Terms and conditions

14-06-2023
GENERAL CONDITIONS OF SALE AND DELIVERY
Kemeling Kunststoffen B.V.
Established at Naaldwijk
Trade Register no. 27221237

Article 1: Definitions

• In these terms and conditions "Kemeling" means: Kemeling Kunststoffen B.V. having its registered office in Naaldwijk and its place of business in (2671 CV) Naaldwijk at Slachthuisstraat no. 7.
• In these conditions, "Customer" means the natural person or legal entity which has entered into an agreement with Kemeling in connection with the supply of services and/or goods by Kemeling.
• In these conditions, "Parties" shall mean: Kemeling and the Customer.
• In these conditions, "Agreement" shall mean any agreement between the Customer and Kemeling for the supply by Kemeling of services and/or goods for the benefit of the Customer.
• In these conditions, "Work" shall be understood to mean: all work for which the Buyer has given Kemeling an order or which ensues from or is directly related to the order, in the broadest sense of the word.
• In these terms and conditions, "Website" means: kemeling.nl.

Article 2: Applicability

• These General Terms and Conditions apply to all offers from, orders to, and agreements with Kemeling.
• Notice of these General Terms and Conditions may be given by stating them (on the back of) letterhead, quotation, order confirmation, e-mail, invoice and on the Website.
• The applicability of any general terms and conditions used by the Client is hereby expressly rejected.
• With regard to goods which Kemeling has obtained from third parties, the (contractual and/or warranty) provisions applicable to such transactions shall also apply to the agreement between Kemeling and the Customer if and insofar as Kemeling invokes them.
• Any voidability or nullity of a provision of the agreement and/or these General Terms and Conditions shall not affect the validity of the remainder of the agreement and/or these General Terms and Conditions. Instead of the nullified or void part, that which is closest to what the parties would have agreed in a legally permissible manner if they had been aware of the nullity or voidability shall apply as agreed.

Article 3: Offers

• All offers, quotations, cost estimates etc. made by Kemeling, whether orally, in writing, by telephone, via the Internet, by e-mail, by app or in any other way, are entirely without obligation and may therefore be withdrawn by Kemeling even immediately after the Buyer has accepted the offer.
• All information and/or specifications provided with an offer, quotation etc. are always approximate and are only binding on Kemeling if expressly confirmed in writing with those words.
• If an offer etc. by Kemeling has not been followed by a written unconditional acceptance within 30 days or an indicated other period, it shall automatically lapse.

Article 4: Agreements

• An Agreement between the parties shall be formed at the time Kemeling confirms the Customer's order in writing (or by e-mail) or, if earlier, at the time Kemeling commences performance of the Agreement.
• If no (written) offer has been made for a delivery by Kemeling, the delivery note/invoice is deemed to correctly represent the contents of that Agreement. Subject to evidence to the contrary, the Buyer declares in advance to agree to the contents of the said delivery note/invoice.
• Agreements with subordinate personnel or other (intermediary or auxiliary) persons of Kemeling are not binding on Kemeling insofar as such agreements have not been confirmed in writing by Kemeling's management.
• Additional agreements or amendments to the contract shall not be binding on Kemeling unless confirmed in writing or by e-mail.
• Kemeling's written confirmation or e-mail is deemed to represent the agreement correctly and fully, subject to proof to the contrary.
• Kemeling shall not be liable for misunderstandings, delays or improper transmission of data and notifications resulting from the use of any means of communication between Kemeling and the Customer, or between Kemeling and third parties, in so far as they relate to Kemeling and the Customer, unless intent or gross negligence on the part of Kemeling exists.
• If Kemeling enters into an agreement with two or more persons or legal entities, each of these persons or legal entities shall be jointly and severally liable for the performance of the obligations which result for them from that agreement vis-à-vis Kemeling.
• Kemeling reserves the right to rescind the concluded agreement in whole or in part without judicial intervention if (i) the Buyer is admitted to statutory debt rescheduling; (ii) the Buyer applies for (temporary) suspension of payments; (iii) the Dutch Homologation Private Agreement Act is declared applicable to the Buyer (iv) the Buyer's bankruptcy is filed for; (v) the assignment cannot reasonably be completed (any longer); (vi) the Buyer fails to provide information which Kemeling requires from the Buyer or which Kemeling requires in the context of the agreement concluded or (vii) if the Buyer fails to perform one or more of its obligations. If the agreement is dissolved by Kemeling on one of the aforementioned grounds, the Customer shall owe Kemeling compensation for the costs incurred and loss of profit amounting to 25% of the agreed price with a minimum of EUR 500. In addition, the Customer shall reimburse all other costs incurred by Kemeling in the preparation or performance of the performance to be delivered by Kemeling, as well as all other losses suffered by Kemeling. To the extent that Kemeling terminates the agreement concluded between the parties (on one of the aforementioned grounds), it will not be obliged to pay any compensation or damages to the Buyer on any grounds whatsoever.
• The Customer's right to the performance of the agreement is not transferable without Kemeling's prior written consent.

Article 5: Delivery and delivery time

• The delivery periods stated by Kemeling are based as far as possible on the circumstances prevailing at the time the agreement was concluded. However, they are never binding or final. Additional agreements, changes or external circumstances beyond Kemeling's control may lead to an extension of the time schedule agreed by the parties.
• Exceeding by Kemeling of agreed delivery periods will not entitle the Buyer to dissolve the agreement unless Kemeling is in default for more than 60 days.
• The Buyer shall purchase the goods and/or services as soon as Kemeling offers them. If the Buyer fails to perform the aforesaid obligation, Kemeling may, without prejudice to its right to claim performance, dissolve the agreement.
• The goods sold by Kemeling shall be delivered from Kemeling's business premises or storage facility. The risk shall pass to the Buyer as soon as the goods have left the business premises or storage facility or as soon as the goods have been separated for the benefit of the Buyer and notice has been given or sent that the purchased goods are ready for delivery. The transport risk is for the Customer, unless otherwise agreed in writing.

Article 6: Prices

• The agreed prices are exclusive of VAT, unless expressly stated otherwise.
• Kemeling reserves the right to pass on to the Buyer any changes in cost price determining factors which arise after the date of the offer or order confirmation and over which Kemeling cannot reasonably exercise any control, such as, for example, increases or increases in purchase prices, excise duties, social security charges, insurance premiums, toll rates, shipping/transport costs or turnover tax, even if a specific price has been agreed.
• Any transport costs, shipping costs, insurance costs and all other costs to be incurred in connection with the delivery or completion of the delivery shall be expressly stated in the written confirmation by Kemeling.
• Additional work is deemed to be anything which is delivered and/or installed by Kemeling in consultation with the Buyer, whether or not laid down in writing, during the performance of the agreement in excess of the quantities expressly laid down in the agreement or the offer, or which is performed by Kemeling in excess of the work expressly laid down in the agreement or the offer.

Article 7: Payment

• Payment must be made in advance, by transfer to the bank account indicated by Kemeling, unless stated otherwise by Kemeling.
• Payments shall be made in Euros, unless stated otherwise.
• The Buyer shall not suspend or set off any payment to Kemeling.
• Without any notice of default being required, the Buyer shall be in default by the mere expiry of the payment period.
• During the period of its default, the Buyer shall owe default interest of 1.5% per month or part of a month on the outstanding debts. At the end of each year, the amount on which the default interest is calculated shall be increased by the interest due over that year.
• In the event of extrajudicial and judicial collection, the Customer shall owe, in addition to the principal sum and the default interest, the collection costs and procedural costs actually incurred by Kemeling.
• If the Buyer is in default of any payment, Kemeling may suspend its performance or dissolve the agreement without judicial intervention.

Article 8: Customer Data

• The data of the Buyer will be included in Kemeling's files. These data will be used exclusively for the performance of the Customer's order.
• Insofar as personal data are processed within the scope of the performance of the work, these personal data will be processed in a proper and careful manner and in accordance with the General Data Protection Regulation.
• The Customer may at all times inspect his data recorded in Kemeling's files and request amendment thereof. Such a request may be submitted by e-mail ([email protected]).
• The Customer indemnifies Kemeling against any and all claims and demands from third parties, by whatever name and on whatever grounds, including but not limited to claims to pay damages, costs and penalties, in connection with the processing and/or storage and/or use of personal data within the scope of performance of the Agreement.

Article 9: Retention of title

• Kemeling retains title to all goods it has delivered to the Buyer until the purchase price for all such goods, including future goods, has been paid in full. Furthermore, the retention of title applies to any claims which Kemeling obtains against the Buyer on account of the Buyer's failure to perform one or more of his other obligations towards Kemeling.
• The Customer shall store the goods delivered subject to retention of title with due care and as Kemeling's property which is always recognisable. The Customer shall insure the goods against all usual risks for the duration of the retention of title. The Buyer hereby authorises Kemeling, on behalf of the Buyer, to (quietly) pledge to itself, within the meaning of Article 3:239 of the Dutch Civil Code, all its claims against the insurers pursuant to the aforesaid insurance policies, as additional security for Kemeling's claims against the Buyer.
• If the Customer fails to fulfil his payment obligations vis-à-vis Kemeling or Kemeling has good reason to fear that he will fail to fulfil his obligations, Kemeling may repossess the goods delivered subject to retention of title (or have them repossessed) at any time. After repossession, the Buyer will be credited for the market value (based on purchase price), which may in no case be higher than the original purchase price, less the costs involved in repossession.

Article 10: Provision of information and government measures

• The Customer shall provide Kemeling in good time with correct and complete information relating to the goods to be produced by Kemeling for the benefit of the Customer under the Agreement, including but not limited to high-quality drawings, calculations, all applicable laws and regulations, standards and norms, guidelines and codes (and any permits) and other relevant data. The Customer shall indemnify Kemeling against any and all claims and demands of third parties, by whatever name and on whatever grounds, in connection with the foregoing. All consequences - fines, losses and the like - as a result of or arising from the absence or late presence of the information referred to in the first paragraph of this article will be borne by the Customer.
• The Customer warrants to Kemeling that all (government) permits required for the work to be performed and for the normal performance thereof will be obtained and retained in good time. The Customer further warrants to Kemeling that the applicable national and international laws and regulations, standards and norms, directives and codes, including all applicable laws and regulations, including those pertaining to international trade, such as embargoes, import and export restrictions and sanction lists, and including laws and regulations relating to the combating and prevention of child labour, corruption, slavery, poor working conditions and terrorism, do not impede performance of the Agreement. The Customer shall indemnify Kemeling against any and all claims and demands of third parties, by whatever name and on whatever grounds, in connection with the foregoing.
• All consequences - fines, losses and the like - as a result of or ensuing from the failure to provide the information referred to in paragraphs 1 and 2 of this Article (on time) will be borne by the Customer.
• All consequences caused by the non-functioning of equipment made available by the Customer or (preparatory) work not correctly carried out by the Customer, such as, but not limited to, the provision of correct and complete data, shall be at the expense of the Customer. 

Article 11: Intellectual Property Rights

• Unless otherwise agreed in writing, Kemeling retains the copyrights and all other intellectual property rights (including trademark rights, design rights and patents) in the examples, calculations, drawings, models, designs, working methods, recommendations and products prepared and provided by Kemeling. These items are and shall remain the property of Kemeling and may not be copied, reproduced, shown to third parties or used in any other way without Kemeling's express permission, regardless of whether the Buyer has been charged for them. The Customer shall return these items to Kemeling at Kemeling's first request.
• Subject to Kemeling's prior written consent, the Customer shall only use examples, calculations, drawings, models, designs, working methods and advice (i) prepared and provided by Kemeling for the assessment of Kemeling's quotation and for the performance or monitoring of the relevant agreement (ii) remove them from its systems after performance of the agreement or return them to Kemeling at Kemeling's request; (iii) not use them for any other purpose; (iv) not provide them to third parties; and (v) not dismantle, not decompile, not reverse engineer, not adapt, not integrate and not combine them with other information or software or data. The Customer is also not entitled to make drawings of products delivered by Kemeling. These obligations are intended to protect Kemeling's (design and development) efforts, investments and trade secrets, whether or not they are protected by an intellectual property right.
• In the event of a violation of the provisions of paragraphs 1 and 2, the Customer shall forfeit a penalty of EUR 10,000 for each violation and for each day that a violation continues, including a part of the day, without prejudice to any other rights which Kemeling may enforce, for example, to request prohibition of the violation and to claim damages.
• The Customer shall indemnify Kemeling against any action based on the allegation that the copyrights and other intellectual property rights developed by Kemeling itself infringe any applicable third-party intellectual property right.

Article 12: Warranties, inspection and complaints

• The goods to be delivered by Kemeling comply with the usual requirements and standards which can reasonably be set for them at the time of delivery and for which they are intended in the event of normal use in the Netherlands.
• If the guarantee provided by Kemeling concerns an item which has been manufactured by a third party, the guarantee is limited to the guarantee provided by the manufacturer of the item, unless stated otherwise. If calculations with respect to the items delivered are based on a specific period, that period shall not be deemed to be the warranty period.
• Any form of warranty will lapse if a defect has arisen as a result of or as a result of injudicious or improper use thereof or use after the best-before date, incorrect storage or maintenance by the Customer and/or third parties when, without Kemeling's written permission, the Customer or third parties have made changes or attempted to make changes to the good, attached other items to it which should not have been attached to it or processed or adapted in a manner other than as prescribed. The Buyer will also not be entitled to any warranty if the defect has arisen due to or as a result of circumstances beyond Kemeling's control, including weather conditions and dynamic use of the delivered goods by the Buyer (such as trucks and ships).
• The Buyer shall inspect the delivered goods immediately upon delivery for any deviations from the agreed specifications.
• Any complaints, specifying precisely the facts to which these complaints relate, must be submitted to Kemeling no later than 14 days after actual delivery, failing which the Customer will be deemed to have irrevocably and unconditionally accepted the delivered/performed goods.
• Any right to complain shall lapse if and as soon as the Buyer uses the delivered goods for a purpose other than for which they are suitable according to objective standards or uses them for a purpose other than Kemeling could reasonably assume that they would be used or acts (or omits to act) contrary to the directions for use.
• Kemeling shall be obliged to take cognizance of any complaints submitted only if the Customer has complied with all his contractual obligations to Kemeling, on any grounds whatsoever. The Customer shall not be entitled to suspend or set off his obligations in connection with a complaint submitted by him.
• If the Customer's complaints are unfounded, the costs incurred as a result, including the investigation costs incurred by Kemeling, shall be borne in full by the Customer.
• If the Customer's complaints are well-founded, Kemeling shall, after consultation with the Customer, arrange for the redelivery of an item or service of the same or comparable kind within a reasonable period of time. The Buyer shall transfer the replaced goods or parts or documents provided in respect of the service to Kemeling on request or retain them for inspection for a reasonable period of time.
• If the Customer's complaints are well-founded but redelivery of the good or service within a reasonable period is not possible, Kemeling shall be entitled to deliver a good or service of the nearest kind or to apply a reasonable price reduction.

Article 13: Liability

• Except in the event of an intentional act or omission or gross negligence on its part, Kemeling shall not be liable for trading loss, property damage, personal injury or any other loss or damage whatsoever, incurred directly or indirectly by the Customer and/or third parties. Kemeling shall at most be obliged to redeliver the good or service or, if delivery is no longer reasonably possible, to apply a reasonable price reduction.
• Any liability of Kemeling is limited to the loss or damage which was foreseeable as a possible consequence of the act which gives rise to the obligation to pay compensation, subject to a maximum of the amount which is paid in that case pursuant to the liability insurance taken out by Kemeling, less the amount of the deductible which according to the policy conditions is not for the account of the insurer. If, for any reason whatsoever, no payment is made under the said insurance, any liability shall be limited to the net amount invoiced by Kemeling for the case or case in question.
• Without prejudice to the provisions elsewhere in these General Conditions, Kemeling shall never be liable for goods and/or services which it has obtained from third parties beyond the extent to which such third parties are liable to Kemeling and offer recourse.
• Kemeling shall not be liable (i) if the Customer has not promptly reported the damage to Kemeling in writing within 14 days after it has discovered or could have discovered it; or (ii) if the Customer has acted contrary to the operating instructions.
• Kemeling stipulates all statutory and contractual defences which it may invoke to ward off its own liability vis-à-vis the Customer, also for the benefit of its subordinates and non-subordinates for whose conduct it would be liable pursuant to the law.
• Without prejudice to the other provisions of this article and these general terms and conditions, any (legal) claims must be brought before the court no later than one year after delivery of the performance on pain of forfeiture.

Article 14: Indemnification

• The Customer shall fully indemnify Kemeling against any form of liability which might rest with Kemeling vis-à-vis third parties in respect of goods delivered or services rendered by Kemeling in so far as such liability does not rest with Kemeling pursuant to these General Terms and Conditions.
• If Kemeling is sued by third parties, the Buyer shall be obliged to assist Kemeling both extra-judicially and judicially and immediately do everything that may be expected of him in that case. Should the Buyer fail to take adequate measures, Kemeling shall be entitled to take such measures itself. All costs and losses consequently incurred on the part of Kemeling and third parties will be fully for the account and risk of the Customer.

Article 15: Force majeure

• Force majeure (non-attributable shortcoming) is understood to mean: every circumstance independent of the will of the parties, possibly unforeseeable, as a result of which Kemeling cannot reasonably be required (or can no longer be required) to perform the Agreement.
• Kemeling's force majeure shall in any event mean: strike, excessive absenteeism of Kemeling's personnel, fire, sabotage, government measures, internet, computer and telephone failures at Kemeling, unusual price increases, problems at suppliers, transporters and involuntary breakdowns or impediments as a result of which performance of the Agreement becomes more costly and/or problematic, such as storm damage and/or other natural disasters, as well as breach of contract (attributable failure) by auxiliary persons of Kemeling or the Customer, as a result of which Kemeling cannot (or can no longer) perform its obligations to the Customer (in a timely manner).
• If a situation of force majeure arises, Kemeling may suspend performance of the agreement or dissolve the agreement; the Buyer may do so, but only after Kemeling has failed to perform its obligations for 60 days following notice of default. In the event of dissolution in the event of force majeure, Kemeling shall not owe any compensation.

Article 16: Applicable law and disputes

• All legal relationships between the parties shall be exclusively governed by Dutch law.
• Disputes shall be settled exclusively by the (Interim Injunction Judge of the) Court of Rotterdam.