Conditions Générales (en Anglais)

1. Definitions

KLEMKO Klemko Techniek B.V. in Soest

Purchaser The party having made an agreement with Klemko by accepting a corresponding offer.

 

2. Applicability

These conditions shall apply to each and every offer and agreement between KLEMKO and another party, with regard to which KLEMKO has declared these conditions to be applicable, insofar both parties have not explicitly agreed to deviate from these conditions.

 

3. Quotations

Quotations made by KLEMKO do not involve any obligation; they shall remain valid for a period of 14 days, unless indicated otherwise. The prices quoted exclude VAT, unless indicated otherwise. Quotations may be revoked within 5 working-days after KLEMKO has been notified by the other party that a quotation has been accepted. If a quotation is revoked, no agreement will be deemed to have been concluded between the parties.

 

4. Delivery

The location of delivery shall be deemed to be KLEMKO's warehouse in Soest.

From the time of delivery all goods shall be at the purchaser's risk.

Shipment and transport costs shall be charged to the purchaser, unless the net invoiced amount for the shipment is equal to or higher than EUR 300,- (three hundred Euro).

KLEMKO will charge handling costs to the purchaser for orders with a net invoiced value of less than EUR 60,- (sixty Euro).

 

5. Obligation to buy

The purchaser is obliged to accept the purchased goods at the time when they are delivered to him or at the time when they are contractually made available to him.

If the purchaser refuses acceptance or fails to provide information or instructions, required for delivery, the goods will be stored at the expense and risk of the purchaser. The purchaser shall be charged for all additional costs, including storage costs.

 

6. Delivery period

Failure to meet an agreed delivery period does not affect the validity of the contract, unless explicitly agreed otherwise. In case of late delivery the purchaser must send a default notice to KLEMKO .

 

7. Delivery in part

KLEMKO may deliver sold goods in partial shipments. This condition does not apply if a partial delivery does not have independent value.

If goods are delivered in part KLEMKO is authorised to invoice each individual shipment separately.

 

8. Technological requirements and similar

If goods to be delivered in the Netherlands are to be used outside the Netherlands KLEMKO will be held responsible for delivering the goods in conformity with the technological requirements or standards specified in the laws or regulations of the country where the goods will be used, provided the purchaser has notified KLEMKO at the time of purchase that the goods will be used abroad.

Any other technological requirements the purchaser demands with regard to the goods to be delivered and differing from the usual requirements must be specified explicitly by the purchaser at the time of the agreement.

 

9. Samples, models, examples, illustrations and similar

If KLEMKO has shown or supplied a model, sample, example or illustration or similar, such model, sample, example or illustration shall be supposed to have been shown or supplied for information purposes only: The features of the goods to be delivered may differ from those of the sample, model, example or illustration, unless it has been explicitly specified that delivery is to be in conformity with the sample, model, example or illustration shown or supplied.

 

10. Authorisation to change

KLEMKO is authorised to deliver goods that differ in the following aspects from the goods described in the agreement:

a. Colour and appearance

b. Weight and dimensions

If KLEMKO uses this option and delivers a product differing fundamentally from the agreed product, the purchaser is authorised to cancel the agreement. The purchaser may exercise this authority for a period of one week after he has noticed the fundamental difference or could reasonably have detected it.

 

11. Warranty

a) KLEMKO guarantees that the goods sold are free from design, material and manufacturing defects for a period of 1 year after delivery.

* The warranty does not cover defects occurring in parts supplied to us by third parties if such third parties have not extended any warranty to KLEMKO, nor does it cover defects resulting wholly or partially from ordinary wear and tear.

b) If the warranty mentioned in paragraph a) applies and the product shows a defect KLEMKO is obliged to repair the product or supply a replacement within a reasonable period after the purchaser has notified KLEMKO of the defect.

c) Goods needing repair must be handed in at KLEMKO B. V. for repair.

d) KLEMKO may decide to replace a good if repair presents difficulties.

e) The purchaser may only demand repair of a product or cancellation of the agreement if:

KLEMKO has twice attempted to repair the same defect without adequate results and if the defect is so serious as to justify replacement or cancellation, or

if the purchaser shows that a product has or has had so many defects that it does not satisfy the description in the agreement and that these defects justify replacement or cancellation.

f) The warranty will be cancelled if the purchaser causes damage by an incorrect treatment of a product covered by the warranty. Incorrect treatment shall be deemed to include unauthorised repairs of the product whether carried out by the purchaser or by a third party, as well as opening or disassembling a product, either by the purchaser or by a third party, without abiding by assembly instructions. KLEMKO's judgement shall be decisive.

g) The purchaser must prove that a product shows a defect within the warranty period to which the warranty applies. The warranty will be cancelled if the type or serial number of a product has been removed or changed.

 

 

12. Ownership Condition

a) KLEMKO shall retain the ownership of all goods delivered to the purchaser until the purchasing price of these goods has been paid in full.

b) This ownership condition shall also apply to any claims the seller may have on the purchaser as a consequence of the purchaser defaulting on any of his obligations towards the seller.

c) Until such time when the ownership of the goods supplied has been transferred to the purchaser the purchaser must not pledge the goods or grant a third party any other rights to the goods, except insofar the stipulations in paragraph h) of this Article apply.

d) The purchaser is bound to use good care in preserving the goods supplied under the ownership condition and to keep them as the recognisable property of the seller.

e) The purchaser is held to insure the goods for the duration of the ownership condition against damage caused by fire, explosion, and water, and against theft and to submit the insurance policies to the seller if requested to do so.

f) If the purchaser defaults on his obligation to pay or if the seller has good grounds to fear that the purchaser may default on such obligation the seller is authorised to reclaim the goods supplied under the ownership condition from the purchaser or a third party. The purchaser is obliged to cooperate fully, subject to a fine of 10% of the amount owed by him for each day or part of a day

g) After goods have been reclaimed the purchaser will be credited for their market value, which shall under no circumstances exceed the original purchasing price, less the costs involved in reclaiming the goods.

h) The purchaser may sell and transfer the goods supplied under the ownership condition to third parties as part of the ordinary exercise of his business. If goods are sold on credit the purchaser is held to apply an ownership condition towards his buyers as stipulated in this Article.

i) The purchaser commits himself not to cede or pledge any claims he may obtain on third parties without prior written approval of the seller.

j) If third parties wish to establish or exercise any right on the goods supplied under the ownership condition the purchaser is held to notify KLEMKO as soon as may be reasonably expected.

k) If requested by KLEMKO the purchaser is obliged to act as follows:

- he shall pledge all claims held by him on the insurers with regard to the goods supplied under the ownership condition to KLEMKO as specified in Article 3:239 of the Civil Code in order to provide further security for KLEMKO's claims on the purchaser;

- he shall pledge the claims he obtains on his buyers in re-selling the goods supplied under the ownership condition to KLEMKO as specified in Article 3:239 of the Civil Code;

- he shall cooperate in all reasonable measures KLEMKO wishes to take with regard to protecting its ownership condition relating to the goods, provided such measures do not unreasonably hinder the purchaser in the usual exercise of his business.

l) With regard to supplied goods transferred to the ownership of the purchaser after payment but still held by the purchaser, KLEMKO herewith reserves such pledging rights as specified in Article 3:237 of the Civil Code in order to secure any claims not listed in Article 3:92, paragraph 2 of the Civil Code which KLEMKO may continue to have on the purchaser, on whatever grounds.

 

13. Defects, complaints

The purchaser must examine or have examined the goods bought at the time of delivery - or as soon as possible afterwards. The purchaser must check, in order to be able to see if the goods delivered match those mentioned in the agreement:

- if the right goods have been delivered;

- if the quantity of the goods delivered corresponds to that specified in the agreement;

- if the goods delivered satisfy the agreed quality standards or - if such standards have not been specified - the standards set for normal use or trading purposes.

If visible defects are found, the purchaser must notify KLEMKO of them within 5 (five) working-days after delivery by sending a letter with confirmation of receipt.

The purchaser must notify KLEMKO of invisible defects within five working-days after they have been found, but not later than one year after delivery, by sending a letter with confirmation of receipt.

 

14. Price changes

If KLEMKO has agreed to a particular price with a third party KLEMKO may increase the price. KLEMKO may charge the price that applies at the time of delivery according to its current price-list, provided the price does not differ more than 25% from the original price.

KLEMKO is in any case authorised to change its prices immediately if legal measures should push up the cost of the product.

 

15. Payment on delivery

KLEMKO reserves the right, in its own judgement, to deliver goods only on immediate payment. If the purchaser refuses to accept a shipment to which this condition applies the purchaser shall be obliged to compensate KLEMKO for all expenses involved in sending the shipment.

 

16. Payment

Payment must take place within 30 days following the invoice date by means of a bank transfer of the money owed to one of KLEMKO's bank accounts.

If payment does not take place within 30 days after the invoice date the purchaser shall be held to be in default; from the time of defaulting the purchaser shall owe interest on the amount due equal to the legal interest increased by two percent.

If the purchaser's business is wound up, goes bankrupt, or applies for a moratorium, all payments owed by the purchaser's and any other obligations shall fall due at once.

 

17 . Allocation of payments

Payments made by the purchaser shall first of all serve to cover any interest and costs due, and next those invoices that are most overdue, even if the purchaser should specify that the payment refers to a later invoice.

 

18. Debt collection costs

If the purchaser defaults on any of his obligations all reasonable costs made to obtain payment outside the courts shall be charged to the purchaser. The purchaser shall in any case be held to pay:

- on the first EUR 3,000,- :15%

- on the excess, up to EUR 6,000,- :10%

- on the excess, up to EUR 15,000,- : 8%

- on the excess, up to EUR 60.000,- : 5% and

- on the excess over and above this amount : 3%.

If KLEMKO proves to have necessarily incurred reasonably higher costs these costs shall also be liable for compensation.

If the purchaser defaults on one of his obligations he shall owe KLEMKO the legal costs incurred by KLEMKO in all instances according to the rates published by the Dutch Association of Solicitors (Nederlandse Orde van Advocaten), unless the purchaser can prove that these rates are unreasonably high.

 

19. Liability

With regard to defects of goods supplied liability shall apply as specified in the Warranty Article of these Conditions.

With regard to additional services KLEMKO's liability shall be limited to an amount equal to the invoiced amount.

This limitation does not apply if damage is due to deliberate action or gross negligence on the part of KLEMKO or its agents.

In all cases KLEMKO's liability shall be limited to a maximum of EUR 500,000,- (five hundred thousand Euro).

 

20. Disputes

Contrary to the legal regulations regarding the competence of the Civil Courts any dispute between the purchaser and KLEMKO shall be subject to the decision of the competent Court at Utrecht. KLEMKO shall, however, retain the right to summon the purchaser to appear at any court deriving its competence from the law or an International Treaty.

For a period of one month after KLEMKO has decided to invoke this stipulation the purchaser has the right to opt in writing for having the dispute decided by the Civil Court competent under the law or an International Treaty.

 

21. Choice of law

To each agreement between KLEMKO and a third party Dutch law shall apply.

 

22. Modifications

KLEMKO is authorised to modify these conditions. Such modifications shall become effective at the time when they have been said to become effective. KLEMKO shall inform the purchaser of the modified conditions in good time. If no notification is given of the time when the modified conditions become effective, such modifications will become effective for the purchaser once he has been notified of the modifications or has otherwise been informed of them.