GENERAL CONDITIONS OF SALE, DELIVERY AND TRADE
Filed with the Chamber of Commerce for Brabant under Chamber of Commerce number: 17184127
Of the private company KEMIE B.V. , with offices at Industrielaan no. 6 5721 BC in Asten ( N.-B. ).
The user of these general terms and conditions, Kemie B.V. is hereinafter referred to as: the user, the other party is any person with whom the user enters into an agreement or who maintains a legally relevant relationship with the user from which mutual rights and obligations may arise.
All agreements and legal relationships are governed by the following terms and conditions as they apply on the date of the conclusion of the agreement and/or the arising of the legal relationship. Insofar as the user refers to its general terms and conditions, this always includes the most recently amended general terms and conditions. The applicability of any general terms and conditions used by the other party is explicitly rejected.
2. Applicable law
All agreements and rights and obligations arising from relationships are declared to be governed by Dutch law. With respect to any disputes arising between the parties and which are regarded as such by one of them, the competent court in the place where the company is located shall, insofar as the treaty, law or regulation permits this, have exclusive jurisdiction to take cognisance of such dispute.
3. Quotations and order confirmations
All offers made by the user, including quotations are without obligation, unless explicitly stated otherwise. A quotation is not binding for the parties until it has been accepted or confirmed or laid down in a further agreement by the other party in writing and is not revoked by the user prior to such time of acceptance.
If an agreement sent to the other party by the user to be signed, is not signed and returned within 30 days thereafter, the user is at any rate released from all obligations and not bound to any copy of it still signed after the lapse of such period. Only the written confirmation of a quotation issued by the user contains the correct contents and description of the rights and obligations of the parties. A formulation and/or statement of the other party that deviates from this is not binding on the user. Verbal offers are only binding if explicitly confirmed or accepted by the user.
If a description of the quality and/or type and/or number of the goods in the order confirmation or further agreement differs from an offer made earlier or a request for delivery, the description in the order confirmation and/or further agreement is always the description binding on the parties. Drawings, enclosed with the order confirmation form part of the agreement for the parties. The dimensions and model shown in the drawing are binding on the parties, even if they differ from the dimensions and/or model specified in the quotation or contract initially provided. If the other party believes that the drawing which is part of the agreement contains an error he shall immediately object to this. If no objection has been made within 14 days of receipt of the drawing, the other party shall be deemed to accept the drawing made by the user and any changes thereof, and is deemed to have forfeited the right to an appeal to the inaccuracy of the drawing and/or dimensions and/or model.
4. Implementation and suspension
The user may regard an agreement concluded between the parties as terminated with immediate effect or to suspend the performance thereof if, in the opinion of the user, it is established after conclusion of the agreement, that the other party will not be able to meet its obligations under the agreement concluded between the parties. The user excludes any and all liability for contractual and/or unlawful damage to the other party and/or third party that may arise or result from the exercise of the authority under this article.
The user is authorised to suspend the delivery if the other party is in default in that it did not fulfil an obligation (in good time).
If, due to circumstances beyond the user's control, the user is unable to perform the stipulated delivery, a refund will be paid to the other party if the other party has fully or partly fulfilled its obligations, and the agreement will be regarded as non-existent. The user will never be liable for any damage caused by a circumstance beyond its control. These circumstances shall be deemed to include natural and other disasters, wars and the threat of war, mobilisation, fire at the user's company, impediments to transport, delays in supply, strikes, riots, government measures which prevent, regulate or limit import and/or export, in short any inability to perform the activities concerned to the extent that this is not attributable to the user or have not arisen due to the user.
In the event that certain materials stipulated in the agreement cannot be delivered, the user will be released from the obligation to deliver them. Where appropriate, the user will inform the other party of the reason for the non-delivery. The other party cannot claim the costs ensuing from non or late compliance and/or other damage from the user.
5. Interim price changes and additional costs
All agreements are concluded based on the then current prices. If, after the conclusion of an agreement prices of raw materials increase, the user will be entitled to pass these on. If, at the time when the costs are passed on, a period of 3 months has not yet lapsed when the price increase is passed on, the other party will be entitled to terminate the agreement concluded between the parties within 8 days after the price increase has come to his knowledge. Orders placed after the conclusion of the agreement shall always be confirmed in writing by the user. If this concerns amendments to the agreement concluded between the parties with respect to the activities to be performed by the user, the additional costs will always and entirely be for the account of the other party.
Invoicing shall take place immediately upon delivery in accordance with the delivery note, unless agreed otherwise. Payment must be made without discount or compensation and in the manner indicated in the quotation or order confirmation. Payments to third parties shall never be regarded as legally valid payments. An appeal to compensation is therefore explicitly excluded. The user is entitled to postpone the delivery if, in its opinion, sufficient security should be provided by the other party for the fulfilment of its payment obligations. If the other party has not provided the required user security before the date specified by the user, then the user has the right to suspend the performance of the agreement concerned, or regard it as terminated, and determine the amount owed by the other party at equal to 40% of the amount agreed for the performance of the user in respect of related costs, trading loss and loss of profits. Where appropriate, the user is authorised to demand a guarantee deposit to compensate any damage that may arise or be caused by the actions of the other party or which can be attributable to him and/or to circumstances that are for the other party's risk. If the risk of damage is no longer present, and any possibly delivered (auxiliary) goods have been delivered back in the correct manner and at the appropriate times without any damage, the guarantee deposit will be refunded.
If invoiced payment has been agreed, the other party shall pay the invoices sent by the user within 14 days of the invoice date. If the parties have explicitly agreed that payment shall be made net in cash, the payment shall take place simultaneously with the delivery of the goods or services.
If the user has started the fulfilment of its obligations to the other party and is prevented from doing so by regulations or otherwise, the other party shall pay the agreed performance in full, without being entitled to still require the user to fulfil its obligations. Notwithstanding the payment term of 14 days after the invoice date, the amount stipulated in the agreement is fully and immediately payable by the other party in the event of bankruptcy, a moratorium or a petition for bankruptcy or a moratorium, if the other party is placed under guardianship or any of his goods is put under administration, attached before judgment or under a warrant of execution, when the other party dies or his company is liquidated.
In the event of late payment, the debtor shall owe 1% interest for each month or part of a month expired, calculated from the due date until the date of full payment. If the statutory interest rate is higher than the contractual interest rate, the user is entitled to charge statutory interest instead of contractual interest.
If the other party is a general partnership or a company conducted by several persons, each of the partners is jointly and severally liable for the total of all liabilities.
In the event that payment of the amount owed by the other party has not been made on the due date and is not forthcoming after a notice or demand from the user, the user will be authorised to engage a lawyer or bailiff to collect the debt out of court. For the calculation of the extrajudicial costs, the provisions of the Extrajudicial Collection Costs (Fees) Decree (Wet Normering Buitengerechtelijke Incassokosten), which came into effect on 1 July 2012 will be deviated from for non-consumers.
In addition to the interest payment referred to above, a percentage of 15% in extrajudicial collection costs will be calculated on the full amount owed.
For the calculation of the extrajudicial collection costs in respect of consumers, the Extrajudicial Collection Costs (Fees) Decree (Wet Normering Buitengerechtelijke Incassokosten) is applied, which came into effect on 1 July 2012 and the ensuing graduated scale for collection costs.
The other party shall ensure that at the time of delivery of the goods, which, under the agreement are to be delivered at the address indicated by the other party, a person shall be present who is authorised to take delivery of the goods, to check them and sign the delivery note that the goods are in good condition and undamaged.
In the event that the other party has failed to fulfil this obligation, the user will be authorised to deliver the goods at a later date, after the transport costs needlessly caused by the other party are reimbursed. In the event that a third party, on behalf of the other party, declares to be authorised to take delivery of the goods at the delivery address on behalf of the other party, the user may rely on such declaration and the delivered goods will be deemed to have been delivered to the other party undamaged and in good condition. After the delivery of the goods, the risk of damage and/or destruction of the goods will be for the account of the other party, even if the user makes use of the retention of title afterwards as a consequence of the failure of the other party to pay the invoice or part thereof.
Any damage occurring after delivery by placing the kitchen and/or by the performance of activities of other persons such as tilers, plumbers, electricians and/or the other party, etc. or by vandalism or any other cause, shall be borne by the other party. The other party is never entitled to leave the invoice unpaid for this reason.
If, prior to the delivery of the goods, damage has occurred as a consequence of the transport of the goods to be delivered by the user to the other party, the user shall redeliver goods identical to those that have been agreed as soon as possible. If a purchase of non-fungible goods has been made at the premises of the company, the other party shall revisit the premises of the company to further specify his choice of the available materials, equal to the type of material intended in the agreement.
In this case, the user is not responsible for the late delivery. If a delay in delivery times is caused by the late delivery of the goods to be delivered, the user is authorised to postpone the entire delivery or, at its discretion to deliver the goods in partial deliveries insofar as possible. Any liability for late delivery on the part of the user is excluded.
If, at the time of delivery, assistance is needed to unload the goods, the other party shall ensure that assistants are available, without the user having to pay the other party for the engagement of these persons.
8. Return shipments and complaints
Complaints shall be reported immediately on delivery. From the time when the goods are delivered to the other party, the other party is fully liable for any damage to the goods, which arises from improper care of those goods. The other party cannot appeal to the fact that the delivered goods are not in compliance with the agreement, where complaints regarding the colour and/or structure of the material is concerned.
All other complaints must be reported prior to the lapse of a period of 8 days, calculated from the time of delivery. In the event that the goods have been processed by the other party, the other party is not entitled to lodge a complaint prior to the lapse of the period of 8 days, because the other party can be deemed to have acknowledged, prior to processing the goods, that the delivered goods meet the requirements under the agreement. Therefore, where natural stone is concerned, colour differences can never be invoked; the risk of colour differences is borne by the other party. After the user has fulfilled that which it is required to deliver under the agreement, it cannot be held liable for any change in the delivered materials arising after the time of delivery, caused by processing or any other cause whatsoever.
Complaints shall never suspend the right to payment in accordance with the invoice. The user shall never be liable for any damage claims arising from complaints, neither to the other party nor to third parties in regard to whom the other party has undertaken to perform specific activities.
If, following a complaint, the other party fails to give the user the opportunity to still fulfil its obligations, the other party shall pay an amount equal to 40% of the invoice amount to the user for costs, damages and lost profits incurred.
9. General exclusion of liability and retention of title
If, contrary to these terms and conditions, the court rules that the user is liable for damage to the other party, the user stipulates now for then that the damage shall be limited to the invoice amount for the delivered goods excluding VAT. Therefore, the user can never, under any circumstances, be ordered to pay any amount in compensation that exceeds the invoice amount excluding VAT.
All goods delivered by the user emphatically remain its property until they have been paid in full. If the invoice amount has not been paid to the user within the agreed period and the user has not received payment after sending the other party a demand for payment, the user will be entitled to collect the goods from the other party or the person where the other party has stored them, and to take them back, simultaneously leaving a notice with the other party that the other party is put into default and that the agreement concluded between the parties is terminated. In such a case, the other party shall owe an amount equal to 40% of the invoice amount in costs, damages and loss of income.
The samples shown by the user to the other party are types of the goods to be delivered.
The other party cannot rely on the colour and/or structural differences in natural stone and/or other materials insofar as they do not completely match the sample. If the other party wishes to exclude exact colour and texture differences, it may do so by exclusively reserving the materials at the location of the company and changing the purchase into a purchase of non-fungible materials. This option is only available against immediate payment. A specific time can be agreed for the purchase and/or delivery, if simultaneous purchase is not possible for practical reasons.
To assess the quality of the goods, the description provided by the user in the quotation is decisive, or if confirmation has taken place following the quotation by means of an order confirmation, the description of the delivered goods in the order confirmation or a separate letter. Only the description of these goods is decisive. The other party cannot rely on other verbal or other requests for delivery and/or any other alleged agreements made before that time. If the other party has any doubt regarding the assessment of the question whether the goods meet the description, the other party shall immediately inform the user of such doubts, on pain of forfeiture of the right to complain. If the other party still uses or processes the delivered goods, the other party shall pay the agreed invoice amount and be deemed to appeal to a complaint and/or breach of contract since the other party will then be required to follow the complaints procedure described in the article referred to above.
Only the other party is liable to third parties with regard to the quality, and the user can never be held liable in this respect
GENERAL CONDITIONS OF SALE, DELIVERY AND TRADE