General Terms and Conditions
1) Definitions
Supplier shall mean: KMA Group BV (KMA), its representative(s) and/or agent(s). The other party is understood to mean: every (legal) person who enters into an agreement with the supplier, or requests an offer or receives an offer from KMA and its representatives, assignees and heirs.
2) General
These general conditions are applicable to all offers of KMA and all transactions under any title whatsoever.
These general conditions are applicable to all agreements with KMA for the execution of which KMA makes use of the services of third parties.
Applicability of conditions used by the other party is excluded, insofar as they conflict with these conditions.
By placing an order and/or taking delivery of the delivered goods, the other party accepts these conditions and is deemed to have tacitly agreed to the exclusive applicability of these conditions to any orders given by him orally, by telephone, by e-mail or in any other way, regardless of a written confirmation on the part of KMA.
In the event of a dispute about the interpretation of these conditions, the Dutch text shall be decisive.
In the event of a conflict between the text of the offers of KMA and these general conditions, the text of the offers will prevail.
3) Offers / quotations
All offers made are without obligation, unless otherwise stated in the offer. All price lists, brochures and other data provided with our offer are given as accurately as possible. These quotations are also only binding insofar as this has been expressly stated.
In the case of a composite quotation, there is no obligation for KMA to deliver a part of the goods included in the offer at a corresponding part of the price corresponding to the whole. c. Offers only cover the quantities mentioned in the offer and do not automatically apply to repeat orders.
Forwarding of offers and/or other documentation does not oblige KMA to deliver or accept the order.
KMA reserves the right to refuse orders without giving reasons or to deliver cash on delivery.
If a sample, model or example has been provided or shown by KMA, then this is presumed to have only been shown or provided by way of indication. The quality of the goods to be delivered may deviate from the sample unless it was explicitly stated that delivery would be made in exact conformity with the sample shown or provided.
4) The agreement
Agreements bind KMA only after written confirmation or after KMA has delivered in accordance with the placed order.
Agreements through the mediation of our representatives or agents only bind KMA after they have been confirmed in writing by KMA or after KMA has proceeded to delivery.
Any additional agreements or amendments only bind KMA if these have been confirmed by KMA in writing.
With each agreement, it is applicable that this is only entered into by KMA under the suspensive condition that the other party appears to be sufficiently – exclusively at the discretion of KMA – creditworthy for the fulfillment of the agreement.
KMA is entitled at or after the conclusion of the agreement, before (further) performance, to demand security from the other party that both payment and other obligations are met.
KMA is authorized to engage others for the execution of an assignment, the costs of which will be passed on to the other party in accordance with the quotations provided. If desired, KMA will consult with the other party about this.
If there is a call-off order then, unless expressly agreed otherwise, it applies that it must be taken within 6 months, counting from the date of the written record of the agreement. If this is not the case then KMA is entitled to proceed to invoicing. From that same date, the other party will owe storage costs to KMA.
5) Prices.
Unless otherwise stated, all quotations are subject to price changes
Unless otherwise stated, the prices of KMA:
Based on the level of purchase prices, labor costs, social charges and insurance, freight, insurance premiums and other costs applicable during the offer date or order date; ii. Based on delivery ex factory KMA, warehouse or other place of storage; iii. Excluding VAT, import duties, other taxes, levies and duties; iv. Excluding the cost of packaging, loading and unloading, transportation and insurance; v. Stated in Euros.
In the event of an increase of one or more cost price factors, KMA is entitled to increase the order price accordingly, all this with due observance of any existing statutory regulations in this respect, on the understanding, however, that already known future price increases must be stated with the order confirmation.
If there is a price change as a result of statutory regulations, then that is a circumstance to which both parties have to adhere.
6) Delivery and delivery time
Unless otherwise agreed upon, delivery will take place ex factory by KMA. The moment of delivery is the moment on which the goods leave the warehouse of KMA. Free delivery only occurs if and insofar as this is indicated by KMA on the invoice or otherwise.
The opposing party is obligated to inspect the delivered goods immediately upon delivery for any shortfalls or damage, or to carry out this inspection after notification by KMA that the goods are at the disposal of the opposing party. c. Any shortfalls or damage to the delivered goods and/or the packaging upon delivery must be stated by the opposing party on the delivery note, the invoice and/or the transport documents within 8 days and reported back to KMA. In the absence of such mention, the other party will be deemed to have approved the goods. In that case, any complaints will no longer be dealt with.
Minor deviations in color, model and the like not unusual in the industry are permissible, unless expressly agreed otherwise. Deviations in quantities of up to 5% more or less are permissible.
KMA reserves the right to deliver in parts, which it will invoice separately. The other party undertakes to pay in accordance with what is stipulated in these conditions.
The statement of delivery time is always an approximation unless explicitly agreed upon otherwise. KMA excludes liability of any consequences of a late delivery.
In the event the goods have not been taken by the other party after the expiry of the delivery period, they will be stored at his disposal, at his expense and risk.
7) Cancellation/rejection of acceptance
Cancellation by the other party of an order accepted by KMA is only valid when notified by registered letter to KMA.
After KMA has agreed to the cancellation, the other party is in any case required to reimburse KMA for all costs incurred for the execution of the agreement and / or the cancellation suffered and still to be suffered damage and the loss of profit caused, regardless of other rights of KMA. In addition, KMA is entitled to charge an amount equal to 15% of the amount to be invoiced as a penalty.
If the opposing party refuses to take delivery of a completed order within the applicable delivery period, the provisions in paragraph a) shall apply in full on the understanding that the goods are at the disposal of the opposing party and will only be delivered if the opposing party has paid the full principal amount including interest, storage costs and any other costs.
8) Transport and risk
The manner of transport, shipment and packaging will, if no further instructions have been given by the other party to KMA, be determined by KMA as a good merchant, without KMA accepting any liability for this, any wishes of the other party regarding the transport or shipment will only be carried out if the other party assumes the additional costs thereof.
The shipment of goods shall always take place at the expense and risk of the other party, even if carriage paid delivery has been agreed upon, even if the carrier demands that the waybills, transport addresses and the like contain the clause that all possible transport damage is at the expense and risk of the sender, unless otherwise agreed upon.
Delivery by mail or messenger shall be made only against payment in advance or by cash on delivery, unless otherwise agreed in writing. Execution of orders to or from abroad can only take place against prepayment, cash on delivery or against opening of an irrevocable ‘letter of credit’ unless otherwise agreed (in writing).
For orders under € 250 a € 25 order fee will be charged.
9) Force Majeure
This is understood to mean any circumstance independent of the will of the parties or unforeseeable, as a result of which fulfillment of the agreement can no longer reasonably be required of KMA by the other party. Force majeure is in any case understood to mean work strikes, excessive absenteeism of the personnel of KMA, problems with the transport, fire, government measures, including import and export bans, quota restrictions and business interruptions at KMA or at the suppliers of KMA as well as non-performance by suppliers of KMA as a result of which KMA can no longer fulfil its obligations towards the other party.
KMA will inform the other party as soon as possible if, in the opinion of KMA, a force majeure situation occurs or threatens to occur, and will consult with the other party about a new term on which the performance will be delivered. If the force majeure situation is of a temporary nature, KMA reserves the right to suspend the agreed performance for the duration of the force majeure situation.
If, in the opinion of KMA, the force majeure situation is of a permanent nature, then the parties can make an arrangement about the dissolution of the agreement and the associated consequences.
KMA is entitled to claim payment of the performances that have been carried out in the execution of the relevant agreement, before the circumstance causing force majeure has become apparent.
KMA is entitled to invoke force majeure if the circumstance resulting in force majeure occurs after the performance has been delivered by KMA.
10) Liability
KMA is not obliged to any compensation of damage of whatever nature, direct or indirect, including trading loss to (un)movable property, or to persons, both at the contracting party and third parties. In the case of third parties, KMA is not liable if:
Damage is caused by the use/processing of the delivered; ii. The delivered is processed into or into an end product, for which the delivered is or appears to be unsuitable; iii. The delivered appears unsuitable for the purpose for which it was purchased;
The other party indemnifies KMA against all claims of third parties, arising from the use of goods delivered by KMA to third parties;
All this subject to intent or gross negligence of KMA or employees of KMA to be proven by the other party, insofar as they acted in accordance with explicit instructions of manager. The liability will never exceed the net value of the goods;
After the delivered goods have been received without complaints or after they have been processed or treated into an end product by or on behalf of the other party, KMA cannot be held liable in any way whatsoever and the other party indemnifies KMA against all possible claims by itself and/or third parties for the payment of compensation irrespective of the cause of any damage.
This limitation of liability applies if and insofar as our liability insurers do not provide cover in respect of damage caused to the other party and/or third parties.
11) Complaints
Any complaints will only be dealt with by KMA if they have reached us directly in writing within 8 days of delivery of the goods in question, with a precise specification of the nature and basis of the complaints.
Complaints about invoices must also be submitted in writing within 8 days after the date of dispatch of the invoices in question.
After expiry of the said period, the other party shall be deemed to have approved the goods delivered or the invoice, respectively. Complaints will then no longer be dealt with by KMA.
If the complaint is found to be well-founded by KMA, then KMA will only be obliged to replace the faulty goods without the opposing party being entitled to any compensation whatsoever.
The filing of a complaint never releases the other party from its payment obligation towards KMA.
Return of the delivered can only take place after our prior written consent under conditions to be determined by KMA.
12) Retention of title
All goods delivered by KMA remain the property of KMA until the moment of full payment of all that the party, on whatever account, owes KMA, including interest and costs.
In the event of non-payment, of a payable amount, suspension of payment, application for a moratorium, bankruptcy, receivership, death, or liquidation of affairs of the other party, KMA will have the right, without notice of default and without judicial intervention, to cancel the order or that part of it which is yet to be delivered, and to reclaim as the property of KMA that which has already been delivered or which has not yet been paid in full. In such cases, any claim on the other party will be at once and immediately due and payable.
The goods may be resold or used by the other party in the context of its normal business operations, but may not be pledged, nor may they serve as security for a claim of a third party.
In the event of a resale, the other party hereby transfers all rights/claims against the third party buyer to KMA. The other party is obliged to make known all relevant details regarding the third party buyer and conditions of sale (prices) at our first request. As long as the other party punctually fulfills its obligations, the supplier is not entitled to serve the third-party purchaser with this transfer, after which the third-party purchaser can only pay to KMA/the supplier in full discharge.
As security for correct payment of all claims of KMA, for whatever reason, KMA furthermore acquires title as security – by the arising of the claim – to all goods which KMA have delivered to the other party and which are still in his possession.
13) Copyrights and confidentiality of information.
KMA remains the owner of the rights of intellectual property such as, inter alia, copyright and design rights with respect to images, drawings, designs, models, accounts, calculations and further descriptions including catalogs, or prospectuses relating to the goods delivered.
The other party is not permitted to use the rights referred to in paragraph 1 in the broadest sense of the word, including, but not limited to, making reproductions, without written permission from the supplier.
The other party indemnifies KMA against any action by third parties based on infringement of intellectual property rights in respect of orders placed with it by the other party.
All orders placed with KMA and the information provided for the execution thereof shall be regarded by KMA as confidential. As such, they are handled at KMA and unless KMA is compelled to do so by legal provisions, it will not make information available to third parties.
The other party is not permitted to make changes to the goods, unless the nature of what has been delivered dictates otherwise or has been agreed otherwise in writing.
Any designs, sketches, drawings, films, software and other materials or (electronic) files that may have been created by KMA under the agreement will remain the property of KMA, regardless of whether these have been made available to the client or to third parties, unless otherwise agreed.
All documents provided by KMA, such as designs, sketches, drawings, films, software, (electronic) files, etc., are exclusively intended to be used by the client and may not be reproduced, made public or brought to the knowledge of third parties by him without the prior consent of KMA, unless the nature of the documents provided dictates otherwise.
KMA retains the right to use any knowledge gained by the execution of the work for other purposes, as long as no confidential information is brought to the knowledge of third parties.
14) Payment
Unless otherwise agreed, payments are to be made net in cash upon delivery without any discount or setoff, or by deposit or transfer to a bank account number designated by KMA, within 30 days of the invoice date. The value day indicated on the statements of those accounts is decisive and will therefore be regarded as the payment day.
Each payment of the other party primarily serves to pay the interest owed by him as well as the collection and administration costs incurred by KMA and will thereafter be deducted from the oldest outstanding claim.
15) Dissolution
If the buyer does not, or not in a timely manner, meet one of his obligations from a contract concluded with KMA, KMA has the right to dissolve the relevant contract or all of the contracts concluded with the other party by means of a single written notification and without a notice of default, without any judicial intervention being required, without prejudice to the rights of KMA, in particular the right to full compensation, including the costs incurred in and out of court. b. If the other party
Is declared bankrupt, renounces estate, submits a request for suspension of payment, requests the application of debt rescheduling for natural persons, or is confronted with an attachment of all or part of its property; ii. Dies or is placed under guardianship; iii. Fails to meet any of his obligations under the law or these terms and conditions; iv. Fails to pay an invoice amount or a part thereof within the term set for it;
proceeds to discontinue or transfer his company, including the contribution of his company to an already existing company, or proceeds to change the objective of his company;
by the mere occurrence of one of the above-mentioned circumstances, KMA will have the right either to regard the agreement as dissolved without any judicial intervention being required, or to demand any amount owed by the other party on the basis of the work and/or deliveries carried out by us immediately and without any warning or notice of default, in its entirety, all this without prejudice to the right of KMA to compensation of costs, damage and interest.
16) Interest and costs
If payment has not been made within the period specified in clause 14, the other party will be in default by operation of law and from the invoice date will owe interest equal to the statutory interest on the amount then outstanding. b. All judicial and extrajudicial costs to be incurred will be for the account of the other party. The extrajudicial collection costs amount to at least 15% of the amount owed by the other party, including the aforementioned interest.
17) Applicable law and disputes
All our offers, agreements and the execution thereof are exclusively governed by Dutch law, at least insofar as it deviates from the CONVENTION OF THE UNITED NATIONS ON INTERNATIONAL SALE CONTRACTS.
PURCHASE AGREEMENTS ON CURRENT LIABILITIES (UN Purchase Treaty, Trb.) 1981, 184 and 1986,
61).
All disputes, including those which are only considered as such by one party, arising from or relating to the agreement to which these conditions apply or the conditions in question themselves and its interpretation or execution, both of a legal and factual nature, will be decided by the Civil Court with jurisdiction within our area of establishment, this insofar as the statutory provisions permit. The provisions of paragraph 1 are without prejudice to the right of KMA to submit the dispute to the Civil Court with jurisdiction according to the normal competency rules, or to have it settled by arbitration or binding advice.
The conditions have been filed at the Chamber of Commerce in Leeuwarden on January 16, 2007.