Terms and conditions
GENERAL TERMS AND CONDITIONS
Of the Private Company with limited liability KiwiHesta B.V., with registered office and place of business at Avignonlaan 27, 5627 GA Eindhoven, as established on 24 August 2017 and further filed with the Chamber of Commerce and Industry in Eindhoven under file number 17239156.
Article 1 [Applicability]
1.1 These General Terms and Conditions apply to and form part of all offers/quotations for and agreements for the purchase and sale or performance of work 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 third party.
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 insofar as KiwiHesta B.V. expressly accepts any terms and conditions, including those of the other party, that deviate from the General Terms and Conditions of KiwiHesta B.V., in writing.
Article 2 [Offers]
2.1 All offers, irrespective of whether they are made by separate offer or otherwise, are free of obligation and revocable, unless explicitly stated otherwise in writing.
2.2 All the information provided to the other party in connection with an offer [documents in the form of provided price lists, selection programmes, brochures and other specifications concerning sizes, weight [product/material], properties and quantities] are approximate and shall not be binding on KiwiHesta B.V., unless explicitly stated otherwise in writing.
2.3 KiwiHesta B.V. expressly reserves the right, in the event that an offer made by it is not accepted, to charge the other party all reasonable costs relating to the provision 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, etc.] provided to the other party by KiwiHesta B.V., either in the context of an offer made by KiwiHesta B.V. or in the context of the agreement [of the assignment] to be carried out, shall remain the exclusive property of KiwiHesta B.V. in so far as they are already subject to KiwiHesta B.V.’s intellectual or industrial property right [including copyright] at the time of the offer or at a later time.
4.2 The other party is expressly forbidden, without KiwiHesta B.V.’s express written permission, to use, multiply, make available for inspection to third parties or make available to third parties the documents referred to in the first paragraph other than for the purpose of implementing the agreement.
4.3 The other party shall be required to store 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 maintain the complete confidentiality of the data and information which becomes known to it through the provision by KiwiHesta B.V. of the documents referred to in paragraph 1. The other party shall impose this obligation on any employees and/or auxiliary persons.
4.5 The other party is expressly obliged to indemnify KiwiHesta B.V. against costs and damage arising as a result of infringement of the intellectual and industrial property rights of third parties as a result of the use by or due to the provision of information by the other party.
4.6 The other party shall return to KiwiHesta B.V., at its first request, the documents provided by KiwiHesta B.V. as referred to in paragraph 1, 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., with immediate effect.
4.7 The other party shall forfeit an immediately payable penalty of € 25,000 for each violation of or failure to comply with the aforementioned provisions of this article, as the case may be, and an immediately payable penalty of € 10,000 for each day on which the violation or failure to comply continues, without prejudice to KiwiHesta B.V.’s right 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 prices at the time of the agreement applicable cost price 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 stated otherwise, the prices stated 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 coming 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, 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, the Incoterms 2000 apply to every delivery ex works.
6.3 The other party must obtain an export and import permit or other official authorisation at its own expense and risk and, where applicable, complete all customs formalities for the export of the goods.
6.4 The other party is obliged to check for transport damage or visible defects immediately upon delivery. Complaints in this respect must be reported on the delivery note, the invoice and/or the transport document, 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 shall not commence until an agreement has been reached, as well as agreement has been reached on all technical details, and until KiwiHesta B.V. has also received documents, data, goods and/or permits, etc. necessary for the execution of the work.
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 have been offered by KiwiHesta B.V. to the other party and have been accepted by the other party without complaint(s).
Article 7 [Payment]
7.1 Payment must be made in cash upon delivery. If payment is made by invoice, payment must be made within 30 days of the invoice date. All payments shall be made without any right of suspension or right of set-off. Terms of payment are considered to be strict deadlines.
7.2 Payments made by the other party shall always serve to pay the oldest outstanding claim against the other party and to pay 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 payment must have been made KiwiHesta B.V. shall automatically, therefore without any notice of default being required, be entitled to default interest of 1% per month or part of a month, whereby part of a month shall count as 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 in full, he shall also owe KiwiHesta B.V. all reasonable costs incurred to establish his liability and to obtain payment out of court. 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, without prejudice to KiwiHesta B.V.’s right to claim from it any financial loss actually suffered or to be suffered.
7.5 If KiwiHesta B.V. has doubts about the creditworthiness of the other party at any time, 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 suspend the fulfilment of its obligations until the other party has provided the security referred to above or has made the advance payment. In the event of refusal or inability to provide suitable security or to make an advance payment, KiwiHesta B.V. shall be entitled to dissolve the agreement with immediate effect [without judicial intervention], without prejudice to its right to full compensation in that case.
Article 8 [Retention 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 fulfilled all of the following obligations:
– the consideration(s) in respect of the movable property delivered or 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 on account of failure to comply with such agreements, including compensation for damage, 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 to report to third parties that the ownership of the goods in question rests with KiwiHesta B.V., while the other party shall not be entitled to process, dispose of, encumber or lease those goods, as long as KiwiHesta B.V.’s retention of title rests on them.
The other party shall be obliged to mark the goods delivered under retention of title carefully and recognisably as being the property of KiwiHesta B.V..
Article 9 [Distance consumer purchase and distance contract for the provision of services].
9.1 In the event of distance selling or a distance agreement to provide services pursuant to Section 9a, Book 7 of the Dutch Civil Code, all goods and services to be delivered by KiwiHesta B.V. shall be deemed to have been created or to be carried out in accordance with the specifications of the other party.
9.2 Article 7:46f of the Dutch Civil Code shall not apply to the delivery periods relating to agreements as referred to in the first paragraph. The provisions of Article 6 of these General Terms and Conditions are expressly adhered to.
Article 10 [Force Majeure]
10.1 If the agreement proves to be unenforceable as a result of force majeure or similar circumstances, 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 demand that the assignment be amended in such a way that the delivery of goods or services is not affected. The client shall be entitled to make use of the services of the Supplier as yet [with settlement between the parties of the additional or lesser costs resulting from the amendment of the Assignment, which costs shall be invoiced or credited immediately after they have arisen and the payment of which shall be made on invoicing in accordance with the provisions of Article 7] and/or to execute the delivery of goods or the services to be performed at a later date, as the case may be. The above shall not affect KiwiHesta B.V.’s right to payment in proportion to the goods already delivered and/or services performed. The other party shall be entitled to dissolve the agreement in whole or in part if it has been unequivocally established that fulfilment on the part of KiwiHesta B.V. is permanently impossible as a result of the unavailability of the purchased goods.
10.2 Without prejudice to the above, in the event of temporary force majeure KiwiHesta B.V. shall be entitled to suspend the implementation 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 the time of the damage concerned.
Article 12 [Cancellation and complaints]
12.1 If the other party cancels an assignment or wishes to abandon the purchase of a purchased good or to make use of a service after the conclusion 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 concerning invoices must be submitted to KiwiHesta B.V. in writing within 8 days of receipt of the invoice. Complaints [by virtue of the guarantee referred to in article 13] in respect of goods delivered, all this except insofar as the situation as referred to in article 13 is not covered by the warranty. 6.4 and relating to the quality of the delivered goods, materials and the manner in which the work is carried out must be reported to KiwiHesta B.V. in writing within fourteen days of the discovery of the defect, accurately stating the nature of the complaints. The other party’s right to hold KiwiHesta B.V. liable for a culpable 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, which the other party must give KiwiHesta B.V. the opportunity to do. If the other party instructs third parties to repair the defect(s) in question, these costs shall be at his expense and risk. KiwiHesta B.V. shall not be obliged to pay these costs, nor shall the other party be entitled to any compensation in the event of repair work being 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 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 repair the goods in question. Under no circumstances shall repair during the guarantee period lead to a corresponding granting of the guarantee period.
13.4 The above-mentioned guarantee obligations shall not apply if the defect found has been 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 fails to fulfil any of his obligations under the agreement with KiwiHesta B.V., or fails to do so on time or properly, the other party shall be obliged to pay the costs incurred by him in the agreement with KiwiHesta B.V., in full or in part. If the other party is declared bankrupt [including the application for bankruptcy] or if the other party applies for suspension of payments, the provisional or definitive application of the statutory debt rescheduling scheme is pronounced against the other party, or if the other party decides or proceeds to (partial) shutdown or liquidation of its business, If the other party is levied for the purpose of attachment, if the other party dies, is placed under guardianship or is placed under administration, the other party shall be deemed to be in default by operation of law, without any further notice of default being required. The other party’s debts to KiwiHesta B.V. at that time and in the future shall be 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 to which these General Terms and Conditions apply in full or in part, shall be governed by Dutch law. The disputes referred to in the previous sentence shall be decided by the competent Dutch civil court within KiwiHesta B.V.’s area of business. This choice of forum shall not affect KiwiHesta B.V.’s right to submit the dispute to the competent Dutch court in accordance with the normal procedure. The applicability of the Vienna Sales Convention is expressly excluded.