General conditions of sale, delivery and payment
Of the private company with limited liability KAPP NEDERLAND B.V., with its registered office in Spijkenisse and principal place of business in Dordrecht.
Article 1: Definitions
In these general terms and conditions, the following terms are used in the following sense, unless expressly stated otherwise:
- Kapp Nederland: user of these general terms and conditions, contractor, seller and installer;
- Client: other party besides Kapp Nederland’s, Client, purchaser;
- Agreement: the agreement concluded between Kapp Nederland and the Client;
- Offer: the written offer made by Kapp Nederland to the Client;
- Order: the Client’s written order to Kapp Nederland;
- Order confirmation: the written confirmation of the order by Kapp Nederland to the Client.
Article 2: General
2.1: These conditions apply to all activities of Kapp Nederland and to every quotation, assignment, offer and agreement between Kapp Nederland and the Client, and to every agreement that may result therefrom, insofar as the parties have not expressly deviated from these conditions in writing.
2.2: The applicability of any terms and conditions of the Client is expressly excluded.
2.3: These conditions shall apply to all subsequent agreements between Kapp Nederland and the Client, irrespective of whether they are explicitly declared applicable in such subsequent agreement and irrespective of whether the conditions were handed over prior to or on the conclusion of the relevant agreement.
2.4: If one or more of the provisions of these terms and conditions are invalid or may be annulled, the remaining provisions of these terms and conditions shall continue to apply.
Article 3: Quotations, offers, orders and agreements
3.1: All offers, in whatever form, are non-binding, unless the offer states a deadline for acceptance.
3.2: All price lists, brochures and other information supplied with an offer are non-binding. Kapp Nederland reserves the right to make alterations.
3.3: The prices given in the offers are in euros, exclusive of VAT and other government levies, fees, taxes, and exclusive of storage, shipping and any transport, repair, travel, assembly, and packaging costs, unless the parties have explicitly agreed otherwise.
3.4: If Kapp Nederland arranges for shipment of the purchased goods, Kapp Nederland will always separately charge the transport and packaging to the Client.
3.5: A composite quotation shall not oblige Kapp Nederland to perform part of the order for a corresponding part of the stated price.
3.6: Offers or quotations do not apply to follow-up orders.
3.7: An agreement with Kapp Nederland shall come into effect following the signing by both parties of an agreement drawn up for that purpose;
b) upon receipt and approval of the Client’s written acceptance of an offer made by Kapp Nederland;
c) in the absence thereof, by delivery to and acceptance of the goods by Client;
3.8: If the Client’s acceptance deviates from the offer given in the quotation, Kapp Nederland shall not be bound by it. The previous sentence shall also apply where the acceptance deviates from the quotation only in respect of minor points. The agreement will then not be concluded in accordance with this deviating acceptance, unless Kapp Nederland explicitly indicates otherwise in writing.
3.9: Kapp Nederland reserves the right to refuse an order without giving reasons.
3.10: In the case of verbal agreements, the invoice is deemed to reflect the agreement correctly and in full, subject to evidence to the contrary to be provided by the Client. Complaints need to be communicated within 14 days of the invoice date.
3.11: If a natural person concludes an agreement on behalf of or at the expense of another natural person or legal entity, he declares – by signing the contract – that he is authorised to do so and vouches for his power of representation or authorisation. In the event of no such authorisation being granted, the person concerned shall be obliged to compensate Kapp Nederland for all damage arising from any lack of authorisation to act on behalf of the other natural or legal person, unless and insofar as the other natural or legal person confirms and complies with the agreement.
Article 4: Client information
4.1: The Client shall at all times bear full and independent responsibility for the accuracy and completeness of the data, drawings, calculations, designs, process descriptions, process parameters, chemical and physical properties of the solid or liquid substances and raw materials or semi-finished products to be used or processed, as referred to in the application or as supplementary information. Kapp Nederland shall base its offer on the information provided by or on behalf of the Client and shall never be obliged to independently verify the accuracy and completeness of such information as referred to in the first sentence of this section.
Article 5: Models/images
5.1: If a model, demo, or picture has been shown to the Client, it is assumed to have been shown only as an indication, unless it has been explicitly agreed that the good to be delivered will correspond with it completely.
5.2: The models, illustrations, numbers, measures, weights, or descriptions contained in the catalogues/offers/advertisements/price lists are shown only as indications.
Article 6: Execution of the agreement/assembly/installation
6.1: Kapp Nederland shall perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. The above shall be based on the current state of knowledge in the Netherlands.
6.2: Kapp Nederland shall determine the manner of execution of the agreement, insofar as not explicitly agreed otherwise in writing by the parties.
6.3: Kapp Nederland shall never be liable for damage of any kind arising from the use by Kapp Nederland of incorrect and/or incomplete information as referred to in Article 4 of these Terms and Conditions, unless such incorrectness or incompleteness is so manifest that Kapp Nederland would be acting in bad faith in proceeding to execute the agreement without warning. The Client indemnifies the contractor against any third-party claim regarding the use of data as referred to in article 4 supplied by or on behalf of the Client, and regarding the functional suitability of materials and the like prescribed by the Client.
6.4: Kapp Nederland shall be entitled to have work performed or goods supplied by third parties for the performance of the Agreement. Kapp Nederland shall be entitled to accept the applicability of general terms and conditions of third parties with effect vis-à-vis the Client and may invoke the provisions contained in such general terms and conditions in respect to the Client.
6.5: If the Client has reserved the supply of certain materials and/or the execution of certain parts of the work for itself, the Client shall be liable for any failure to supply them on time or to execute them correctly.
6.6: The Client shall ensure that all data and approvals which Kapp Nederland indicates are necessary or which the Client should reasonably understand are necessary for the performance of the agreement are provided to Kapp Nederland in good time. If the data and approvals required for the performance of the agreement are not provided to Kapp Nederland in good time, it shall be entitled to suspend performance of the agreement and/or to charge the Client for the additional costs arising from the delay in accordance with the customary rates.
6.7: If it is agreed that the agreement shall be performed in phases, Kapp Nederland may suspend performance of those parts belonging to a subsequent phase until the Client has approved in writing the results of the preceding phase.
6.8: If commencement or progress of the work is delayed by factors for which the Client is responsible, the Client shall compensate Kapp Nederland for any resulting damage and costs.
6.9: If Kapp Nederland or third parties engaged by it carry out work within the framework of the assignment on the Client or a location designated by the Client, the Client shall provide the facilities reasonably required by those employees free of charge.
6.10: The Client shall ensure that Kapp Nederland has timely access to:
- the building where the work is to be carried out;
- sufficient opportunity for the supply, storage and/or removal of materials and resources;
- connection/power options for equipment.
6.11: The Client shall indemnify Kapp Nederland against any third-party claims which it may receive in connection with the performance of the agreement, and which are attributable to the Client.
Article 7: Transport and delivery
7.1: Kapp Nederland determines the method of transport and packaging, unless explicit written instructions are given by the client and accepted in writing by Kapp Nederland. If the Client has prescribed the method of transport and packaging, the Client shall bear responsibility for this.
7.2: Delivery of goods shall take place at Kapp Nederland’s Dordrecht warehouse, unless otherwise agreed.
7.3: If Kapp Nederland delivers the goods, this shall always be to the delivery address last known to Kapp Nederland by the Client.
7.4: The Client shall accept or receive the goods immediately upon completion. If the goods are available to the client or are offered for delivery to the client but are not accepted by the client for any reason whatsoever, delivery shall be effected by means of a written notification from Kapp Nederland, and from that moment the goods shall be at the client’s risk.
7.5: If the Client refuses delivery or fails to provide information or instructions necessary for delivery, or if the agreed (instalment) payment has not yet been made by the Client or if the security required by Kapp Nederland for delivery has not been provided, Kapp Nederland shall be entitled to store the goods at the Client’s risk and expense. If the Client fails to accept delivery within three weeks and fulfil all the pertaining conditions, Kapp Nederland is entitled to dissolve the agreement and sell the goods to a third party. If this is not possible or fails despite reasonable efforts, Kapp Nederland shall be entitled to destroy the goods. Any damage sustained by Kapp Nederland as a result of storage of the goods at Kapp Nederland’s risk and expense or any damage sustained by Kapp Nederland as a result of dissolution through sale to a third party or destruction shall be borne by the Client, plus the costs of transport and storage and the premiums for any insurance taken out, without prejudice to the right to payment of statutory interest.
7.6: If Kapp Nederland requires information from the Client in connection with the performance of the agreement, the delivery time shall commence after the Client has made this information available to Kapp Nederland.
7.7: Delivery times and/or periods of delivery are always approximate. Where Kapp Nederland has specified a delivery period or calendar date, this shall at all times be indicative. A specified delivery time is therefore never a deadline.
Article 8: Completion, examination, complaints
8.1: The Client is obliged to inspect the goods purchased or the work carried out (or have them inspected) at the time of delivery. Complaints about the delivered goods must be notified in writing to Kapp Nederland within eight days. The complaint must contain as detailed a description as possible of the alleged shortcoming, enabling Kapp Nederland to respond adequately.
8.2: If the Client fails to notify Kapp Nederland in writing of any complaints within eight days, it shall be deemed to have unconditionally accepted the product supplied.
8.3: The work shall furthermore be deemed to have been completed if the delivered goods have been placed at the disposal of Principal in a fully operational condition or have been taken into use by Principal, with effect from the earlier of the two dates.
8.4 The following situations can never give rise to any claims:
- deviations in colour, weight and size of less than 10%;
- deviations due to printing, typing, or writing errors in the catalogue/internet site/offer/price list.
8.5: Kapp Nederland will deal with the complaint immediately after it has been reported.
8.6: In the event of a timely complaint, the Client shall remain obliged to purchase and pay for the goods purchased. Should the Client wish to return defective goods, he/she shall do so only with Kapp Nederland’s prior written consent. Returns must be sent carriage paid, in undamaged condition and original packaging.
8.7: If a complaint is well-founded, Kapp Nederland shall repair or replace the product delivered, unless this has become demonstrably pointless for the Client in the meantime.The latter must be communicated by the Client in writing. In all cases, however, Kapp Nederland shall only be liable within the limits of the provisions of the articles “Guarantee” and “Liability”. Repair or replacement work, or compensation for the cost of repair or replacement work by Kapp Nederland to the Client, shall take place at the place of delivery pursuant to the agreement between Kapp Nederland and the Client or be calculated on the basis of repair or replacement work at the agreed place of delivery. Any (additional) costs incurred by Kapp Nederland and/or the manufacturer in carrying out repairs or replacement at a location other than the agreed delivery location shall be borne by the Client, and Kapp Nederland shall never be obliged to reimburse the Client for these additional costs if repairs or replacement are carried out by the Client or a third party on the Client’s instructions.
8.8: If the complaint is unfounded, Kapp Nederland shall be entitled to charge the Client all costs reasonably incurred in handling the complaint, including the costs of internal file handling, extrajudicial and/or attorney fees and costs of third-party investigations.
Article 9 Transfer of Risk
9.1: If the Client refuses to accept the goods or fails to meet all the conditions for delivery, Kapp Nederland’s claims against the Client, including the costs of transport and storage, shall become immediately due and payable.
9.2: The risk of loss of or damage to the goods that are the subject of the agreement shall pass to the Principal at the moment at which these goods are legally and/or actually delivered to the Principal and thereby come under the Principal’s control or under the control of a third party designated by the Principal or at the moment at which the goods are ready for delivery, all this after the Principal has been informed of it in writing.
9.3: If Kapp Nederland arranges for the transport and/or insurance of the goods that are the subject of the agreement, this shall take place entirely at the Client’s expense and risk.
Article 10: Retention of title
10.1: All materials and other items delivered by Kapp Nederland, whether processed or unprocessed, shall remain the property of Kapp Nederland until such time as the Client has fulfilled all his obligations under all agreements concluded with Kapp Nederland.
10.2: The Client is obliged, on Kapp Nederland’s first request, to inform the Client’s (end) customer in writing that Kapp Nederland has retained full ownership.
10.3: The Client is not authorised to sell, pledge, or encumber in any other way the goods falling under the retention of title.
10.4: Goods delivered by Kapp Nederland which are subject to retention of title pursuant to paragraph 1 of this article may only be sold on within the framework of normal business operations and may never be used as a means of payment.
10.5: If third parties levy an attachment on the goods delivered subject to retention of title or wish to create or assert rights over them, the Client shall be obliged to notify Kapp Nederland of this as soon as possible and to inform the third parties concerned that Kapp Nederland is the owner of the goods in question and to do everything possible to prevent or lift such an attachment or rights.
10.6: If Kapp Nederland wishes to exercise its property rights as referred to in this article, the Client hereby unconditionally and irrevocably authorises Kapp Nederland or a third party appointed by Kapp Nederland to enter all those places where Kapp Nederland’s property is located and to repossess the goods in question, and the Client shall cooperate fully in repossessing the goods.
Article 11: Force majeure
11.1: The parties are not obliged to comply with any obligation if they are prevented from doing so due to a circumstance that cannot be attributed to gross negligence or intent on the part of the party relying on this and for which they cannot be held accountable by virtue of the law, a juristic act, or generally accepted views.
11.2: In these terms and conditions, force majeure shall be understood, in addition to its meaning in law and jurisprudence, to include all external causes, foreseen or unforeseen, over which Kapp Nederland has no influence, but which prevent Kapp Nederland from being able to comply with its obligations. Strikes at Kapp Nederland or its suppliers, computer and power failures, traffic congestion, adverse weather conditions, import and export restrictions, theft, fire and stagnation in the delivery of goods and parts by suppliers shall be included.
11.3: The parties may suspend their obligations under the agreement during the period of force majeure. If this period lasts longer than three months, either party shall be entitled to dissolve the agreement without any obligation to pay the other party damages.
11.4: Insofar as Kapp Nederland has already partially fulfilled its obligations arising from the agreement at the time when force majeure commenced or will be able to fulfil them and insofar as independent value can be attributed to the part already fulfilled or still to be fulfilled, Kapp Nederland shall be entitled to separately invoice the part already fulfilled or still to be fulfilled.
Article 12: Suspension and dissolution
12.1: Kapp Nederland is authorised to suspend fulfilment of the obligations if:
- Kapp Nederland has good reason to fear that the Client will not fulfil his obligations or will not do so on time or in full, should circumstances come to Kapp Nederland’s attention after the conclusion of the agreement. If there are good grounds for fearing that the Client will only partially or improperly fulfil his obligations, suspension shall be permitted only insofar as the shortcoming justifies such action;
- the Client was requested to provide security for the fulfilment of his obligations arising from the Agreement when it was concluded or afterwards, and that security is not provided or is insufficient. Article 7.5 of these terms and conditions shall apply accordingly.
12.2: Kapp Nederland shall be entitled to dissolve the agreement if the Client fails to fulfil his obligations under the agreement or fails to fulfil them in full on the agreed date, or if, in the absence of a specified date for fulfilment, despite having been given a reasonable period of no more than three weeks to do so by Kapp Nederland, he fails to fulfil his obligations under the agreement in full within the specified period.
12.3: Kapp Nederland shall also be entitled, in the event that Kapp Nederland has suspended compliance with its obligations pursuant to the provisions of article 11.1 to dissolve the Agreement if:
a. the Client failed to put an end to the facts and circumstances that led to the suspension within the maximum period of three weeks stipulated by Kapp Nederland; and/or
b. if the Client fails to provide security for compliance within a reasonable term set by Kapp Nederland, which term shall not exceed three weeks;
12.4: In the event that the agreement is dissolved, Kapp Nederland’s claims for compensation against the Client shall fall due immediately. If Kapp Nederland suspends fulfilment of its obligations, it shall retain its rights under the law and the agreement, without prejudice to Kapp Nederland’s right to compensation from the Client for all damage and costs incurred or to be incurred as a result of the suspension.
Article 13: Cancellation
13.1: If, after the agreement has been concluded, the Client decides to cancel the agreement, he shall be liable to pay Kapp Nederland at least 25% of the agreed price, without prejudice to Kapp Nederland’s right to additional compensation including loss of earnings if the damage suffered by Kapp Nederland exceeds 25% of the agreed price.
13.2: Cancellation shall be effected by registered letter.
Article 14: Price, price increases, additional work, and cost-increasing circumstances
14.1: All quotations issued by Kapp Nederland are subject to contract unless the parties have agreed otherwise. These quotations apply to delivery from Kapp Nederland’s warehouse in Dordrecht.
14.2: Kapp Nederland shall be entitled to compensation for additional work or increased costs of performance if:
a. Kapp Nederland shall not be liable for any loss or damage sustained by the Client or any person acting on the Client’s behalf as a result of any additions or changes to the work, unless the Client should have understood the need for such a change on his own initiative;
b. if, after conclusion of the agreement, cost-increasing circumstances arise or come to light without Kapp Nederland being to blame, and Kapp Nederland has warned the Client as soon as possible after the cost-increasing circumstances arise or come to light that this is necessary.
Errors and/or incompleteness in the information provided by Client as referred to in Article 4 shall at all times be attributed to Client.
14.3: Kapp Nederland is entitled to pass on price increases occurring after the quotation is issued, if between the time of the offer or quotation and implementation of the agreement/delivery of the goods, price changes of more than 5% have occurred regarding, for example, social security contributions, sales tax, exchange rates, wages, raw materials, semi-finished products, or packaging materials.
14.4: The prices of Kapp Nederland will be adjusted annually with an inflation correction.
14.5: Kapp Nederland shall notify the Client in writing of its intention to increase the price or rate. Kapp Nederland will state the extent of the increase and the date on which it will take effect.
14.6: Obvious errors in pricing and/or invoicing that can be demonstrated on the basis of a valid price list may also be corrected and passed on by Kapp Nederland at a later date.
Article 15: Payment and security
15.1: Payment shall be made in cash on delivery, or within 30 days of the invoice date to a bank account number specified by Kapp Nederland and in the currency of the invoice, unless the parties have expressly agreed otherwise in writing.
15.2: Kapp Nederland shall at all times be entitled, prior to performance of the agreement or delivery of goods, to demand that the Client provide satisfactory security for performance of the agreement, including additional interest and expenses to which Kapp Nederland is entitled under the agreement, these conditions and/or the law.
15.3: Objections to invoices must be notified to Kapp Nederland in writing, with reasons, within 14 days of the invoice date. If Client fails to do so, Client shall be deemed to have accepted the invoice. Objections to the invoice shall not suspend the payment obligation. Any right to suspend or set off invoices owed to Kapp Nederland is expressly excluded.
15.4: If the Client fails to make payment within the agreed period, the Client shall be in default by operation of law. In that event, the Principal shall owe an interest of 1.5% per month or part thereof, unless the statutory interest or the statutory commercial interest is higher, in which case the highest interest shall apply. The interest on the amount due and payable shall be calculated from the moment that the Client is in default until the moment of payment of the full amount.
15.5: In the event of Client’s liquidation, (application for) bankruptcy, placement under guardianship, death, admission of the Client to statutory debt rescheduling pursuant to the Natural Persons Debt Rescheduling Act (Wet Schuldsanering Natuurlijke Personen), seizure or (provisional) suspension of payment, any claims which Kapp Nederland may have against the Client shall become immediately due and payable.
15.6: Payments shall first be applied to reduce the costs, then the interest due and finally the principal sum and the current interest.
Article 16: Collection costs
16.1: If the Customer is in default or breach of contract in the (timely) fulfilment of its obligations, all reasonable costs incurred in obtaining satisfaction out of court shall be borne by the Customer. In any case, the Client owes collection costs in the event of a monetary claim. The collection costs amount to 15% of the amount due, with a minimum of €500.
16.2: If Kapp Nederland has incurred higher costs, which were reasonably necessary, they shall also qualify for reimbursement. Judicial and execution costs shall also be borne by the Client.
Article 17: Warranty
17.1: Goods delivered by Kapp Nederland shall meet the technical requirements and specifications specified by the manufacturer of the goods.
17.2: Kapp Nederland provides a warranty to the direct customer, with respect to the installation and parts for a period of 12 months after delivery, unless the parties agreed on another term in writing.
17.3: A guarantee must be agreed in writing.
17.4: This guarantee is always limited to:
- manufacturing faults, which does not include any damage as a result of improper, careless or incompetent use/maintenance or non-compliance with the user manual or maintenance instructions by the Customer or a third party;
- manufacturer’s warranty;
- deliveries to customers in the EU;
- to repair or replace the delivered item.
17.5: This warranty is void:
- in case of resale of the delivered goods, unless parties have explicitly agreed otherwise;
- in the event of processing, modification, mixing, alteration or repair by the Client or a third party to or of the delivered goods;
- if the purchased item is not maintained or inspected annually.
17.6: As long as the Client does not fulfil his obligations arising from the agreements concluded by the parties, he cannot invoke this guarantee provision.
Article 18: Liability and indemnity
18.1: Should Kapp Nederland be liable for direct damage, then this liability shall be limited to what is regulated in this provision.
18.2: In the event of defective goods delivered by Kapp Nederland, Kapp Nederland’s liability to the Client shall be limited to that which is stated under “Guarantee” in these conditions.
18.3: Kapp Nederland shall never be liable for:
- deviations, damage, faults and defects that have remained unnoticed in items approved by the Client;
- deviations, damage, faults and defects due to incorrect assembly or use by a Client or a third party;
- for indirect damage, including consequential damage, loss of turnover and profit, missed savings and damage due to business interruption;
- damage as a result of rejected raw materials, due to changes in environmental legislation after the conclusion of the agreement;
- damage as a result of unlawful, improper or unprofessional use by the Client or third party of the delivered goods or failure to comply with the instructions for use.
18.4: Where Kapp Nederland is liable for damage, and the incident on which the liability is based is covered by insurance, the liability shall be limited to the amount of the payment actually made by Kapp Nederland’s insurer, or at any rate, Kapp Nederland’s liability shall be limited to the amount of the invoice, or at least that part of the invoice to which the liability relates.
18.5: Any claims for compensation must be submitted in writing to Kapp Nederland immediately after the occurrence of the damage.
18.6: The Client should investigate in advance whether the product supplied is suitable for the purpose for which it is to be used. If it subsequently transpires that what was delivered is not suitable for the purpose, the Client cannot hold Kapp Nederland liable for any ensuing damage.
18.7: The limitations of liability for damage contained in these general terms and conditions shall not apply if the damage is due to intent or gross negligence on the part of Kapp Nederland or its subordinates.
18.8: The Client shall indemnify Kapp Nederland against third-party claims for damage for which Kapp Nederland has excluded its liability.
Article 19: Intellectual property and copyrights
19.1: Notwithstanding the provisions of these general terms and conditions, Kapp Nederland reserves the rights and powers vested in it pursuant to intellectual property law and the Copyright Act.
19.2: All goods sold and/or produced by Kapp Nederland, as well as designs, sketches, drawings, files and brochures provided, are intended solely for use by the Client and may not be reproduced, resold, processed, altered, copied, reproduced, published or disclosed to third parties without the prior consent of Kapp Nederland, unless the nature of the goods sold or documents provided dictates otherwise.
Article 20: Translations of these conditions
Only the Dutch-language version of these terms and conditions is authentic. If a translation deviates in any way, the Dutch text shall prevail.
Article 21: Disputes
21.1 All disputes arising from the agreement concluded between the parties concerning the conclusion, interpretation, performance or otherwise of the agreement, as well as all other disputes between the parties, shall in the first instance be settled by the competent court in Rotterdam. Kapp Nederland shall nevertheless be entitled to submit the dispute to the court with jurisdiction under the law.
21.2 There is a dispute if one of the parties has expressly so stated.
Article 22: Applicable law
All agreements between Kapp Nederland and the Client shall be governed by Dutch law. The Vienna Sales Convention is expressly excluded.
Article 23: Deposit
These terms and conditions were filed at the registry of the Rotterdam District Court on 4 March 2015 under number AL 17/2015.