General terms and conditions of sale Kramp Nederland B.V.
These Conditions apply to and shall be incorporated by reference to all agreements for sale by Kramp.
Article 1. Applicability of the general terms and conditions
1.1 These general terms and conditions apply to any quotes and offers issued by and any agreements entered into (including electronically) between Kramp Nederland B.V., having its registered office at Breukelaarweg 33, 7051DW Varsseveld, The Netherlands (hereafter referred to as "Kramp") as the seller or supplier and another party as the customer or buyer (hereafter referred to as the "Customer"), which relate to the sale and delivery of items and associated services (which items and services will be jointly referred to hereafter as "products") by Kramp to the Customer.
1.2 Any conditions deviating from these general terms and conditions are only applicable if and insofar Kramp has explicitly agreed to that in a written agreement and even then, they only apply to the agreement containing these conditions; apart from that, these general terms and conditions shall remain in force.
1.3 Once the Customer has entered into an agreement with Kramp based on these general terms and conditions, or if the Customer is or can reasonably be assumed to be aware of them, these conditions also become therefore applicable to every subsequent agreement entered into with Kramp, even if no explicit reference to these terms or conditions was made at the time the subsequent agreement was entered into, nor to a statement in which these conditions are explicitly declared applicable.
1.4 Kramp hereby explicitly rejects the applicability of any general terms and conditions invoked by the Customer.
Article 2. Offers/conclusion of agreements
2.1 All offers made by Kramp are subject to withdrawal and can be revoked at any time, even if they include a period for acceptance.
2.2 Offers can only be accepted in writing. Kramp nevertheless has the right to consider the acceptance by a Customer of a quote expressed in any other way as if it had been confirmed in writing.
2.3 Any offer, whether made verbally or in writing, automatically expires if the Customer has not accepted it within ten working days in writing, unless Kramp indicates otherwise.
2.4 Designs, pictures, drawings, calculations, dimensions, capacity, weights, performance, models and any other information provided by Kramp, whether or not these are included in its catalogues, brochures, advertisements, websites, etc., are as accurate as possible, but the Customer must not fully rely on their accuracy and completeness, unless explicitly agreed otherwise in writing.
Article 3. Prices
3.1 All prices quoted by Kramp exclude VAT, other costs and surcharges (including freight charges), insofar as nothing else has been agreed in writing.
3.2 Kramp's prices and any surcharges are based on the exchange rates, material costs, freight charges and labour costs in force at the time of the offer. If Kramp is faced with additional costs after issuing an offer or after entering into an agreement, due to an increase in material costs, freight charges, labour costs, import and and/or export duties and/or levies of any kind, or costs caused by changes in the exchange rate, it is allowed to pass on these additional costs to the Customer.
Article 4. Transport, delivery time, delivery, return procedure, packing crates
4.1 Unless agreed otherwise, Kramp shall arrange transportation to the delivery address of any products ordered.
4.2 A delivery time is always understood to be a period indicated by Kramp within which the products could be delivered. This period is indicated to Kramp's best knowledge, based on the information and circumstances known to Kramp at that particular time. Kramp will endeavour to deliver the products within the delivery time.
4.3 Delivery times that are indicated and/or agreed shall not mean final deadlines, unless explicitly agreed otherwise in writing. In the event a delivery is not made in time, the Customer must therefore send Kramp a written notice of default, indicating a reasonable deadline; taking into account that a period of less than ten working days cannot constitute a reasonable deadline in any case.
4.4 A delayed delivery does not give the Customer any right to damages for loss or costs, nor the right to refuse acceptance of the ordered products or to terminate the agreement.
4.5 If circumstances have changed in comparison with those known to Kramp when it agreed to a delivery period, Kramp can extend the delivery period by the time needed to deliver the products.
4.6 Kramp reserves the right to deliver orders in consignments, in which case the terms of payment set out under Article 6 below will also apply to each part delivery.
4.7 Unless agreed otherwise, delivery will be made to the address of the Customer's registered office.
4.8 Unless agreed otherwise, products are considered as delivered at the point when the transport company delivers those products to the delivery address by order of Kramp. If transport is organised by the Customer, the products are considered as delivered at the point when Kramp presents them to the transport company.
4.9 If ordered products are delivered without a representative of the Customer being present to accept the delivery of the products and if no secured, lockable area is available at the delivery address where the transport company can leave the products, the transport company's statement that the products have been delivered in good order is considered as sufficient and full proof that the products were delivered in good order.
4.10 Kramp does not give refunds and does not accept products returned by the Customer, unless Kramp has explicitly agreed to this in advance and provided the return consignment is sent in conformity with Kramp's conditions. If returns are sent without permission, any transport and storage costs must be paid by the Customer.
4.11 Any reusable plastic packing crates bearing the Kramp logo which Kramp makes available to the Customer for transporting the products sold to the Customer remain the property of Kramp at all times and must be returned by Customer to Kramp as soon as possible.
Article 5. Transfer of risk
5.1 From the moment of delivery, the products delivered will be at the Customer's risk. From the moment of delivery, the Customer bears the risk of the delivered products getting lost, becoming damaged or for any other decrease in value of the products supplied.
5.2 When the Customer undertakes to arrange the transport, the Customer bears the risk of the delivered products getting lost, becoming damaged or for any other decrease in value of the products supplied, including the risk from storage, loading, transport and unloading, from the moment Kramp has presented the goods to the transport company.
Article 6. Invoices, payment, due and payable, security
6.1 Unless agreed otherwise in stead of sending original paper invoices per mail, Customer accepts that Kramp only shall send invoices in an electronic format per email to Customer.
6.2 Payment must be made within thirty days from the invoice date in the currency shown on the invoice, unless other terms of payment have been agreed.
6.3 The full amount owed by the Customer to Kramp becomes immediately payable when:
a) a payment deadline has expired;
b) the Customer's bankruptcy or a moratorium on payments has been requested;
c) a seizure is carried out on the Customer's assets or receivables;
d) the Customer dies, is dissolved or wound up;
e) when a request is made by or on behalf of the Customer for a statutory debt restructuring scheme or when the Customer is placed in receivership.
6.4 Any payment received first shall be considered to cover the costs, then any interest charges that have arisen and only then reduce the principal sum still outstanding.
6.5 If the terms of payment are exceeded, the Customer is by law in immediate default and owes the statutory interest rate for commercial transactions (pursuant to Book 6 Article 119a Civil Code) on the full invoice amount, with a minimum of €40. For the calculation of the interest charges, any part of a month is considered as a full month.
6.6 The Customer is not allowed to offset any amount that is payable to Kramp against any due or undue counter-claim instigated by the Customer against Kramp, unless Kramp is bankrupt.
6.7 If the Customer is in default of payment, all collection costs, both judicial and extrajudicial, must be paid by the Customer. The extrajudicial costs are deemed to be at a minimum of 15% of the outstanding principal sum and interest, with a minimum of €250 excluding VAT, without prejudice to Kramp's right to claim the actual extrajudicial costs incurred from the Customer, if they exceed the assessed amount.
6.8 If the Customer does not fulfil any of his obligations towards Kramp arising from the agreement, or if Kramp can reasonably assume that the Customer will not be able or willing to fulfil any of the aforementioned obligations in the future, Kramp has the right to do the following, at its own discretion, without becoming liable for any damages:
a) to demand payment in advance, adequate security for the payment, or immediate payment upon delivery of any payments due for all current and future agreements;
b) to suspend deliveries (as well as the preparation and processing of products destined for delivery), without prejudice to Kramp's right to demand simultaneous or subsequent security for the payment;
c) to terminate this agreement in full or insofar it has not yet been carried out, with immediate effect;
d) to dissolve one or more current sales agreements for which the Customer is not in default, in full or insofar they are not yet completed, with immediate effect, without prejudice to Kramp's right to claim full damages from the Customer.
6.9 Regardless of the agreed terms of payment, the Customer is obliged to provide a security that Kramp considers sufficient for the settlement of the Customer's financial obligations to Kramp at the first request of Kramp. If the Customer fails to comply within a reasonable period, the Customer is automatically in default by law and Kramp will have the right to terminate the agreement and to recover the loss from the Customer.
Article 7. Complaints
7.1 The Customer must inspect the products as soon as possible after delivery and inform Kramp at the latest within 24 hours in writing of any visual faults. Kramp does not accept any responsibility for any such faults reported after that term and is not obliged in that case to repair or replace the products supplied, nor can the Customer return the product to Kramp in that event.
7.2 The Customer has a general duty of inspection regarding faults other than those listed in this article under 7.1. If the Customer still considers the product to be defective after the inspection, or if the Customer should have known that a product is faulty, he must inform Kramp of this as soon as possible in writing, but definitely within eight days after the Customer has become aware of or should have been aware of the fault, giving a sufficiently detailed description of the nature and extent of the fault. If the complaint has been reported in time, the Customer must enable Kramp to inspect the product concerned; failure to do so will result in the complaint not being dealt with.
7.3 If Kramp finds the complaint to be justified, it will be granted the time required, either to carry out the repairs it deems necessary or to replace the rejected product with another product, at Kramp's discretion. When replacing rejected products, Kramp may take into account any benefit the Customer has had from them in the interim period and charge a reasonable fee for this.
7.4 Even complaints that were submitted in time will not be dealt with and the products concerned cannot be returned if it appears that products were amended or repaired without Kramp's permission, unless this was done with Kramp's consent.
7.5 If a complaint is made too late or is unjustified, the delivery is considered to be in conformity with the agreement and Kramp will be entitled to charge the Customer for the costs incurred in relation to the complaint. Lodging a complaint does not give the Customer a right to suspend payment and does not absolve him from his payment obligations to Kramp.
7.6 At the risk of forfeiting all rights, the Customer must lodge any complaints about the level of the invoiced amount to Kramp in writing as soon as possible, but at the latest within one week of the date of payment, failing which the complaint will not be admissible and the Customer will owe the full invoiced amount to Kramp.
Article 8. Warranty
8.1 Kramp's obligations under the warranty for repairing or preventing faults in products that are supplied by Kramp shall not exceed the warranty obligations Kramp's supplier offers to Kramp.
8.2 Only faults that were already present but not visible at the time of delivery, which then become visible within three months of delivery will be remedied by Kramp by replacing the products or in another way, at Kramp's discretion.
8.3 The obligation under clause 8.2 only applies to faults that were not evident, after reasonable inspection, on delivery and that manifest themselves under normal operating conditions and with proper use of the product. It does not extend to faults that result from or are related to inadequate or poor maintenance or repairs carried out by or on behalf of the Customer, nor to faults that are the result of normal wear. In addition, no warranty is given on products that were not new at the time of delivery.
8.4 The Customer can only invoke the rights arising from Article 8.1 and 8.2, if he:
- informs Kramp in compliance with Article 7 of the faults identified
- makes a plausible case for the existence of a fault; and
- provides his full co-operation to enable Kramp to remedy the fault within a reasonable period.
8.5 The Customer will return all faulty parts to Kramp at his own expense for repair or replacement, except where the nature of the fault means that repair has to be carried out on-site. In that case, Kramp will be deemed to have met its obligation under the warranty as soon as it makes the repaired part or replacement part available to the Customer or his transport company.
8.6 The faulty products that have been replaced by Kramp pursuant to this article then become Kramp's property by law.
8.7 Any Customer allegation that Kramp is not fulfilling its obligations under the warranty does not absolve the Customer from his obligations arising from the agreement with Kramp.
8.8 The Customer cannot transfer his rights based on this article.
Article 9. Liability
9.1 With due observance of the provisions set out elsewhere in these terms and conditions, Kramp is under no circumstances liable for damage caused by any improper use of the products supplied or for products used for a different purpose than they are intended for.
9.2 With the exception of the obligations to uphold the warranty pursuant to the provisions in Article 8.1 and 8.2 and with the exception of any statutory obligations, Kramp's liability (including, but not limited to, any forms of damages for direct, indirect or consequential loss, loss of profit and loss resulting from unlawful acts) is excluded, unless and insofar Kramp is guilty of deliberate intent or serious misconduct and with the exception of any liability that Kramp has explicitly accepted in writing. In any case, Kramp's liability will never exceed the amount invoiced that the Customer owes Kramp based on the delivery in question to the Customer (excluding VAT), regardless of whether the case involves direct loss, personal injury, loss due to delays or loss under any title.
9.3 Kramp is not liable for any advice, information, recommendations, etc. that it has given verbally or in writing.
9.4 The Customer indemnifies Kramp against any claims from third parties for loss resulting from a product that Kramp supplied to the Customer. The Customer is obliged to take out and maintain adequate insurance insofar as necessary for the purpose of the indemnity stipulated in this article, to ensure cover for this sort of liability.
9.5 The Customer indemnifies Kramp against any claim from third parties in relation to the use of any designs, pictures, drawings, calculations, dimensions, capacity, weights, performance, models and other data by or on behalf of the Customer.
9.6 The provisions in Article 9.1 to 9.5 can be invoked accordingly by employees of Kramp.
Article 10. Retention of title
10.1 Any products already delivered and still to be delivered pursuant to any agreements between Kramp and the Customer (including all products paid for by the Customer) remain the exclusive property of Kramp, until any claims that Kramp has and will have against the Customer for those deliveries are settled in full.
10.2 As long as the title of the products has not been transferred to the Customer, the latter is not allowed to alienate or encumber them (including pledging or mortgaging them, or granting any other rights to or for the benefit of third parties). The Customer undertakes to co-operate with Kramp upon its first request to establish a right of pledge on the claims that the Customer has or will have pursuant to the resale of any products supplied by Kramp to its customers.
10.3 The Customer is obliged to store the products that Kramp has supplied to the Customer under retention of title with the necessary care, while ensuring they are identifiable as Kramp's property and are kept in a location where they are segregated from other items.
10.4 Kramp is entitled to recover the products that it has delivered to the Customer under retention of title and that are still at the Customer's site if the Customer is in default of his payment obligations, if one of the circumstances set out in Article 6.2 is applicable or if the Customer is or at risk of having problems with payments. The Customer will grant Kramp access at any time to his sites and/or building for the inspection of the products and/or to allow Kramp to exercise its rights.
10.5 The provisions set out in Article 10.1 to 10.4 do not prejudice the other rights accruing to Kramp.
Article 11. Intellectual property rights
11.1 Unless agreed otherwise in writing, Kramp retains the copyrights and all industrial property rights on any offers, submitted designs, pictures, drawings, prototypes, software, etc. that it issues.
11.2 The rights to the information referred to in Article 11.1 remain Kramp's property, regardless of whether the Customer has been charged for its production; this information must not be copied, used, or made available to third parties without Kramp's prior explicit written consent.
Article 12. Force majeure
12.1 In the event of force majeure, Kramp is entitled, at its discretion, either to dissolve the agreement made or to suspend the time of delivery until the situation of force majeure ceases to exist, without the Customer being entitled to any damages from Kramp.
12.2 In the event of force majeure, the Customer is only entitled to terminate the agreement after a period of six months, and even then only for the part of the agreement that has not yet been performed.
12.3 Force majeure on Kramp's side includes, but is not limited to, any case where, after the agreement has been concluded, Kramp is fully and/or temporarily prevented from complying with its obligations arising from the agreement, or from carrying out the necessary preparations, as a result of fire, water damage, flood, work strike, factory occupation, import or export restrictions, government measures, power cuts, a default by Kramp's suppliers, as well as any freight delays or impediments to transport, and additionally any other causes that are not Kramp's fault or for which Kramp does not bear the risk.
12.4 Kramp will inform the Customer at the earliest opportunity that force majeure applies.
Article 13. Communications
13.1 Unless provided otherwise, any communications about the (execution of the) agreement must be made in writing. Any reference to "in writing" in these terms and conditions also includes the use of email.
13.2 Any claims regarding performance and notices of default from the Customer must be sent by registered mail, which must clearly indicated what is required and within which period of time. The same applies to the imposition of any other deadline and for any demand to terminate the agreement. Any demand for termination must clearly state the grounds on which it is based.
Article 14. Disputes
14.1 The agreement with the Customer is exclusively governed the laws of the Netherlands. The applicability of the Vienna Sales Convention (CISG) is furthermore explicitly excluded.
14.2 Any disputes can only be adjudicated by the competent court in Arnhem, the Netherlands.