General Terms and Conditions of Klein Kromhof Houtvezels BV and Handelsonderneming Jekro BV

  1. Validity
    • These terms and conditions are at all times applicable to all legal relationships under which we have performed work and/or delivered goods. The general terms and conditions in any case form an integral part of all agreements to which we are a party and to all negotiations (the pre-contractual phase) in which we are involved and that precede any legal relationship/agreement.
    • These terms and conditions will remain exclusively applicable, also if stationary, invoices and/or other documents from the other party refer to or state that its own terms and conditions or other general terms and conditions apply. Unless otherwise agreed, the applicability of general terms and conditions or provisions of the other party or third parties is excluded. In case of conflict between these terms and conditions and the provisions in the agreement, the provisions in the agreement will prevail.
    • Additions, changes or further agreements or arrangements, deviating provisions made to the agreement or to these general terms and conditions in which obligations or lower sales prices have been agreed are only valid between the parties if these have been confirmed by us in writing. We reserve the right at all times not to invoke the provisions included in these general terms and conditions.
    • The authority of our representatives does not extend further than what is commonly accepted. Our representatives do not have the authority to deviate from these terms and conditions, except based on an explicit written authorisation, to be granted separately for each agreement. If any circumstance arises in the future that is not, no longer, not fully or no longer fully provided for in an agreement between the parties and the general terms and conditions that are applicable to it, the parties will try to find a solution by mutual agreement which meets the interests of both parties as much as possible according to the principles of reasonableness and fairness.
  2. Quotation and order
    • Our quotations and official price lists are non-binding. Quotations are valid for the term stated in the quotation. If no term is stated, the quotation will be valid for 20 calendar days. The validity of a quotation can be extended by us by means of an announcement made to the other party in writing, in which also the term of the extension is stated.
    • Illustrations and description, sizes and weights included in our official price lists, brochures and quotations do not bind us. Unless otherwise stated, we do not guarantee fitness for the intended purpose. Fitness of goods delivered for a specific use is at the risk of the other party. We are not liable for errors in and deviations from illustrations, drawings, sizes and weights stated in official price lists and offers and/or order confirmations and we are not obliged to pay damages of any kind or with any cause.
    • All documents provided by us, including copies made thereof, especially drawings, plans, and product and work descriptions, will remain our unalienable property, as will the right to make use of these, and must be returned to us upon first request, whilst these documents cannot be copied or made available to third parties without our written permission.
    • The other party guarantees at all times that the use by the other party of information or other items made available by us will not cause us to be in breach with statutory rules or protected rights of third parties. The other party indemnifies us fully for all direct or indirect results from claims the third party may make on us pursuant to a breach of the guarantee mentioned in this article.
    • Orders – also if these have been received through our representatives – are deemed to have been accepted only after these have been confirmed by us in writing or have been performed by us after their receipt. In case of sales ex-warehouse, the invoice may replace the written confirmation.
  3. Price
    • Unless otherwise agreed, our prices are ex-warehouse or ex-works in case of supply. The prices are exclusive of any payable freights, import and export duties, station, storage, surveillance, transport, insurance, research and clearance charges or other duties. All freight, import and export duties, station, storage, surveillance, transport, insurance, research and clearance charges or other duties related to the agreement are payable by the other party, also if these are introduced or increased after the agreement, as are the consequences of changes in currency rates.
    • If no price was agreed, or no price was agreed yet, the prices and fees applied by us at the time of delivery will be charged to the other party.
    • We have the right to index the prices annually on January 1st.
    • If wages and/or prices have changed after the conclusion of the agreement, but before the agreement has been performed by us in full, we are entitled to change the agreed prices outside indexation unilaterally, meaning that the permission of the other party is not required. In case of a price increase by more than 15%, the other party will be entitled to terminate the agreement without us being obliged to pay damages for any cause whatsoever to the other party.
  4. Creditworthiness
    • Once we have accepted an order in full or in part, the other party will be obliged – which obligation forms an integral part of the agreement – to provide us, if so requested, with proof of his/her creditworthiness, either prior to delivery or afterwards, as surety for the fulfilment of all its obligations and to our satisfaction, for example by payment of cash, the provision of a bank guarantee, an assignment, the provision of a right of pledge or mortgage, etc. No maximum is attached to the size, scope or manner in which said security is to be provided by the other party and these factors will be determined by us. The obligation to provide security as referred to in this article also applies to the obligation to pay damage if we claim compensation for damage from the other party if the damage is caused by the dissolution of the agreement or part thereof which is attributable to the other party. If the other party remains in default in the provision of a security/securities, we will not be obliged to fulfil or to continue to fulfil our obligations vis-à-vis the other party under agreements in force, without prejudice to our right to claim at law fulfilment of the agreement or payment of sums payable under the agreement, and to claim compensation of damage and/or the provision of the security/securities.
  1. Delivery
    • All deliveries are subject to retention of title, as further described under article 6. Delivery is deemed to mean: placement of the goods under the control of the other party, or an agent who is ordered by the other party to collect the goods.
    • The risk of goods delivered is at the expense of the other party from the moment the delivery is made. The same applies if the other party fails to perform the acts with which it is obliged to cooperate in respect of the delivery. The other party is in default if it does not take receipt of the goods at the place of delivery immediately following expiry of the delivery date. The other party is obliged to deploy sufficient resources and staff to ensure the smooth and uninterrupted unloading of the goods. Additional costs will arise through the negligence of the other party, whereby storage costs for goods not received are at the risk and expense of the other party. In all agreements and under all circumstances, including delivery free of domicile, our warehouses, or in case of delivery on supply from third parties the warehouses or the factories of such third party/parties will be considered as the place of delivery. The date of delivery will be the date shown on the consignment note, which is the date on which the delivery is made, either by us or by a third party/third parties as referred to above – or, in the absence thereof, the time when the delivery commenced – except in the case of goods collected, in which case the date shown on the delivery note will apply.
    • We are at liberty to choose the type of load, means of transport and forwarder unless otherwise agreed. The risk of the goods to be delivered to the other party remains with the other party for the entire duration of the transport until delivery is made to the other party, also in the case of delivery free of domicile and irrespective of other stipulations in the carriage documents. We are entitled to charge the other party additional costs for the use of sustainable packaging materials, which costs will be shown on the invoice. Loading or filling of transportation and/or packaging materials made available by the other party is at the risk and expense of the other party, also if this is done by us and/or if we have given advice on the use of transportation and/or packaging materials or have performed further tasks in that connection. We have the right to refuse to load or fill transportation and/or packaging materials which we think do not meet the requirements to be set in the context of safety and reasonableness. In case of such a refusal, we cannot be held liable for the consequences of any delay resulting from this. The same rights and obligations apply to third-party/parties referred to in this article.
    • We reserve the right to increase or decrease the order by 10% at the most, for technical reasons or due to the package of an article, without the obligation to inform the other party thereof. The other party is obliged to pay us the price applicable to the changed quantity.
    • The other party is obliged to check the delivered goods immediately after delivery in terms of quantity, quality, specifications or other deviations from what was agreed.
    • Delivery terms will always be approximate. Exceeding of delivery terms will not give the other party the right to dissolve the agreement, refuse payment or otherwise fail to fulfil its obligations. Neither does exceeding the delivery term oblige us to pay any damage of whatever name or for whatever reason.
    • We are entitled to deliver orders in full or consecutively in batches. In the latter case, we are entitled to invoice the other party for each batch delivery separately and to demand payment for these. If and as long as a batch delivery has not been paid for by the other party, we are not obliged to deliver the subsequent batch, but we are entitled, at our own discretion, to suspend or dissolve the agreement insofar as it has not yet been performed without judicial intervention and without any notice of default on the part of the other party being required, without prejudice to our other rights, including our right to compensation of damages.
  2. Retention of Title
    • All goods delivered and still to be delivered will continue to be our sole property, until all claims on the other party that we have or will have in the future have been paid in full, including in any case the claims specified under in article 3:92 paragraph 2 of the Dutch Civil Code for interest, extrajudicial and judicial costs.
    • If the other party forms a new item from the goods delivered by us to which retention of title applies, it must thereby act on our instructions and must keep this new item in custody for us. It will become the owner only once the retention of title ceases to exist after all payments have been received in full.
    • As long as the ownership of the goods has not been transferred to the other party, it may not pledge these to a third party, nor grant any rights on these to third parties, except in connection with its normal business operations. Upon our first request, the other party is obliged to cooperate in order to create a right of pledge on the claims the other party has or will have on its suppliers for our benefit arising from the dispatch of the goods. Insofar as we have any other claims on the other party than those referred to in paragraph 6.1 and we have delivered goods to the other party to which no retention of title applies, the other party will establish a non-possessory pledge on these goods to our benefit, and we will accept this non-possessory pledge as security for fulfilment of its obligations. The other party will in all cases and on our first request, sign a deed which establishes the right of pledge. It will ensure that it is entitled to pledge the goods and that no right of a pledge and/or limited right applies to the goods, apart from our rights.
    • The other party is obliged to keep the goods delivered under retention of title with due care and as our identifiable property. The other party must treat the goods referred to in this article with due care and diligence. It will ensure the goods against all contingencies on the basis of the invoice value. Upon our first request, the other party will provide the names and addresses of the insurers and copies of the insurance policies. In addition, upon our first request, the other party will establish an undisclosed pledge in favour of us on the claims it has in this context on the insurer, insofar as this pledge has not yet been created by operation of law.
  • We are entitled to take back goods delivered under retention of title that is still with another party if the other party is in default in fulfilling its payment obligations or has or runs the risk of having payment difficulties. The other party will at all times grant us free access to its premises and/or buildings for the inspection of the goods and/or the execution of our rights.
  • The aforementioned provisions leave all other rights accruing to us unimpaired.
  1. Payment
    • The sums to be paid to us by the other party on the basis of any legal relationship (such as an agreement) are immediately due and payable in full at the formation of the legal relationship. If and insofar as sums are not payable pursuant to the foregoing, the sums will be immediately due and payable in full upon full or partial delivery of the goods.
    • Insofar as the amounts owed by the other party to us cannot be claimed pursuant to the foregoing, the payment of our invoices must in all cases be made within 8 days from the invoice date. Complaints on invoices must be received by us in writing within eight days from the invoice date. After expiry of that term, the invoice will be deemed to be irrevocably and unconditionally accepted by the other party. Any legal action in this respect must be brought within one year of a complaint being made in good time, at the risk of such a claim lapsing.
    • In the event of non-compliance, overdue compliance and/or incomplete compliance with the aforementioned paragraphs, the other party is in default, without any notice of default being required to that effect. In the event of default, and also in the event of suspension of payments, bankruptcy or the winding-up of the other party’s business, the other party will be obliged to pay us an interest rate of 1% per month on the amounts due, or the statutory (commercial) interest rate specified in article 6:119a of the Dutch Civil Code, whichever is greater.
    • In such an event, we are entitled to dissolve all current contracts with the other party, in part or in full, without any legal intervention being required. The other party is obliged to compensate us for any costs and damage incurred by us arising from this. Furthermore, all credits granted will lapse and all amounts owed on the basis of other legal relationships (agreements for example) will be immediately payable in full.
    • In the event of default, as well as in the event of the other circumstances specified under article 7.3, all extrajudicial costs – including in any case the costs of the agent or lawyer hired – judicial costs – including court fees – incurred to establish the damages and the liability, to procure settlement and to prevent or limit damages as a result of events to which the liability applies, the interest on the principal sum and the other costs – over and above the principal sum – will become immediately due and payable. Extrajudicial costs are in any case equal to the actual costs for legal assistance invoiced to us or will amount to 15% of the principal sum with a minimum of € 500, plus advance sums incurred and outstanding taxes.
    • The sole fact that we have engaged the help of a third party shows the extent of and the obligation to payment of extrajudicial expenses.
    • If we apply for the bankruptcy of the other party, then it must pay the expenses made for the bankruptcy petition, next to the principal sum, the interest and extrajudicial collection costs.
    • If the decision in a legal proceeding is partly or fully in our favour, all costs incurred by us in connection with the proceedings will be at the expense of the other party, in spite of any partial or full costs order.
    • The payments to be made by the other party must be affected without deduction, suspension, setoff, compensation, debt compensation, discharge, of whatever name or for whatever reason. The other party therefore expressly waives these rights.
  2. Force Majeure
    • In case of force majeure, we will have the right to dissolve the agreement for the part thereof not yet performed, in part or in full, or to suspend the performance for the duration of the force majeure. Force majeure in any case includes: fires, strikes, lockouts, sabotage, commotion, revolt, mobilisation, war, threat of war, state of war, state of siege, congestion, traffic disruptions on roads, waterways or in the air, floods, ice conditions and other delay during transport, government measures, economic incapacity and obligations imposed by the EU, excessive increase in prices of energy or raw materials, and invocation of the clause particuliere by our supplier in case of long term contracts, power interruptions, non- or not proper functioning of phone/fax/telex (networks) and other means of communication or operating assets (computers, etc.), bankruptcy or suspension of payments of contractors and the full or partial default of third parties from whom services or goods are contracted, without us being obliged to prove the impact thereof on the impediment or delay.
    • Force majeure is also applicable if we order the goods to be delivered from a third party and this party, for any reason whatsoever, fails to deliver. In case materials are ready but cannot be transported to the place of destination owing to a circumstance outside our control we will have the right to store these at the risk of the other party and to demand payment for this.
    • In case of force majeure, our obligations under the agreement will be suspended for the duration of such force majeure, without us being obliged to pay any compensation of damages. The other party is never entitled to suspend payment obligations on the basis of force majeure.

9. Complaints/Guarantees/Liability

  • Complaints of whatever name or nature do not suspend the payment obligation of the other party. Complaints will only be accepted by us if these are submitted by registered letter within 8 days after delivery of the goods. After the lapse of this term, the delivered goods are deemed to have been accepted irrevocably and unconditionally by the other party. Any legal action in this respect must be brought within one year of the complaint being made in good time, at the risk of such a claim lapsing. The burden of proof of the timely submission of a complaint rests with the other party. The other party can only prove the accuracy of its complaint on the basis of the goods, whilst the burden of proof that these goods are the same as those delivered by us and that these are in the same condition as when they left our warehouse or the factory of a third party lies with the other party. We accept only goods returned to us on our request and of which moreover a respective complaint has been accepted by us. The return is at the risk and expense of the other party. In case of a complaint by the other party that has been found to be justified by us, we have the right to choose to either replace the parts or articles to which the complaint refers or to send the other party a credit note with respect to these, excluding all other rights of the other party to compensation of damages.
  • We will never (including in the event of force majeure, complaints, failure to fulfil any obligation under an agreement, wrongful act, incorrect advice) be held liable to compensate any damage and/or penalty, of any name or nature whatsoever. Insofar as the law dictates that the aforementioned full exclusion of liability cannot be upheld, the following will apply:
  • the amount to be paid by us for damages and penalties will and can never exceed the amount for which the liability insurance entered into by us actually gives claim to payment, in which case:
  • the amount to be paid by us/the insurer for compensation of damages and penalties will and can never exceed the amount as stated in the invoice for the good/goods, which also applies in case the other party cannot claim compensation from our liability insurer, in which case:
  • we will only and exclusively accept liability for a maximum amount of € 10,000 in total. In all cases, however, we can never be held liable for indirect damage, consequential loss, immaterial damage, trading loss, environmental damage, damage resulting from lost profits or from liability against third parties. If we have ordered raw materials for our products from one or several third parties and one or more of these third parties have delivered raw materials to us of which one or several aspects deviate from what we have ordered, we are in case of use of such raw materials for our products never liable for damage resulting from that use and/or never liable if such use may result in damage to the other party and/or its clients. The other party can and may in such cases never hold us to account pursuant to product liability as specified in articles 6:185 et seq. of the Dutch Civil Code. The other party will in case of such damages also indemnify us against all claims by its clients under articles 6:185 et seq. of the Dutch Civil Code.
  1. Expiry Date
    • Insofar as these terms and conditions do not provide otherwise, all rights of legal action and other powers of the other party of whatever nature against us will in any case lapse one year after the first moment the other party became aware or could reasonably have become aware of the existence of such rights and powers.
  2. Disputes
    • All disputes, also disputes that are only connotated such by one of the parties, will exclusively be submitted to the competent District Court of Overijssel, Almelo location.
    • All our offers and quotations issued, and all agreements entered into between us and the other party and the performance thereof are exclusively governed by Dutch law.
    • The applicability of the Vienna Sales Convention is explicitly excluded.
    • In case of conflict between the Dutch version of these terms and conditions and any version in another language, the Dutch text will prevail.