General Terms and Conditions of Sale
General conditions of sale and delivery of Kiama Holding B.V., also trading under “Kiama Holding”, “International Marine Wholesalers” and “Kiama Distribution”.
Article 1 General
These general terms and conditions apply to and are part of all offers and agreements related to the delivery of goods (“the Goods”) and/or the rendering of services (“the Services”) by Kiama Holding and/or International Marine Wholesalers and/or Kiama Distribution (“KH/IMW/KD”) to a customer (“the Customer”)
Deviations from these general terms and conditions apply only if expressly accepted in writing by KH/IMW/KD and only pertain to the agreement for which the deviations have been accepted.
The applicability of the Customer’s general terms and conditions and any other general conditions is hereby explicitly rejected.
In these general terms and conditions, “Agreement” means any agreement for the delivery of Goods and/or the rendering of Services by KH/IMW/KD to the customer. Insofar as these general terms and conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.
The term 'in writing' shall have the following meaning: by letter, by fax or by e-mail.
Article 2 – Offers
KH/IMW/KD’s offers are valid for a ten (10) working days period only and are without obligations. KH/IMW/KD is entitled to withdraw any offer (without incurring any liability) within two (2) working days after receipt of the acceptance of the offer by the Customer
Contents of price-lists, brochures and other information provided in connection with an offer will be as accurate as possible, but are only binding if expressly confirmed by KH/IMW/KD.
Samples supplied by KH/IMW/KD may contain minor deviations in colour, composition, taste and form in comparison with the Goods ultimately delivered.
Any offer made or undertaking given by a representative of KH/IMW/KD shall only be binding insofar as the latter confirms this in writing.
Article 3 – Agreement
Agreements are only binding on KH/IMW/KD by its written order confirmation, or, if confirmed orally, by submission of the pro forma invoice, which shall be considered as thewrittenorder confirmation.
If an order confirmation by KH/IMW/KD differs from the order of the Customer, then the Customer is deemed to have consentedto the contents of the order confirmation by KH/IMW/KD,unless a written notice to the contrary is received by KH/IMW/KD within two (2) working days afterreceipt by the Customer of the confirmation.
Any agreement will be concluded under the resolutive that the Customer, according to the credit insurance company or to KH/IMW/KD, will be sufficient creditworthy.
If an Agreement is entered into with more than one Customer, then such Customers will be jointly and severally liable for their obligations thereunder.
Slight deviations with customary tolerances shall be permitted at the execution of the agreement.
Article 4 - Prices
All prices are without Value Added Tax(VAT) and any other taxes levied by any government, are in EURO, USD or other currency and are based on Ex Works, agreed place of delivery, the Netherlands,(EXW, Incoterms® 2010) unless otherwise agreed upon in writing between KH/IMW/KD and the Customer.
Any price cited by KH/IMW/KD shall be based on the existing monetary conditions, labour costs, procurement prices, duties, taxes and other levies, subsidies and the like prevailing at the time the Agreement concerned is concluded. In the event that one or more of these cost price components increase after conclusion of the Agreement but before the relevant Goods have been delivered, KH/IMW/KD shall be entitled to pass on any reasonable price increase to the Customer. Price fluctuations as a result of coercive government measures, such as an increase in VAT, will always be for the account of the Customer and will in no case entitle Customer to dissolve the Agreement.
Article 5 – Delivery – Delivery date
Unless explicitly agreed upon otherwise in writing, the delivery shall be made "Ex Works" agreed place of delivery, the Netherlands (EXW, Incoterms® 2010)(The Customer shall cooperate with the delivery and take receipt of the Goods. If the Customer fails to take receipt of the Goods for a period longer than ten (10) working days, then KH/IMW/KD is entitled to dissolve the Agreement without prejudice to its right to claim compensation for damages and costs. Prior to dissolution, if any, the Goods will be kept available at the expense and risk of the Customer.
Indicated delivery dates are approximations and shall under no circumstances be deemed to constitute fatal dates and are determined in the expectation that there are no impediments to the delivery of the Goods. KH/IMW/KD will not be in default without being notified thereof, which notice must be issued in writing and which notice must set forth reasonable time period, in no event less than twenty (20) working days, within which delivery is required to take place.
If the delivery date is exceeded, the Customer shall not be entitled to cancel or terminate the Agreement, unless the delivery date is exceeded with more than 6 weeks. The Customer will never be entitled to any compensation in case of late delivery.
The delivery time shall commence at such time as the relevant Agreement is concluded, KH/IMW/KD is in possession of all documents and details to be provided by the Customer and KH/IMW/KD has also accepted any security for payment which may have been agreed or have received any prepayment.
KH/IMW/KD shall be entitled at all times to make partial deliveries, unless explicitly agreed upon otherwise. Each partial delivery shall be deemed to represent a separate Agreement. KH/IMW/KD shall be entitled to demand payment for each partial delivery before proceeding with any other.
KH/IMW/KD is entitled to suspend the performance of any obligation it may have towards the Customer until the latter has met all of its (payment) obligations towards KH/IMW/KD.
Article 6 – Transport and risk
If it is agreed that delivery will not take place “ex works”, agreed place of delivery, the Netherlands (EXW, Incoterms®2010) then KH/IMW/KD will- in the absence of instructions of the Customer – determine the method of transport, shipment, packaging and suchlike, without KH/IMW/KD bearing any responsibility.
Article 7 – Warranty
The goods are only subject to warranties, such as storage life and quality warranties, given by KH/IMW/KD’s Suppliers
Article 8 – Claim notification
The Customer is obliged to check the Goods upon delivery for any defects. The Customer shall report to KH/IMW/KD any visible discrepancies in the Goods within Forty-eight (48) hours from the moment of delivery, otherwise, the Goods shall be considered to have arrived in proper condition. Defects which can only be observed at a later stage, shall be reported to KH/IMW/KD immediately after discovery but it any case within 10 working days after delivery.
KH/IMW/KD shall be afforded reasonable opportunity and facilities to investigate any claim made and the Customer will at first request of KH/IMW/KD return any Goods subject of a claim securely packed and at the Customer's risk and expense to KH/IMW/KD for examination.
In cases of a justified and timely claim KH/IMW/KD will, acting at its own discretion, either redeliver free of charge or credit the Customer.
The Customer will forfeit any right it may have under the Agreement if it has not met its obligations under this article, unless the Customer proves that it cannot be blamed therefor.
Complaints about the invoice must be notified to KH/IMW/KD within 2 working days after invoice date.
Article 9 – Payment
KH/IMW/KD shall at all times have the right to demand full or partial payment in advance. Payment must be made no later than five (5) working days prior to the delivery date, unless otherwise agreed upon in writing. The Customer will not be entitled to a discount, unless otherwise agreed upon in writing.
The Customer will not be entitled to suspend the performance of its obligations towards KH/IMW/KD nor is the Customer entitled to any set-off.
If the Customer fails to pay the amount due at the due date, then (i) the Customer will be in default without a notice of default being required and (ii) the Customer shall pay interest at an interest rate of 1.5% per month over any such amount as of the due date until the day it is fully paid, without prejudice to any other right KH/IMW/KD may have. All costs involved in collecting the amount due, both judicial and extrajudicial, shall be for the account of the Customer. The extrajudicial costs owed will never be less than 15% of the sum to be collected subject to a minimum of € 200,-. If KH/IMW/KD can prove that it has incurred higher costs, that were necessary in all fairness, then these, too, shall be eligible for compensation.
Furthermore, subject to any other rights KH/IMW/KD may have pursuant to the law or the Agreement, in the absence of timely payment it shall be entitled either to suspend further delivery or to terminate all or part of the relevant Agreement without the need for a notice of default or judicial intervention, such at its own discretion and subject to KH/IMW/KD's right to seek compensation for any harm it has suffered.
At any rate, the entire purchase price shall fall due with immediate effect in the event that the Customer fails to effect timely payment or if he goes bankrupt, is granted a uspension of payments, is placed in the care of a guardian, his possessions are attached or in the event that the Customer’s business is liquidated or dissolved.
6. Upon or after entering into the Agreement and before its implementation, KH/IMW/KD will be entitled to demand a guarantee from the Customer that both the payment obligations and any other obligations arising from this Agreement will be fulfilled. Refusal by the Customer to provide the required security gives KH/IMW/KD the right to suspend its obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the Agreement wholly or partially, without prejudice to his right to compensation for any damages suffered by him.
Article 10 – Liability
Except in the case of legal liability pursuant to provisions of mandatory law and a deliberate act or omission, or gross negligence on the part of KH/IMW/KD, any liability of KH/IMW/KD for any damage is excluded. Liability for any indirect or consequential damage including lost profits or loss ensuing from late delivery is expressly excluded.
Notwithstanding the other provisions of the Agreement, KH/IMW/KD is never liable for:a non-fulfilment or breach of its obligations under Agreement due to force majeure as defined in article 12 hereofacts or omissions of employees of KH/IMW/KD or third parties engaged by KH/IMW/KD, including persons recommended by KH/IMW/KD, with the exception of intentional acts or wilful misconduct of executives of KH/IMW/KD;the (un)suitability of the Goods for any particular purpose or damage caused by improper use of the Goods;Goods, which have been processed, adapted or altered in any way whatsoever;a breach of intellectual or industrial property rights of any third parties, unless the Customer proves that KH/IMW/KD was aware of such breach at the time of the delivery;minor deviations in taste, colour, composition, quantity, form and size which are inherent in the nature of the Goods and/or the method of loading;
In all cases where KH/IMW/KD is obliged to pay compensation for damages, the aggregate liability of KH/IMW/KD to the Customer under any theory or ground shall at all times be confined to the net invoice value of the Goods or Services to which the liability relates. In no event shall the liability of KH/IMW/KD exceed that of its supplier
In connection with (personal) damages sustained as a result of a defect of the Goods, the Customer must direct its claims exclusively to the manufacturer of such defective Goods.
Any claim of the Customer against KH/IMW/KD under or relating to the Agreement shall lapse by the mere expiry of one year after the (partial) delivery of the relevant Goods or rendering of Services.
Article 11 – Retention of title
The title of Goods will remain with KH/IMW/KD and will only be transferred to the Customer after the Customer has paid (i) the purchase price including any costs, damages and interest for Goods delivered under any Agreement and (ii) the consideration for Services rendered under such Agreement and (iii) any amount payable due to the Customer’s failure to comply with his obligations pursuant to this Agreement or any other.
The Customer has a duty of care with regard to the Goods covered by the retention of title and the Customer must insure them adequately and for its own account against loss, theft and other damages for which insurance is normal in the country in which the Customer has its offices
The Customer is obliged to keep and/or render the Goods subject to retention of title in KH/IMW/KD’s favour identifiable and to keep them separate from each other and from other products held by the Customer.
Until title to the Goods passes to the Customer, the Customer shall not be entitled to transfer title to them to a third party, to tender them by way of security, to encumber or to pledge them, or to place them at the disposal of a third party in any other way. Nevertheless, the Customer shall be entitled to sell these Goods in the normal conduct of his business.
The Customer shall at all times help KH/IMW/KD exercise its right of ownership. As long as retention of title applies, the Customer shall have a duty to grant KH/IMW/KD access to his buildings and premises.
When first so requested by KH/IMW/KD, the Customer shall be obliged to pledge to KH/IMW/KD any accounts receivable he acquires in respect of Goods supplied by KH/IMW/KD which are subject to retention of title and have been sold to his buyers.
Article 12 – Force Majeure, events of default
In the event of force majeure, KH/IMW/KD shall be entitled to withdraw its quotations and, suspend deliveries without judicial intervention, and it shall not be required to provide any compensation. In addition to what the law considers to be force majeure, force majeure of KH/IMW/KD should be understood to mean acts of God, strikes, labour unrest, lockouts, riots, default or delay on the part of KH/IMW/KD suppliers of the Goods, acts of war, epidemics, boycotts, embargo´s, sanctions, fire and explosions, communications line failures, power failures, earthquakes, floodings and similar disasters, illness of employees of KH/IMW/KD or third parties called in by KH/IMW/KD in connection with the implementation of the Agreement, measures taken and/or prohibitions issued by the Dutch government and/or a foreign government by which KH/IMW/KD is bound, unforeseen and unpredictable traffic impediments, accident(s) with a means of transport employed in connection with the implementation of the Agreement as well as unforeseen technical defects in these means of transport, failure to perform by the suppliers of KH/IMW/KD, as well as all other unforeseen circumstances that prevent KH/IMW/KD from implementing the Agreement properly and on time and that are not for the account and risk of KH/IMW/KD. Failure to make (monetary) payments can never be attributed to force majeure.
Both parties are entitled to dissolve the Agreement by issuing a written notice to that end if KH/IMW/KD’sperformance is restrained or barred by force majeure for a period in excess of three months, without the Customer being entitled to any compensation. Where KH/IMW/KD has already executed part of an Agreement, the Customer shall pay the purchase price for any Goods that have been delivered.
Article 13 – Intellectual property rights
The customer shall not remove, cover or alter any indications on the Goods as to trade or brand names, patents or other intellectual or industrial property rights.
Article 14 - Suspension and termination
In the event that the Customer fails to comply with his obligations pursuant to an Agreement into which he has entered, or fails to do so properly or on time, if there are grounds to fear that this will occur, or in the event that the Customer applies for a suspension of payments, files for bankruptcy or liquidates his business, KH/IMW/KD shall be entitled to suspend or terminate the Agreement concerned without the need to give notice of default or for judicial intervention, and it shall not have a duty to provide any form of compensation.
Any claim on the part of KH/IMW/KD pertaining to a part of the
Agreement which has already been executed, or harm suffered as a result of its suspension or termination, which shall be deemed to include loss of profit, shall fall due with immediate effect.
Article 15 - Cancellation
If the Customer wishes to cancel the Agreement without KH/IMW/KD having failed in the performance thereof and if KH/IMW/KD so agrees, KH/IMW/KD is entitled to charge the expenses, damages and lost profit.
Article 16 – Governing law; disputes
These general terms and conditions and any agreements entered into by KH/IMW/KD shall be solely governed by and construed in accordance with the law of the Netherlands. The applicability of the Vienna Convention on the International Sales of Moveable Goods (1980) or any other future international regulation on the purchase of movable goods is explicitly excluded.
All disputes arisen under the Agreement between the Customer and KH/IMW/KD shall be submitted to the competent court of Rotterdam unless KH/IMW/KD would elect to submit the dispute to the competent court in the place where the Customer has its registered offices, without prejudice to each party’s right to file for provisional measures with another competent court.
The provisions of article 16.2 leave intact the right of KH/IMW/KD to obtain a settlement by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrator(s). The place of arbitration will be Rotterdam, the Netherlands. The arbitral procedure shall be conducted in the English language.