GENERAL TERMS AND CONDITIONS
Of the Private Company with limited liability KiwiHesta B.V., having its registered office and principal place of business at Avignonlaan 27, 5627GA Eindhoven, as established on 24 August 2017 and further deposited with the Chamber of Commerce and Industry in the Netherlands.
Eindhoven under file number 17239156.
Article 1 [Applicability]
1.1 These General Terms and Conditions apply to and form part of all offers/
offers and contracts for the purchase and sale or execution of work have been made, and
concluded by KiwiHesta B.V. , hereinafter referred to as “KiwiHesta B.V.”, whereby KiwiHesta B.V. is to be regarded as the seller and/or the contractor, with a counterparty.
1.2 Any of the other party’s own General Terms and Conditions shall not apply.
The General Terms and Conditions of KiwiHesta B.V. shall prevail at all times, except in the case of
insofar as conditions deviating from KiwiHesta B.V., including those of the other party, are expressly accepted in writing.
Article 2 [Offers]
2.1 All offers, regardless of whether they are made by separate offer or otherwise, are
The agreement is binding and revocable, unless explicitly stated otherwise in writing.
2.2 All information provided to the other party in connection with an offer [documents in the form of
price lists, selection programmes, brochures and other size specifications,
weight [product/material], properties and quantities] are approximate and bind
KiwiHesta B.V., unless explicitly stated otherwise in writing.
2.3 KiwiHesta B.V. expressly reserves the right, if an offer made by it is not accepted,
to charge the other party all reasonable costs in connection with the submission of the offer.
Article 3 [Agreement]
3.1 The agreement concluded shall be confirmed in writing by KiwiHesta B.V. This confirmation of the assignment shall be deemed to accurately and fully reflect the agreement, unless the other party objects to this in writing within 8 days. The above shall also apply to additional or different agreements.
3.2 If the implementation of the agreement by KiwiHesta B.V. requires the involvement of third parties, KiwiHesta B.V. shall be entitled to charge the costs involved to the other party in full.
Article 4 [Intellectual and industrial property rights, duty of care and confidentiality].
4.1 All documents [models, drawings, designs and the like] by KiwiHesta B.V., either in the context of an offer made by it or in the context of the work to be carried out [and/or].
If a contract [of commission] has been concluded with the other party, the exclusive right to use the contract [of commission] shall continue to apply.
the property of KiwiHesta B.V. in so far as it already existed at the time of the offer or at any time thereafter
its intellectual or industrial property rights (including copyright)
4.2 The other party is expressly forbidden, unless KiwiHesta B.V. has given its explicit written consent, to use, multiply or make available for inspection by third parties the documents referred to in the first paragraph other than for the purpose of implementing the agreement.
or made available to third parties.
4.3 The other party shall keep and monitor the data provided by KiwiHesta B.V. with due care.
4.4 The other party shall be obliged, even after termination of the agreement, to observe full confidentiality.
of the data and information provided to it by KiwiHesta B.V. in connection with the provision by KiwiHesta B.V. of the
The documents referred to in paragraph 1 become known. The other party must fulfil this obligation.
to any employees and/or assistants.
4.5 The other party is expressly obliged to indemnify KiwiHesta B.V. against costs and damage which have arisen as a result of the infringement of the intellectual and industrial property rights of
The other party shall not be liable for any loss or damage suffered by third parties as a result of the use by or on account of the provision of information by the other party.
4.6 The other party shall return to KiwiHesta B.V. immediately upon its first request the documents as referred to in paragraph 1 provided by KiwiHesta B.V., regardless of whether they were provided in connection with an offer made by KiwiHesta B.V. or in connection with an agreement concluded with KiwiHesta B.V..
4.7 The other party shall be liable to an immediately payable penalty for each breach of or failure to comply with the aforementioned provisions of this article, as the case may be.
The Supplier shall forfeit € 25,000 and furthermore for each day that the breach or non-performance continues,
forfeit an immediately payable penalty of € 10,000, all this without prejudice to the
right of KiwiHesta B.V. to full compensation.
Article 5 [Prices]
5.1 Any quotations given are always subject to price changes. Unless stated otherwise, the prices are based on the cost price applicable at the time of the agreement
applicable cost factors
such as applicable purchase prices of goods, raw materials, wages, levies and costs of
third parties], excluding VAT and including the normal costs of packaging[s]. Unless otherwise
The prices indicated are always expressed in euros.
5.2 In the event of an interim increase in the costs and/or levies as referred to in paragraph 1, including an increase in taxes, import duties, the entry into force of cost-increasing government regulations and a change in the currency in which the quotation was made, KiwiHesta B.V. shall be entitled to increase the prices accordingly, all this with due observance of any applicable statutory provisions.
Article 6 [Delivery]
6.1 Goods are always delivered ex works, unless otherwise agreed.
6.2 Unless explicitly agreed otherwise, on each delivery ex works the Incoterms
2000 shall apply.
6.3 The other party shall, at its own expense and risk, obtain an export and import permit or other
to obtain official authorisation and, where appropriate, to complete all customs formalities
for export of the goods.
6.4 The other party is obliged to pay for transport damage or visible defects immediately upon delivery.
check. Complaints in this respect must be made on the delivery note, the invoice and/or the transport document.
to be reported, in the absence of which these complaints will no longer be dealt with.
6.5 The delivery periods indicated by KiwiHesta B.V. shall always be regarded as approximate and shall not constitute strict deadlines within the meaning of the Act. The stated delivery periods are
only then in when an agreement has been concluded, as well as about all technical
details and after KiwiHesta B.V. has also received the documents, information, goods and/or permits necessary for the execution of the work and suchlike.
6.6 KiwiHesta B.V. shall be entitled to deliver the goods in parts, which deliveries may be invoiced separately.
6.7 The other party shall bear the risk of any damage to the goods delivered from the moment that the goods are delivered.
on which the goods have been offered by KiwiHesta B.V. to the other party and have been accepted by the other party without complaints.
Article 7 [Payment]
7.1 Payment must be made in cash upon delivery. If payment is made on the basis of an invoice, then
to be paid within 30 days of the invoice date. All payments are made without right.
of suspension thereof or right of set-off. Terms of payment are considered to be strict deadlines.
7.2 Payments made by the other party shall always be applied to the payment of the oldest outstanding amount.
The other party’s claim on the other party and for payment of any interest and costs owed.
7.3 In the event of late payment, the other party shall be in default by operation of law. From the moment that the
KiwiHesta B.V. shall automatically, therefore without a notice of default being required, be entitled to a default interest of 1% per month or part of a month, whereby a part of a month shall be deemed to be a full month. The aforementioned default interest shall be calculated on the principal sum due. The other party shall owe the default interest until the day of payment in full.
The other party’s debts to KiwiHesta B.V. are bring-related debts.
7.4 If the other party fails to fulfil his payment obligation, or fails to do so on time, or fails to do so in full,
he shall also owe KiwiHesta B.V. all reasonable costs incurred to establish his liability and to obtain payment extrajudicially. These extrajudicial costs, which in that case can be regarded as financial loss, shall be fixed at a percentage of 15% of the outstanding amounts or the amount due, as the case may be,
one and the other without prejudice to KiwiHesta B.V.’s right to actually suffer and still suffer her
to claim property damage.
7.5 If KiwiHesta B.V. has doubts about the creditworthiness of the other party at all times, therefore also at the time of the execution of the agreement, KiwiHesta B.V. shall be entitled to demand adequate security for the payment of its claim or advance payment of its future claim and shall be entitled, also during the execution of the agreement, to demand the performance of
to suspend its obligations until the other party has provided the aforementioned security,
or made the advance payment. In the event of refusal or inability to provide
KiwiHesta B.V. shall be entitled to dissolve the agreement with immediate effect [without judicial intervention], without prejudice to its right to
to full compensation in that case.
Article 8 [Reservation of title].
8. The ownership of all movable property and/or services delivered by KiwiHesta B.V. to the other party shall not pass to the other party until the other party has complied with all of the following requirements
all agreements concluded and/or to be concluded with KiwiHesta B.V. have been complied with:
– the consideration(s) in respect of the movable property delivered or yet to be delivered by KiwiHesta B.V.;
– The consideration(s) in respect of the services delivered or to be delivered by KiwiHesta B.V.;
– Any claims for failure to comply with such agreements,
This includes compensation for damage, including interest and costs.
If the other party fails to fulfil the obligations referred to above, KiwiHesta B.V. shall be entitled to repossess its property or have it repossessed. Costs relating to the recovery of its property by KiwiHesta B.V. shall be borne by the other party.
The other party shall be obliged vis-à-vis third parties to report the fact that the ownership of KiwiHesta B.V.’s goods has been transferred to a third party.
of the goods in question shall rest with KiwiHesta B.V., while the other party shall not be entitled to any compensation in respect of the goods in question.
is authorised to process, dispose of, encumber and lease for as long as the retention of title lasts.
of KiwiHesta B.V. is based on it.
The other party shall be obliged to deliver the goods subject to retention of title with due care and diligence.
recognizable as being the property of KiwiHesta B.V..
Article 9 [Distance consumer purchase and distance contract for the performance of the contract
9.1 In the event of distance selling or a distance contract for the performance of a contract, the following applies
of services pursuant to Section 9a, Book 7 of the Dutch Civil Code, all goods and services to be provided by KiwiHesta B.V. shall be deemed to have been created or, as the case may be, to have been created.
to be carried out in accordance with the other party’s specifications.
9.2 With regard to the delivery periods relating to agreements as referred to in the first paragraph, Article 9.2 is applicable.
7:46f of the Dutch Civil Code does not apply. The following is expressly associated with the
Article 6 of these general terms and conditions.
Article 10 [Force Majeure]
10.1 If the agreement is found to be unenforceable as a result of force majeure or as a result of such force majeure, the following shall apply
If KiwiHesta B.V. considers that circumstances similar to those of a similar nature should occur, KiwiHesta B.V. shall have the right, at its discretion, to dissolve the agreement in whole or in part without being obliged to pay any compensation, or to dissolve the agreement in the event of a conflict between the two parties.
2.2 The Client is entitled to demand that the assignment be amended in such a way that the delivery of goods or services is
is still possible [with offsetting between the parties of the additional or reduced costs which are
from the modification of the commission, which costs will be charged to the client immediately after it has arisen.
are invoiced or credited and, in the case of invoicing, the payment is made in accordance with the
7] and/or the delivery of goods, or the services to be performed, takes place on the day of delivery.
to perform a later dot. The above shall not affect KiwiHesta B.V.’s right to payment in proportion to the goods already delivered and/or services rendered. The other party
has the right to dissolve the agreement in whole or in part if the following are irrefutable
it has been established that fulfilment on the part of KiwiHesta B.V. is permanently impossible as a result of the
are not available from the purchased business.
10.2 Without prejudice to the above, in the event of temporary force majeure KiwiHesta B.V. shall be entitled to suspend performance of the agreement for a maximum of six months, without being obliged to pay any compensation.
10.3 Force majeure shall in any case be understood to mean a non-attributable shortcoming, strikes, sit-down strikes, excessive absenteeism due to illness on the part of KiwiHesta B.V.’s employees, transport problems [which should in any case be understood to mean: import and export bans], quota restrictions and operational disruptions at KiwiHesta B.V. and/or at suppliers, stagnation problems on the part of
the suppliers, threat of war in which the Netherlands is involved or not, mobilisation, riots, government measures hindering the implementation of the agreement on the part of KiwiHesta B.V., fire, water damage, flooding, exceptional weather conditions and all other circumstances, whether or not within KiwiHesta B.V.’s company, which may or may not be present, The circumstances in which KiwiHesta B.V. has arisen through no fault of its own and as a result of which KiwiHesta B.V. is unable to fulfil its obligations.
Article 11 [Liability]
11.1 Except in the case of intent or gross negligence on the part of KiwiHesta B.V., KiwiHesta B.V. shall never be liable for any damage, direct or indirect, suffered by the other party. Liability in respect of loss of profits, indirect or consequential loss is therefore excluded.
11.2 In the event of liability, KiwiHesta B.V. shall only be obliged to repair a defective product free of charge, or to replace that product or part thereof, all this at the discretion of KiwiHesta B.V.
11.3 The other party expressly indemnifies KiwiHesta B.V. against all claims by third parties in respect of goods delivered by KiwiHesta B.V. or work carried out by KiwiHesta B.V. as a result of which those third parties may have suffered damage, irrespective of the cause or time for which the damage in question was caused or suffered.
Article 12 [Cancellation and complaints]
12.1 In the event that the other party cancels an order, or wishes to renounce the purchase as yet
of a purchased good or to make use of a service, after the creation of the
If the Supplier fails to comply with the terms of the agreement, KiwiHesta B.V. shall be entitled to compensation amounting to 60% of the agreed price, without prejudice to KiwiHesta B.V.’s right to compensation for the entire damage, if this exceeds the above-mentioned percentage.
12.2 Complaints relating to invoices must be submitted in writing within 8 days of receipt of the invoice to
KiwiHesta B.V.. Complaints [by virtue of the guarantee referred to in Article 13]
with regard to goods delivered, all this except insofar as the situation as referred to in Article 2(1)(b) and (c) of these General Terms and Conditions applies.
6.4 and relating to the quality of the delivered goods, materials and the manner in which the work is to be carried out must be submitted within fourteen days of the date on which the work is to be carried out.
the discovery of the defect, to be reported to KiwiHesta B.V. in writing, accurately stating the nature of the complaints. The other party’s right to hold KiwiHesta B.V. liable for an attributable shortcoming shall lapse after one year.
12.3 The other party shall give KiwiHesta B.V. the opportunity to inspect the above in order to ascertain whether or not the complaint submitted is well-founded. If a complaint proves to be justified, KiwiHesta B.V. shall only be obliged to repair the defective work,
to which the other party must give KiwiHesta B.V. an opportunity. If the other party has to
If the Client instructs a third party to repair the defect in question or the defects, then the Supplier shall
these costs are for his account and risk. KiwiHesta B.V. shall not be obliged to pay these costs.
the other party shall not be entitled to any compensation in the event of repair work to be carried out or carried out by KiwiHesta B.V. or by third parties.
12.4 Lodging a complaint shall never release the other party from his obligation to pay.
against KiwiHesta B.V.
\Article 13 [Guarantee]
13.1 KiwiHesta B.V. guarantees the soundness and quality of the materials it has delivered or used for a period of 12 months in respect of the goods delivered.
13.2 The guarantee referred to in the first paragraph shall only apply to goods purchased by KiwiHesta B.V. from elsewhere if the manufacturer or supplier provides the guarantee referred to in the first paragraph.
13.3 The term “guarantee” shall only be understood to mean the other party’s right to replace or replace the goods.
Restoration of the case in question. Under no circumstances does repair during the warranty period lead to
to the corresponding granting of the guarantee period.
13.4 The above-mentioned guarantee obligations shall not apply if the defect found was caused by incompetent use, normal wear and tear or by the installation or use of the delivered item contrary to the instructions given by KiwiHesta B.V., or if the other party itself has made changes to the delivered item or has had repairs carried out to the delivered item.
Article 14 [Miscellaneous]
14 If the other party does not, does not timely or does not properly comply with any obligation, which is
for him from the agreement concluded with KiwiHesta B.V., as well as if the other party is declared bankrupt [including the application for bankruptcy],
or the other party applies for a suspension of payments, the following with regard to the other party
The Commission will decide whether the statutory debt rescheduling scheme should be applied provisionally or definitively,
decides whether to close down or liquidate [part] of its business, or to wind up its business, or
transfers the holding or a substantial part of it [the contribution of his holding to a company to be absorbed].
or pre-existing company], as well as if at the expense of
the other party is seized by way of execution, the other party dies, under
is placed under guardianship or administration, the latter shall be deemed to be in default by operation of law.
without any further notice of default being required. The other party shall not be entitled to any further notice of default.
is due to KiwiHesta B.V. at that time and in the future shall become immediately due and payable at once.
In that case KiwiHesta B.V. may dissolve the agreement in whole or in part without judicial intervention.
Article 15 [Applicable law and competent court]
15 All agreements concluded with KiwiHesta B.V., as well as all disputes that may arise
as a result of an agreement in which the present General Terms and Conditions are fully applicable.
of gedeeltelijk van toepassing zijn, worden beheerst door Nederlands Recht. De in de vorige
zin bedoelde geschillen zullen worden beslist door de binnen het vestigingsgebied van KiwiHesta B.V. bevoegde Nederlandse burgerlijke rechter. Deze forumkeuze laat onverlet het recht van
KiwiHesta B.V. om het geschil voor te leggen aan de volgens de normale competentieregels bevoegde burgerlijke rechter.
De toepasselijkheid van het Weens Koopverdrag wordt uitdrukkelijk uitgesloten.