONIJNENBURG is entitled to invoice the goods concerned, whilst these goods shall, from this time, be stored fully to the account and risk of the purchaser.
6. Agreed delivery times are always indications. If the agreed delivery time is exceeded, the purchaser is entitled to impose a reasonable further delivery date on KONIJNENBURG, by registered mail.
7. Such cases of exceeding the delivery time does not entitle the purchaser to cancel the order or to refuse receipt or payment of the goods, nor does this oblige KONIJNENBURG to pay any compensation to the purchaser, nor to deliver from stock, if the purchase was made Ex Works. A term proportional for the complexity and delivery term of the product shall apply to especially ordered products with a long delivery term, specific applications or required inspections.
8. Guarantee, service and complaints
1. KONIJNENBURG guarantees delivered new products for the period of 3 (three) months after delivery or shipping, i.e. that KONIJNENBURG shall repair free of charge, respectively replace (to the discretion of KONIJNENBURG) all parts to which any defect can occur due to faulty construction, provided that such a defect is reported in writing forthwith after the discovery thereof and in any case within the terms stipulated in article 8, and, if KONIJNENBURG so wishes, the part is sent to them immediately, carriage paid.
2. The aforementioned guarantee concerning the repairs or the free delivery of a new part does not include any charges on the part to be provided for free, nor customs duties or turnover tax; these shall be to the account of the purchaser.
3. Any defects to delivered goods, solely to the discretion of KONIJNENBURG, can only be repaired, respectively replaced by a new delivery if the defects, in the opinion of KONIJNENBURG or the manufacturer, are attributable to construction faults, the materials used or the execution, rendering the goods unusable for the customer for the purpose for which these were intended. Parts that are susceptible to wear and tear, such as tread surfaces of wheels and bearings, are not covered by this guarantee.
4. If the purchaser has not submitted a complaint on any defects in writing to KONIJNENBURG within 7 (seven) workdays after delivery, respectively completion, the purchaser is assumed to have accepted the goods. If the purchaser submits a complaint, he shall hold the goods in unaltered condition, until KONIJNENBURG is able to investigate the complaints.
5. KONIJNENBURG shall only accept return shipments, if:
a) KONIJNENBURG agreed in advance in writing;
b) The shipment is done carriage paid to KONIJNENBURG, unless agreed to otherwise;
c) This concerns storage or standard materials;
d) Delivery has taken place no longer than 6 (six) weeks ago, unless agreed to otherwise.
6. If KONIJNENBURG has to conduct repairs or an investigation outside his own company, KONIJNENBURG is entitled to charge the traveling and accommodation expenses to the purchaser, as well as any possible transport costs and the costs of the testing equipment to be used. In principle, investigation and repairs shall take place within our company, during normal business hours. If it is shown that the goods offered for repairs show no defects, all costs incurred shall be to the account of the customer, whereby a minimum amount of EURO 60.- (sixty) net shall be charged.
7. All claims for repairs or replacement shall be nullified if the purchaser himself makes alterations or repairs to the delivered goods, or has these done, respectively if the purchaser does not use the delivered products carefully according to the accompanying instructions, or uses or treats these products improperly in another manner, or uses the products for other purposes than for which these were originally intended.
8. Noncompliance by the purchaser with any of his obligations shall relieve KONIJNENBURG from his obligations under this article.
9. Apart from the obligation under the first paragraph of this article, KONIJNENBURG is not obliged to any damage compensation. Neither is KONIJNENBURG liable for any damage or injury inflicted on items or persons during the work carried out at the purchaser’s based on the obligations under this article.
- 9. Tolerances concerning product and quantity
1. Concerning those products for which the girth of the material and the sheet has been instructed, KONIJNENBURG is allowed a tolerance of up to 10 (ten) % upwards or downwards.
2. Concerning undersupply or oversupply of cast, molded or turned materials, KONIJNENBURG is allowed a tolerance of up to 10 (ten) % upwards or downwards.
3. For acceptable deviations concerning the measurements, respectively the hardness, we refer to the articles of the internationally established standards, all of this to the extent that this was not specifically deviated from in writing, and to the extent that a special specification was not agreed in writing.
4. Any parts provided to KONIJNENBURG by or on behalf of the purchaser, that are to be affixed on, in or to products to be manufactured by KONIJNENBURG, shall be delivered to KONIJNENBURG in the required quantity with an additional 10 (ten) % (if no other percentage has been agreed for this) in a timely manner, free and carriage paid. KONIJNENBURG does not accept any liability for the parts or other goods thus provided to KONIJNENBURG, nor for the quality and the proper applicability of these parts, and KONIJNENBURG can assume, without any investigation whatsoever, that these parts are unreservedly applicable in, or to the product to be manufactured.
10. Technical data
1. Images, drawings, samples and details on measurements, weights, bearing capacity, chemical sustainability and other technical specifications, provided by KONIJNENBURG, are mainly derived from data provided to us by manufacturers and suppliers that represent us. These data shall only be binding if KONIJNENBURG has explicitly stated this.
2. Bearing capacity of wheels indicated shall mean static bearing and has no relationship to the rolling resistance.
3. KONIJNENBURG retains the right to deliver the goods in an altered construction, provided the intended purpose of the goods is not affected.
4. Deviations in data provided, respectively altered constructions as referred to in this article, give no right to complaints or termination of the agreement.
11. Intellectual property rights of third parties
1. If articles are manufactured according to drawings, samples, models or other instructions in the broadest sense of the word, that KONIJNENBURG received from his client, or through his client from third parties, his client shall bear the full guarantee that, by the manufacture and/or delivery of these articles, no patent, right of use of brands, trade models or any right of third parties is violated, and the client indemnifies KONIJNENBURG against all claims that might be instituted against KONIJNENBURG.
2. If a third party, based on any alleged right, objects to the manufacture and/or delivery, KONIJNENBURG is entitled forthwith and without any other ground, to immediately cease the manufacture and/or delivery, and to demand compensation for the costs already incurred, without prejudice to his claims for any possible further damage compensation on his client, without KONIJNENBURG being liable to any damage compensation to his client. KONIJNENBURG is obliged to inform the client forthwith of any objections received by KONIJNENBURG from third parties against the manufacture and/or delivery of the article concerned.
1. Except for mandatory statutory provisions, KONIJNENBURG is not obliged for any compensation of damage of whatever nature, direct or indirect, including business damage, damage to movable or immovable property, or damage to persons, both with the other party or with third parties. The other party is obliged to indemnify KONIJNENBURG and hold KONIJNENBURG harmless for all costs, damage and interests that could occur for KONIJNENBURG as a direct result of claims by third parties against KONIJNENBURG for incidents, acts or negligence, for which KONIJNENBURG is not liable against the other party according to these terms. Taking into account the stipulations elsewhere in this article, KONIJNENBURG is in any case not liable for damage caused by inexpert use of the delivered product or the use thereof for another purpose than for which it is suitable according to objective standards. KONIJNENBURG is also not liable for damage caused by a defect in his product if:
a. KONIJNENBURG has not brought the product onto the market;
b. It is likely, based on the circumstances, that the defect causing the damage did not exist at the time that KONIJNENBURG brought the product onto the market, respectively that this defect occurred later;
c. The product was not manufactured for KONIJNENBURG for sale or for any other form of distribution with an economic purpose, nor was it manufactured or distributed within the scope of KONIJNENBURG’s business;
d. The defect is the result of the fact that the product complies with mandatory government decrees;
e. It was impossible, based on the state of scientific and technical knowledge at the time that KONIJNENBURG brought the product onto the market, to discover the existence of the defect;
f. Where it concerns the manufacturer of a part, the defect can be attributed to the design of the product of which the part forms a component, respectively to the instructions issued by the manufacturer of the product.
2. The liability of KONIJNENBURG is (also) limited by the maximum amount covered by his product, trading loss and transport insurance. Except for the other stipulations in this article, damage caused by KONIJNENBURG to the other party (trading loss) shall at all times be limited to the net invoice value of the delivered product. A refusal in writing by the insurer concerned shall be full proof.
3. Compliance with the applicable guarantee/complaints obligations and/or payment of the damage established, by KONIJNENBURG and/or his insurer, shall be considered the sole and entire damage compensation. The other party shall explicitly and completely indemnify KONIJNENBURG against any other compensation.
4. KONIJNENBURG accepts no liability whatsoever for damage occurring due to violation of patents, licenses and/or other intellectual property rights of third parties, resulting from the use of data, such as drawings, models and suchlike in broadest sense of the word, provided by or on behalf of the purchaser. If KONIJNENBURG refers, in the agreement in writing concluded with the client, respectively in his order confirmation, to technical, security, quality and/or other regulations, applicable to the products, the client is assumed to be aware of these, unless he informs KONIJNENBURG to the contrary forthwith in writing. In that case KONIJNENBURG shall further inform the client of these regulations. The client undertakes to inform his buyers at all times in writing of the aforementioned regulations.
5. If KONIJNENBURG assists in assembling and/or preparing the products for working order, without this being stated in the order, this shall be at the request of, and to the account and risk of the client.
6. Solely taking receipt of the delivered goods by or on behalf of the other party, indemnifies KONIJNENBURG against all possible claims of the other party and/or third parties for the payment of damage compensation, irrespective of the cause of the damage, except for compliance with the guarantee obligation.
7. Concerning advice provided, KONIJNENBURG is only liable for defects that can normally be avoided and/or foreseen, but only to the amount of the stipulated fee for advice.
8. If KONIJNENBURG has to purchase the goods elsewhere, any (contract) stipulations that may apply to that transaction shall also apply for the other party, if and to the extent that KONIJNENBURG can invoke these.
9.Except in cases of intent or gross negligence by KONIJNENBURG himself, and except for his guarantee obligations, KONIJNENBURG shall never be liable for any damage suffered by the client, including, among others, consequential damage, nonmaterial damage, business or environmental damage, respectively damage caused by liability towards third parties.
1. Unless agreed to otherwise, payment shall be effected net, without any discount or setting off, by payment or transfer to a bank or giro account designated by KONIJNENBURG, within 30 days after date of invoice. The value date stated in his bank/giro account statements shall be determining and therefore designated as date of payment.
2. If the purchaser fails to pay in time, he shall owe a minimum of EURO 40.- (forty) for extrajudicial collection costs, without a further notice of default being required.
KONIJNENBURG shall also be entitled to charge an interest equal to half a percent over the statutory commercial interest for each month or part of a month considered a whole month, of this for the amount of the invoice, to be calculated from thirty days after the date of invoice, as well as an additional collection registration fee of EURO 30.- (thirty).
3. Each payment of the purchaser shall serve primarily as payment of the interest he owes, as well as the collection and/or administration costs incurred by KONIJNENBURG and shall then be deducted from the oldest claim owed.
15. Retention of title
1. All goods delivered by KONIJNENBURG, also if these goods have been assembled by KONIJNENBURG at the location of the purchaser or his client under the agreement, shall remain the property of KONIJNENBURG until such time that the purchaser has paid in full all amounts owed to KONIJNENBURG under this or any thereto related agreement, including interest and costs.
2. In case of treatment, processing or mixing of the delivered products by or with the purchaser, KONIJNENBURG shall obtain the co-ownership in the newly created goods and/or the goods composed with the delivered goods, to the value of the delivered original goods.
3. The purchaser is obliged, as long as the delivered goods are not used, to keep these goods separate from other goods, in a clearly recognizable manner, as long as ownership has not been transferred.
16. Right of retention
1. KONIJNENBURG shall have the right of retention on all goods that are kept by KONIJNENBURG by or on behalf of the purchaser, for whatever cause, as long as the purchaser has not complied with all his obligations towards the purchaser.
2. KONIJNENBURG is obliged to manage these goods in accordance with good business practice, without the purchaser being entitled to claim any damage compensation in cases of loss, partial loss and/or damage that cannot be attributed to KONIJNENBURG. The risk of the goods therefore remains with the customer.
17 Breach of contract by the purchaser
In cases that the purchaser:
a. Is declared bankrupt, assigns his assets, applies for suspension of payment, respectively if all or part of his assets are attached;
b. Is deceased or is placed under administration;
c. Fails to comply with any of his obligations by law or under these terms;
d. Fails to pay an invoice amount or a part thereof within the term imposed on him;
e. Proceeds to halt or transfer his business or a major part thereof, including contributing his business in a company to be incorporated or already existing, respectively alters the purpose of his company;
The single occurrence of any of the aforementioned circumstances entitles KONIJNENBURG to terminate the agreement without any judicial intervention being required and to demand immediate full payment of any amount owed by the purchaser based on work conducted by KONIJNENBURG and/or executed deliveries, without any advance caution or notice of default being required, all of this without prejudice to his right to compensation of costs, damage and interest.
2. If the purchaser is obliged by law, after it has been shown that he is unable to pay, to inform government authorities or industrial insurance board thereof forthwith, the purchaser is obliged to inform simultaneously KONIJNENBURG of this in writing forthwith.
3. In cases of, among others, nonpayment of a claimable amount, suspension of payment, application for suspension of payment, bankruptcy, placement under administration, decease, winding-up of the business of the client, KONIJNENBURG shall be entitled, without a notice of default or judicial intervention being required, to demand back as property the goods that were delivered, but not paid, setting off any amounts already paid, but without prejudice to the right to demand compensation for any loss or damage.
4. The purchaser shall enable KONIJNENBURG at all times to immediately take back any goods that have not yet been paid, respectively leased goods, wherever these goods are located.
5. The goods can be sold on or used by the purchaser in the scope of his normal course of business, but cannot be encumbered in any way. If the goods not yet paid for are resold, the purchaser is obliged to retain the title thereof and, at KONIJNENBURG’s first request, transfer an undisclosed pledge on all claims for the amount owed to KONIJNENBURG.
18 Disputes and applicable law
1. The laws of The Netherlands shall apply to all his offers, agreements and the execution thereof, excluding the Act of 15 December 1971 for the execution of the Convention concluded in The Hague, The Netherlands, on 1 July 1964, relating to a Uniform Law on the International Sale of Goods, Treaty Series 1964 no.117 and 1968 no. 13 (Bulletin of Acts and Decrees 1971, S780 and S781) and the Vienna Sales Convention dated 11 April 1980.
2. All disputes, including those who are only considered a dispute by one of the parties, resulting from or related to the agreement to which these terms apply, or the terms concerned themselves and the interpretation or execution thereof, both of a factual and of a legal nature, shall be resolved by the Court of Amsterdam, to the extent allowed by law.
3. In case of a dispute, the data in KONIJNENBURG’s administration shall be decisive, except if there is proof to the contrary.
These General Terms and Conditions were filed at the Registry of the District Court of Amsterdam on 15 June 2012.
20 Inspection of terms
A copy of the English version of the General Sales Conditions of KONIJNENBURG BV are available for inspection at the Registry of the District Court of Amsterdam, The Netherlands. These General Conditions can also be downloaded from the KONIJNENBURG website (www.konijnenburg.nl).