GENERAL TERMS AND CONDITIONS of the Private Limited Company KIIROO B.V. with registered offices in Amsterdam
ARTICLE 1: DEFINITIONS
- Customer: The party that enters into an agreement with KIIROO, or which is negotiating in such a matter, as well as any party which requests a tender from KIIROO and/or which has a tender sent by KIIROO.
- Agreement: an agreement between KIIROO and the Customer, in whatever form, together with the amendments(s) and additions(s) to it and every (further) order which is placed pursuant to such Agreement.
- General Terms and Conditions: these general terms and conditions.
ARTICLE 2: APPLICATION
- These General Terms and Conditions apply to all offers and/or tenders by KIIROO, as well as to all Agreements and agreements to be entered into by KIIROO and the ensuing activities, including the supply of goods and services, with the explicit exclusion of any general terms and conditions of the Customer.
- Derogations from these General Terms and Conditions must have been expressly agreed upon in writing. Any derogation will only apply to the offers concerned and/or Agreements in which reference to such derogation was made.
- Should KIIROO not always demand strict observance of these General Terms and Conditions, this does not imply that these General Terms and Conditions do not apply and/or that KIIROO will lose the right to demand strict observance of these General Terms and Conditions in future cases, whether similar or not .
- The rescission and/or nullity of any stipulation of these General Terms and Conditions (irrespective of the reason for such rescission or nullification) does not affect the other stipulations. The conflicting, legally invalid, stipulation will be considered to have been replaced by a stipulation in which the intentions and purpose of the original stipulation are done justice.
ARTICLE 3: OFFERS AND TENDERS
- All offers and tenders made by KIIROO are always without obligation and subject to the entering into an Agreement, unless it has been expressly stipulated differently in writing, or unless they explicitly contain a fixed term for acceptance.
- Unless explicitly agreed otherwise in writing, KIIROO will have the right to revoke an offer within 3 days after having received the acceptance.
- Offers and tenders made orally by KIIROO are in no event binding, unless they later have been confirmed in writing by KIIROO.
- All specifications of types, sizes, measurements, numbers, weights, rates and possibilities for processing are provided to the Customer with the utmost care, without, however, KIIROO guaranteeing that no discrepancies can or will occur. Therefore, KIIROO is not liable in the event of any such discrepancies.
ARTICLE 4: AGREEMENTS:
- An Agreement will solely be duly executed after written confirmation and acceptance by KIIROO.
- The text of a confirmation, as described in Paragraph 1 of this Article, determines the contents of the Agreement.
- Should a number of persons or legal entities form the Customer, they will all be jointly and severally liable for the (due and timely) fulfilment of the Agreement. Should the Agreement have been entered into by a third party on behalf of the Customer, said third party will warrant the Customer having accepted these General Terms and Conditions, failing which the third party is bound to these General Terms and Conditions as if it were the Customer itself.
- KIIROO is entitled to engage third parties in the Execution of the Agreement.
- Save express permission in writing from KIIROO, the Customer is forbidden to assign rights or duties under the Agreement to third parties.
- KIIROO is entitled to refuse the request to enter into an Agreement partially or completely or to postpone the execution of an Agreement for reasons of its own. This authority can be invoked, amongst other, because of the contents, nature, import or form of such a request as well as because of technical objections, refusal of (advance) payment or conflict of the request with the interests of KIIROO or third parties, amongst which other Customers.
ARTICLE 5: INFORMATION AND TRASNFER OF RIGHTS
- The Customer cannot derive any rights from advice and information it obtained from KIIROO if it bears no direct relation to the Agreement.
- The product delivered may (slightly) differ from any samples, pictures or other images of the product previously viewed by the Customer. KIIROO shall in no event be held to amend the product in case of such differences.
- Except with explicit permission in writing from KIIROO, the Customer (unless being a natural person) is not entitled to terminate the Agreement completely or partially.
ARTICLE 6: PRICES AND PRICE CHANGES
- All prices stated by KIIROO are exclusive of turnover tax and other government levies and increases, unless expressly stated otherwise in writing.
- The price KIIROO has stated for the performances to be executed by it, is exclusively valid for the performances in accordance with the specifications agreed upon.
- KIIROO is entitled to charge extra costs, which were not agreed upon expressly in the Agreement, separately to the Customer, if incurring these costs is necessary for the execution of the Agreement. When appropriate, the Customer will be informed of such costs in writing as soon as possible.
- KIIROO is furthermore entitled to raise the prices and tariffs agreed upon, amongst others in case of interim price increases and/or surcharges on prices of goods, costs of materials, semi-finished products or services necessary for the execution of the Agreement, shipping costs, wages or social contributions, decrease in value of the currencies agreed upon and all other government measures having the effect of increasing prices as a result of which the cost price increases. In any such event, the Customer will be informed thereof in writing as soon as reasonably possible.
ARTICLE 7: PAYMENT
- Amounts agreed in the Agreement will be charged by means of an invoice. Payment must occur within the term of payment named in the Agreement, being the strict deadline. If no term of payment was included in the Agreement, payment is to take place within 14 days after the invoice date, being the strict deadline.
- Any payment by the Customer must be made without any (claimed) right of discount, suspension, deduction and/or set off.
- If it has been agreed that a delivery by KIIROO will take place in multiple instalments and the first instalment has been delivered, besides payment for this instalment, KIIROO is entitled to demand payment for the costs incurred for the whole delivery.
- At all times, and irrespective of the terms of payment agreed upon, the Customer is obliged to provide, at KIIROO’s first request, security for the amounts to be paid to KIIROO under the Agreement. The security provided will have to be such that the claim and any and all interest and costs possibly accruing in respect of such amounts will be properly covered and that KIIROO will be able to recover from it without difficulty. A security which may have become insufficient at a later stage will have to be supplemented to a sufficient security at KIIROO’s first request. Furthermore, the Customer is at all times, and regardless of the terms of payment, held to pay an advance for the payment of the amounts payable to KIIROO under the Agreement, especially for costs of purchase, development production and transport connected to the Execution of the Agreement (this in the widest sense of the word). In case of non-observance the Customer will be in default by operation of law, without KIIROO being obliged to send a notice of default. KIIROO will then, without prejudice to its rights under the law, be authorised, amongst others to postpone execution of the Agreement until the Customer has remedied this default.
- Independently of the way they are named, payments will in all events first be considered to meet the interest and costs incurred, and then to meet the oldest, unpaid invoice.
- In case the strict deadline for payment is exceeded, the Customer will be in default by operation of law and will then owe a contractual interest rate of 2% per calendar month (cumulative) over the amount owed, whereby any part of a calendar month shall be considered to be a full month, without prejudice to any other rights KIIROO may exercise towards the Customer for non-payment or late payment.
- In the event the Customer is in default, KIIROO is entitled and authorized to forthwith postpone the execution of the Agreement, until the Customer has fully met his outstanding (financial) obligations.
- If KIIROO is obliged to engage third parties to collect its claim, all further costs entailed will fall to the Customer, both judicial and extra-judicial, the latter being fixed at 15% of the amount to be claimed with a minimum of € 500.-, this besides KIIROO’s further right to claim compensation of damages suffered.
ARTICLE 8: DELIVERY TIMES
- All delivery times given by KIIROO are approximate delivery times and can never be considered to be strict deadlines.
- Any delivery time will only commence when agreement has been reached between parties on all commercial and technical details, all necessary data are in the possession of KIIROO, the payments (in instalments) have been received and, furthermore, all other conditions for the execution of the agreement have been met.
- The mere expiration of a delivery time does not constitute a default on the part of KIIROO.
- In case of delivery time explicitly agreed to be a strict deadline is not met by KIIROO, the Customer must first serve KIIROO with a notice of default in writing, granting KIIROO a reasonable term for compliance, said term never being shorter than 14 days, before KIIROO shall be in default. Within such term, KIIROO is not liable for any compensation of damages, interest and/or other costs.
- KIIROO is free in the way it will execute the agreement, unless Parties have entered into explicit agreements in writing.
- KIIROO is not held to deliver goods in instalments, however, KIIROO does have the right to execute the Agreement in instalments. In case of delivery in instalments, each delivery is to be considered to be a separate transaction.
- In the execution of the Agreement, the Customer is held by KIIROO to do everything in reason necessary or desirable to enable a timely delivery by KIIROO.
- Should the Customer not meet his obligations ensuing from the Agreement, KIIROO will be authorised and entitled to postpone and suspend the execution of the Agreement forthwith, or to completely or partially dissolve, annul or adapt the Agreement. KIIROO can never be held to any compensation of damages to the Customer as a result of such a suspension, dissolution annulment or adaptation. The Customer is, however, held to compensation of any damages ensuing from the delay caused by the suspension, also in respect of third parties and fully indemnifies KIIROO in this matter.
- The Customer shall be obliged to follow any instructions on the use of the products provided by KIIROO.
- The Customer shall in no event be entitled to modify any product in any manner. Modifications shall included any addition to the product and/or affixation of any sign to identify the Customer.
ARTICLE 9 EXECUTION OF THE AGREEMENT
ARTICLE 10 TRANSPORT, STORAGE AND RISK
- The manner of transport, shipping, packaging and suchlike will at all times be determined by KIIROO.
- Delivery of the goods by KIIROO will take place at the address designated by the Customer. This address must be safely accessible for transport and reachable via a suitable road. The Customer is held to immediately check the goods to be delivered by KIIROO, prior to acceptance thereof.
- Acceptance of the goods delivered by KIIROO to the Customer will serve as proof that these are in an outwardly good condition, at which moment the risks will devolve upon the Customer.
ARTICLE 11 RETENTION OF TITLE AND RIGHT OF PLEDGE
- KIIROO will remain owner of all goods delivered by it, as long as the Customer has not completely met all it’s obligations pursuant to the Agreement, especially obligations to pay, this inclusive of interest and costs.
- KIIROO is at all times entitled to repossess the goods delivered by it or to have them repossessed. The Customer therefore authorises KIIROO, or third parties engaged by them, to enter the business accommodation and other premises where the delivered goods have been stored and/or have been placed, and to do anything that can promote repossession and to refrain form anything which might frustrate repossession, failing which, the Customer shall forfeit an immediately due and payable penalty of € 10,000.- per day, which can not be mitigated, that it remains in default.
- The goods delivered by KIIROO may solely be processed or resold to a third party by the Customer in the framework of normal business operations.
- The Customer is not permitted to exercise any rights on goods, such as pledging or encumbering with any (other) rights, on which a retention of title is applicable pursuant to this Article. The Customer is furthermore obliged to inform KIIROO immediately if third parties wish to exercise rights on goods to which retention of title applies pursuant to this Article.
- At KIIROO’s first Request the Customer undertakes to:
- insure, or to have and keep the goods to which, pursuant to this article, a retention of title applies, insured against damage by fire, explosion and water, together with theft and loss, and to present the relative policies to KIIROO for inspection;
- to pledge to KIIROO all claims on insurers by the Customer, upon resale of goods delivered by KIIROO , on which Retention of Title rests pursuant to this article, in such manner as set out in Section 3:239 of the Dutch Civil Code;
- to pledge to KIIROO all claims on its customers upon resale by the Customer relative to goods, delivered by KIIROO, on which Retention of Title rests pursuant to this article, in such manner as set out in Section 3:239 of the Dutch Civil Code;
- to regard and specify as such the goods delivered by KIIROO to which retention of title applies, pursuant to this article;
- to cooperate in every other way with all reasonable measures KIIROO wishes to take for the protection and safeguarding of its rights of ownership in relation to the goods delivered by it under retention of title;
failing which, the Customer shall forfeit an immediately due and payable penalty of € 10,000.- per day, which can not be mitigated, that it remains in default.
ARTICLE 12 COMPLAINTS
- Immediately after Execution of the Agreement, the Customer is obliged to inspect the performance and goods delivered by KIIROO thoroughly for faults and defects, and to inform KIIROO, either in writing or by e-mail, forthwith, but within 48 hours at the very latest, if these are present.
- Should the Customer not have indicated the faults and defects, which could have been noted, or could have been noted upon thorough inspection, to KIIROO within 48 hours after the time of Execution and Delivery, the Customer will be considered to agree with the state in which the aforementioned performance was delivered and the right of complaint will terminate.
- In case of faults and/or defects, ascertained by the Customer it is held to enter these on the bill of carriage and furthermore specify the faults and defects it has ascertained accurately, while presenting relevant proof, including, in any case the presentation of sound photographic evidence.
- KIIROO must immediately be given opportunity to check the faults and defects the Customer has ascertained. Should the faults and defects ascertained by the Customer be correct, KIIROO will have the choice of either awarding reasonable damages, with due observance of the stipulations of Article 13, or, repair the faults and defects or replace the relevant product(s). In this case, the Customer will never be able to claim any reliance or additional damages.
- The performance delivered by KIIROO will in any case be considered to be accepted without fault or defect if the Customer has started using the delivered good or a part thereof, has started working with or using it, has delivered it to third parties, or has had third parties use it, has had it worked with or used or delivered by or to third parties, unless the Customer complied with what has been set out in this Article.
- Should, according to criteria of reasonableness and fairness, the term of 8 hours, meant in the second and third Paragraph of this Article, be considered as unacceptably short, even for a careful and alert Customer, this term will be extended, at the latest, to the first moment at which either the investigation or informing KIIROO will be reasonably possible for the Customer.
- The Customer is not entitled to terminate the Agreement or to fail to meet with his obligations completely or partially, or to stay or postpone them if KIIROO is in default or remiss in the correct performance of its obligations under the Agreement, unless it is a matter of gross negligence or wilful misconduct.
ARTICLE 13: LIABILITY AND DAMAGES
- KIIROO does not accept any liability whatever, for damages suffered by the Customer, unless they are the direct result of an attributable failure or a wrongful act of KIIROO. In this case, KIIROO is only liable insofar this liability is covered by KIIROO’s insurance and up to the amount of actual payment by the insurer.
- Should KIIROO’s insurer not proceed to pay out for any reason, or should the damages not be covered by the insurance, liability in said case will be limited to the invoiced amount of the Agreement, with a maximum of € 12,500.–. KIIROO is not obliged to a further compensation of damages or costs, under whatever name and of whatever nature, including trading loss (amongst which for instance damages through stagnation and missed profits), immaterial damages or other consequential damages for the Customer.
- Furthermore, KIIROO is not liable in case of acts of God, as described in Article 14 of these General Terms and Conditions.
- The restrictions stipulated in this Article do not apply if the damage is the result of wilful misconduct or gross negligence by KIIROO.
- The Customer indemnifies KIIROO for all liability towards third parties because of product liability as a consequence of a defect in a product delivered to a third party by the Customer and which in part consisted of products and/or materials provided by KIIROO
ARTICLE 14 ACTS OF GOD
- Circumstances beyond the will and control of KIIROO, whether foreseeable at the time of entering into the Agreement or not, which are of such a nature that compliance with the Agreement can no longer in reason be asked of KIIROO, are to be considered as Acts of God, whether lasting or temporary, and will free KIIROO from the obligation of performance.
- By Acts of God are meant, amongst others: war, unrest, natural disasters, storm damage, fire, earthquakes, floods, abnormal weather conditions, snow, falling snow, frost, floating ice, strikes, lockout or shortage of staff, shortcomings in equipment and means of transport, traffic obstructions, theft of goods, failures of electricity supply, internet connections and cable, telephone connections and other communication networks such as e-mail, breach of contract by third parties engaged by KIIROO together with all hindrances, caused by government measures. Acts of God on the part of suppliers and distributors, together with delivery problems in case of addresses with so-called difficult delivery are also covered by this stipulation on Acts of God.
- In case of Acts of God, KIIROO is entitled to terminate the Agreement wholly or partially without recourse to the courts, without the Customer being able to claim compensation.
ARTICLE 15 RESCISSION AND TERMINATION
- Should the Customer be remiss in meeting his obligations pursuant to the Agreement, or should circumstances as set out in Paragraph 2 of this Article take place, KIIROO has the right to terminate the Agreement immediately prematurely, without further Notice of Default being required. In this case the Customer will not be entitled to any compensation whatsoever, and the Customer will be obliged to pay KIIROO all damages, interest and costs resulting from the premature rescission or termination.
- Amongst others, KIIROO is entitled to premature rescission of the Agreement if the Customer fails to pay in a timely fashion or to meet obligations under the Agreement (including these General Terms and Conditions), or if one of the following circumstances occurs or threatens to occur:
- A pre-judgement attachment or execution is levied on one or more of the Customer’s assets;
- A petition for bankruptcy is filed for the Customer;
- the Customer is declared bankrupt;
- the Customer is granted a moratorium on payments, whether temporary or not, or such a moratorium is applied for by the Customer;
- the Customer dies or is placed under guardianship;
- the Customer’s business is discontinued and/or dissolved and/or wound up and/or transferred to a third party;
- the Customer performs or omits acts, whereby the good reputation of KIIROO or of third parties, amongst which other Customers/Principals is brought into serious disrepute;
- the Customer no longer complies with rules or regulations laid down by, or pursuant to the law;
- the Customer reports arrears in payment;
- Should KIIROO already have performed a part of the Agreement at the moment of dissolving, this performance and the related payment obligation will not be revoked.
ARTICLE 16: INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
- Without prior permission in writing from KIIROO, the Customer is not permitted to use logos, brand names, trade names or other intellectual property of KIIROO’s in its communications (including advertisements and other forms of publicity) with third parties.
- In case of breach of this Article, the Customer will forfeit (for each breach) a fine of € 50,000.–, immediately due and payable, together with a fine of € 5,000.–, for every day or part of a day that it continues to be in breach, without prejudice to his obligation to compensate KIIROO for any and all damages suffered by it in respect to such breach.
ARTICLE 17: APPLICABLE LAW AND COMPETENT COURT
- The Agreement and any further Agreements deriving from them, to which these General Terms and Conditions apply, are exclusively governed by Dutch Law.
- All disputes, arising from the Agreements, to which these General Terms and Conditions apply, or from other Agreements deriving from them, including their execution, will settled exclusively by the competent court in Amsterdam, The Netherlands.
ARTICLE 18: AMENDMENT AND EXPLANATION OF THE GENERAL TERMS AND CONDITIONS
- These General Terms and Conditions have been filed with the Chamber of Commerce and Factories in Amsterdam.
- These General Terms and Conditions may be amended and adapted. Any future adaptations and amendments will also apply to Agreements which came about before the date of amendment and adaptation, unless it has been expressly agreed upon differently in writing.
- The amendments and adaptations will come into affect 21 days after publication, unless it has been announced differently at publication.