TERMS AND CONDITIONS
- In these terms and conditions ''Kemeling'' means: Kemeling Kunststoffen B.V. having its registered office in Naaldwijk and its place of business in (2671 CV) Naaldwijk at Slachthuisstraat no.7.
- In these terms and conditions "Customer" means: the natural person or legal entity that has entered into an agreement with Kemeling in connection with the provision of services and/or goods by Kemeling.
- In these terms and conditions "parties" shall be understood to mean: Kemeling and the Customer
- In these terms and conditions "agreement" means: any agreement between the Purchaser and Kemeling for the provision by Kemeling of services and/or goods for the benefit of the Purchaser.
- In these terms and conditions "work" means: all work for which the Customer has given Kemeling an order, or which results from, or is directly related to, the order, in the broadest sense of the word.
- In these terms and conditions "Website" means: www.kemeling.nl.
Article 2 - Accessibility
- These general terms and conditions apply to all quotations from, orders to and agreements with Kemeling.
- Announcement of these general terms and conditions is possible by mentioning (behind) on letterhead, offer, order confirmation, e-mail, invoice and on the website.
- The possible applicability of general terms and conditions used by the Customer is hereby expressly rejected.
- With regard to matters that Kemeling has obtained from third parties, the (contract and/or guarantee) provisions applicable to the relevant transactions will also apply to the agreement between Kemeling and the Customer, if and insofar as Kemeling invokes this.
- Any voidability or nullity of a provision of the agreement and/or these general terms and conditions will not affect the validity of the remaining part of the agreement and/or these general terms and conditions. Instead of the nullified part is then agreed what comes closest in a legally permissible manner to what the parties would have agreed if they had known the nullity.
Article 3 - Offers
- All offers, quotations, cost estimates etc. made by Kemeling, whether verbally, in writing, by telephone, via the Internet, by e-mail, app or in any other way, are entirely without obligation and can therefore be revoked by Kemeling, even immediately after the Customer has accepted the offer.
- All information and/or specifications provided with an offer, quotation, etc. are always approximate and are only binding on Kemeling if expressly confirmed in writing with those words.
- If an offer etc. made by Kemeling is not followed by a written unconditional acceptance within 30 days or a specified other period, it will automatically lapse.
Article 4 - Contracts
- An agreement between the parties is concluded at the moment Kemeling confirms the Customer's order in writing (or by e-mail) or at the moment Kemeling commences performance of the Agreement, whichever is earlier.
- If, in the case of a delivery by Kemeling, no (written) offer has been made, the delivery note / invoice will be deemed to correctly reflect the content of the Agreement in question. The Buyer declares to agree in advance with the contents of the aforementioned delivery note / invoice, subject to proof to the contrary.
- Agreements with subordinate employees or other (between - or auxiliary) persons of Kemeling do not bind Kemeling insofar as these agreements have not been confirmed in writing by the management of Kemeling.
- Additional agreements or amendments to the agreement shall only be binding on Kemeling if they have been confirmed in writing or by e-mail.
- Kemeling's written confirmation or e-mail is deemed to reflect the agreement correctly and completely, subject to evidence to the contrary.
- Kemeling will not be liable for any misunderstandings, delays or improper transmission of data and communications as a result of the use of any means of communication between Kemeling and the Customer or between Kemeling and third parties, insofar as these relate to Kemeling and the Customer, except in the event of intent or gross negligence on the part of Kemeling.
- If Kemeling enters into an agreement with two or more persons or legal entities, each of these (legal) entities will be jointly and severally liable for the fulfilment of the obligations arising for them from that agreement towards Kemeling.
- Kemeling reserves the right to dissolve the concluded agreement in whole or in part without judicial intervention, if the Customer applies for (provisional) suspension of payments, if the Customer's bankruptcy is applied for, if the order cannot reasonably be completed or can no longer be completed, or if the Customer is negligent in providing information which Kemeling requires from the Customer or which Kemeling needs in the context of the agreement concluded. If the agreement is dissolved by Kemeling on one of the aforementioned grounds, the Purchaser will owe Kemeling compensation for the costs incurred and loss of profit of 25% of the agreed fee with a minimum of EUR 500. In addition, the Customer will reimburse all other costs incurred by Kemeling in the preparation or completion of the performances to be delivered by it, as well as all other damage suffered by Kemeling. Insofar as Kemeling dissolves (on the basis of one of the aforementioned grounds) the agreement concluded between the parties, it will not be obliged to pay any compensation or damages to the Customer for any reason whatsoever.
- The Customer's right to the completion of the agreement is not transferable without Kemeling's prior written consent.
Article 5 - Delivery and delivery time
- The delivery periods specified by Kemeling are based as far as possible on the circumstances prevailing at the time of the conclusion of the agreement. However, they are never binding or fatal. Additional agreements, changes or external circumstances beyond Kemeling's control may lead to an extension of the time schedule agreed by the parties.
- Exceeding by Kemeling of agreed delivery periods does not entitle the Customer to dissolve the agreement, unless Kemeling is in default for more than 60 days.
- The Purchaser will purchase the goods and/or services as soon as Kemeling offers them. If the Customer fails to comply with the aforementioned obligation, Kemeling may, without prejudice to its authority to demand compliance, dissolve the agreement.
- The goods sold by Kemeling will be delivered from Kemeling's business or storage space. The risk is transferred to the Buyer as soon as the goods have left the business or storage space or as soon as the goods have been separated on behalf of the Buyer and it has been notified or sent that the purchased goods are ready for delivery. The transport risk is for the Customer, unless agreed otherwise in writing.
Article 6 - Prices
- The agreed prices are exclusive of VAT unless explicitly stated otherwise.
- Kemeling reserves the right to pass on to the Customer any changes in cost price determining factors which occur after the date of the offer or order confirmation and on which Kemeling cannot reasonably exert any influence, such as, for example, an increase or increase in purchase prices, excise duties, social security charges, insurance payments, toll charges, shipping/transport costs or turnover tax, even if a certain price has been agreed.
- Possible transport costs, shipping costs, insurance costs and all other costs to be incurred in connection with the (dis)delivery will be explicitly mentioned in the written confirmation by Kemeling.
- Additional work is considered to be anything that Kemeling, in consultation with the Customer, whether or not established in writing, delivers and/or installs during the production of the agreement in excess of the quantities explicitly laid down in the agreement or the offer, or is performed by it in excess of the work explicitly laid down in the agreement or the offer.
Article 7 - Payment
- Payment must be made in advance, by transfer to the bank account indicated by Kemeling, unless stated otherwise.
- Payments will be made in Euro, unless stated otherwise.
- The customer will not suspend or set off payment to Kemeling.
- The customer is, without notice of default being required, in default by the mere expiry of the payment term.
- During the period of its default, the Purchaser shall owe default interest of 1.5% per month or part of a month on the outstanding claims. At the end of each year, the amount on which the default interest is calculated is increased by the interest due for that year.
- In the event of extrajudicial and judicial recovery work, the Purchaser will owe Kemeling, in addition to the principal sum and the default interest, the collection costs and legal costs actually incurred by Kemeling.
- If the Purchaser is in default with any payment, Kemeling may suspend its performance, or dissolve the agreement without judicial intervention.
Article 8 - Customer details
- The Customer's details will be included in Kemeling's files. These data will only be used for the production of the Customer's order.
- Insofar as personal data are processed in the context of the production of the work, these personal data will be processed in a proper and careful manner and in accordance with the General Data Protection Regulation.
- The Purchaser may at all times inspect its data contained in Kemeling's files and request changes. Such a request can be submitted by e-mail (firstname.lastname@example.org).
- The Customer indemnifies Kemeling against any claim and any claim from third parties, however named and on whatever grounds, including but not limited to claims for the payment of damages, costs and penalties, relating to the processing and/or storage and/or use of personal data in the context of the production of the agreement.
Article 9 - Retention of title
- Kemeling retains title to all goods it has delivered to the Customer until the purchase price for all these goods, including future goods, has been paid in full. Furthermore, the retention of title applies to claims which Kemeling acquires against the Customer on account of the Customer's failure to fulfil one or more of its other obligations towards Kemeling.
- The Customer will keep the goods delivered under retention of title carefully and as always recognisable property of Kemeling. The Customer will insure the goods against all usual risks for the duration of the retention of title. The Purchaser hereby authorises Kemeling, on behalf of the Purchaser, to (quietly) pledge to itself all its claims against the insurers pursuant to the aforementioned insurances within the meaning of Article 3:239 of the Dutch Civil Code, as additional security for Kemeling's claims against the Purchaser.
- If the Purchaser fails to fulfil its payment obligations towards Kemeling or if Kemeling has good reason to fear that it will fail to fulfil its obligations, Kemeling may at any time take back (or have taken back) the goods delivered subject to retention of title. After repossession, the Purchaser will be credited for the market value (on the basis of purchase price), which can in no case be higher than the original purchase price, less the costs incurred in repossessing the goods.
Article 10 - Information and public measures
- The Purchaser will provide Kemeling in a timely manner with correct and complete information relating to the items to be produced by Kemeling for the benefit of the Purchaser under the agreement, including but not limited to high-quality drawings, calculations, all applicable laws and regulations, standards and norms, guidelines and codes (and any licences) and other relevant information. The Purchaser indemnifies Kemeling against any and all claims of third parties, however named and on whatever grounds, in connection with the foregoing. All consequences - fines, damages and the like - as a result of or arising from the failure to provide the information referred to in the first paragraph of this Article (in a timely manner) will be for the account of the Purchaser.
- The Purchaser warrants to Kemeling that it will obtain and retain in good time all permits required (by the government) for the work to be carried out and for the normal manner of carrying out the work. The Purchaser further guarantees to Kemeling that the applicable (inter)national laws and regulations, standards and norms, guidelines and codes, including all applicable laws and regulations, including those relating to international trade, such as embargoes, import and export restrictions and sanctions lists, and including laws and regulations relating to combating and preventing child labour, corruption, slavery, poor working conditions and terrorism, will not impede the performance of the agreement. The Purchaser indemnifies Kemeling against any claim and any claim from third parties, however named and on whatever grounds, in connection with the foregoing.
- All consequences - fines, damages and the like - as a result of or arising from the failure to provide the information referred to in the first and second paragraphs of this Article (in a timely manner) will be for the account of the Purchaser.
- All consequences caused by the non-functioning of equipment made available by the Customer or (preparatory) work not carried out correctly by the Customer, including but not limited to the provision of correct and complete information, will be at the Customer's expense.
Article 11 - Intellectual property rights
- Unless otherwise agreed in writing, Kemeling retains the copyrights and all other intellectual property rights to the examples, calculations, models, designs, working methods, advice and products made and provided by it. These items remain the property of Kemeling and may not be copied, reproduced, shown to third parties or used in any other way without its express permission, regardless of whether costs have been charged to the Customer. The Customer will return these items to Kemeling upon first request.
- In the event of an infringement of the provisions of the first paragraph, the Customer will forfeit a penalty of EUR 10,000 for each infringement and for each day that an infringement lasts, including a part of the day, without prejudice to any other rights Kemeling may have, for example to prohibit the infringement and to claim damages.
- The Purchaser shall indemnify Kemeling against any action based on the allegation that the copyrights and other intellectual property rights developed by Kemeling itself infringe a valid intellectual property right of third parties.
Article 12 - Guarantees, investigations and complains
- The goods to be delivered by Kemeling shall meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended under normal use in the Netherlands.
- If the guarantee provided by Kemeling concerns a good produced by a third party, the guarantee shall be limited to that provided by the producer of the good, unless stated otherwise. If calculations with regard to the delivered goods are based on a certain period of time, that period of time shall not be deemed to be the guarantee period.
- Any form of guarantee will lapse if a defect has arisen as a result from injudicious or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Customer and/or by third parties when, without Kemeling's written permission, the Customer or third parties have made changes or attempted to make changes to the item, other items have been attached to it that should not be attached to it or if they have been processed or treated in a manner other than prescribed. Nor is the Customer entitled to a guarantee if the defect has arisen as a result of circumstances beyond the control of Kemeling, including weather conditions and dynamic use of the delivered goods by the Customer (such as, for example, on trucks and ships).
- The Customer shall check the delivered goods immediately upon delivery for any deviations from what has been agreed.
- Any complaints must be submitted to Kemeling no later than within 14 days after actual delivery, in the absence of which the Customer will be deemed to have irrevocably and unconditionally accepted the delivered/performed goods.
- Any right to complain will lapse if and as soon as the Customer uses the delivered goods for a purpose other than that for which they are suitable according to objective standards or uses them for a purpose other than that which Kemeling could reasonably assume would be used or acts (or fails to act) contrary to the instructions for use.
- Kemeling is only obliged to take cognizance of complaints submitted if the Customer has fulfilled all its contractual obligations towards Kemeling, for whatever reason. The Customer will not be able to suspend or set off its obligations in connection with a complaint submitted by it.
- If the Customer's complaints, also in view of the above provisions, are well-founded, Kemeling will, after consultation with the Customer, arrange for the redelivery of a good or service of the same or a similar kind within a reasonable period of time. The Customer will transfer the replaced goods or parts or documents provided in connection with the service to Kemeling upon request, or keep them for inspection for a reasonable period of time.
- If the Customer's complaints are well-founded, also in view of the above provisions, but it is not possible to redeliver the item or service within a reasonable period of time, Kemeling will be entitled to deliver an item or service of the closest kind or to apply a reasonable price reduction.
Article 13 - Liability
- In the event of shortcomings, Kemeling is not liable, except for its wilful misconduct or gross negligence, for trading loss, property damage, personal injury or any other damage whatsoever, which is directly or indirectly caused to the Customer and/or third parties. Kemeling is at most obliged to redeliver the item or service or, if delivery is no longer reasonably possible, to apply a reasonable price reduction.
- Any liability on the part of Kemeling is limited to the damage which was foreseeable as a possible consequence of the act obligating it to pay compensation, up to a maximum of the amount paid out in the case in question under its liability insurance policy, increased by the amount of the deductible which, according to the policy conditions, is not at the expense of the insurer. If, for whatever reason, no payment is made under the said insurance, any liability shall be limited to the net amount invoiced by Kemeling for the matter or case in question.
- Without prejudice to the provisions elsewhere in these Terms and Conditions, Kemeling shall never be liable for goods and/or services it has purchased from third parties beyond the extent that these third parties are liable to Kemeling and offer recourse.
- Kemeling will not be liable (I) if the Customer has not promptly reported the damage to Kemeling in writing within 14 days after it has observed or could have observed it; or (II) if the Customer has acted contrary to the instructions for use.
- Kemeling stipulates all statutory and contractual defences which it can invoke to defend its own liability towards the Customer, also on behalf of its subordinates and non-subordinates for whose conduct it would be liable under the law.
- Without prejudice to the other provisions of this article and these general terms and conditions, any (legal) claims must be brought before a court no later than 1 year after delivery of the performance, on pain of forfeiture.
Article 14 - Indemnification
- The Purchaser shall fully indemnify Kemeling against any form of liability which Kemeling may incur in respect of third parties with regard to goods delivered or services rendered by Kemeling, insofar as such liability is not incumbent on Kemeling pursuant to these terms and conditions.
- If Kemeling should be held liable by third parties on that account, the Customer is obliged to assist Kemeling both out of court and in court and to do without delay everything that may be expected of it in that case. Should the Customer fail to take adequate measures, Kemeling will be entitled to do so itself. All costs and damage incurred on the part of Kemeling and third parties as a result will be fully at the expense and risk of the Purchaser.
Article 15 - Force majeure
- Force majeure (non-attributable shortcoming) is understood to mean: any circumstance independent of the will of the parties, possibly unforeseeable, as a result of which fulfilment of the agreement cannot reasonably be demanded (any longer) from Kemeling by the Customer.
- Force majeure of Kemeling is in any case understood to mean: strike, excessive absenteeism due to illness of Kemeling's personnel, fire, sabotage, government measures, internet, computer and telephone failures at Kemeling, unusual price increases, problems at suppliers, carriers and involuntary disturbances or hindrances as a result of which the performance of the agreement becomes more expensive and/or problematic, such as storm damage and/or other natural disasters, as well as breach of contract (attributable breach) by auxiliary persons of Kemeling or the Customer, as a result of which Kemeling cannot (any longer) (timely) fulfil its obligations towards the Customer.
- If a situation of force majeure arises, Kemeling may suspend the production of the agreement or dissolve the agreement; the Customer may also do so, but only after Kemeling has failed to fulfil its obligations 60 days after notice of default. In the event of dissolution in the event of force majeure, Kemeling shall not be liable to pay any compensation.
Article 16 - Applicable law and disputes
- All legal relationships between the parties are subject exclusively to Dutch law.
- Disputes will be exclusively settled by the (Interim Injunction Judge of the) District Court of Rotterdam.