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KMA Terms & Conditions
GENERAL TERMS GENERAL CONDITIONS FOR SALE, DELIVERY AND PAYMENT OF KMA GROUP BV 1 1) Terms Supplier means KMA GROUP BV (KMA), its legal representative(s), and/or its attornies. Counterpart means every legal entity engaging in a contract with KMA or requests for a proposal or that receives a proposal from KMA, its representatives, legally entitled relations and heirs. Parties means KMA and the counterpart. 2) General a. These conditions apply for all offers and proposals issued by KMA and all transactions under whichever legal title. b. These conditions apply for all agreements with KMA, for the execution of which KMA uses third party services. c. Applicability of any conditions of the Counterpart is dismissed, whenever these conditions do not comply with the conditions of KMA. d. By contracting an order and/or by accepting the supplied goods, the counterpart accepts these conditions and is supposed to silently accept the general applicability of these conditions on any orders and/or instructions conveyed by the counterpart verbally and/or by means of e-mail, facsimile, letter or otherwise, without KMA necessarily having confirmed these orders and/or instructions in writing. e. In case any dispute arises about the interpretation of these consitions, the Dutch text is leading. f. Should differences exist between this text (i.e. of the general consitions) and the text in a proposal or any other commercial document, the latter is leading. 3) Proposals a. No proposal is binding, unless stated differently in the proposal text. All information conveyed in quotations, brochures and product information and other information are presented as precise as possible. These additional informations are binding only when this is indicated explicitly. b. In case a proposal comprises more than one component, KMA cannot be obliged to deliver part of the goods included in the proposal at a price pro-rata lower in relation to the fraction of the goods actually ordered. c. Proposed prices are only applicable for the corresponding quantities and are not automatically applicable for additional and/or extensions of any order. d. Submitting of proposals and/or other documentation doesn not automatically imply acceptance of the contract by KMA. e. KMA retains the right to refuse any order or contract or delivering goods at cost of the receiver without explanation or justification. f. Whenever KMA submits a sample, model or example of goods, this is intended to be demonstrated as an illustration. The design and/or appearance of the delivered goods may differ from the sample, unless expressly stated in writing that the corresponding goods should be delivered exactly in conformity with the presented sample. 4) Agreement a. KMA accepts agreements as binding only after receiving a confirmation in writing or after KMA has delivered the goods as agreed. b. Agreements established through representatives and/or sales agents only bind KMA after thay have been confirmed in writing or after KMA has delivered the goods. c. Additional agreements or changes to existing agreements are only binding for KMA after they are confirmed by KMA in writing. d. Agreements are accepted by KMA under the suspending condition that the counterpart is sufficiently creditworthy to execute their part of the agreement. Decisions relating to the creditworthiness of the counterpart are at the sole discretion of KMA. e. At or after engaging in an agreement, KMA is entitled to, before performing any services or continuing to perform services, demand security of the counterpart for payment and/or other agreed conditions. f. KMA is entitled to hire third parties to perform part of the services. Cost of any such services will be invoiced to the counterpart in conformity with the agreed prices. If so required, KMA will discuss this with the counterpart before invoking any such servies. g. In case it is are agreed between KMA and the counterpart that goods are to be delivered in more than one batch, unless explicitly stated differently in writing, the entire order will be delivered within 6 months after the contract date. If this is not the case, the KMA is entitled to invoice the remainder. For the period following the date of the invoice, the counterpart is due cost of storage of the goods to KMA. 5) Prices a. Unless differently stated in writing all quotations are conditional to intermediate changes in prices of materials. b. Unless differently stated prices quoted by KMA are: i. Based on the prices of goods procured by KMA for this contract, cost of wages, social securities and insurance premiums, cost of transport and other costs; ii. Based on delivery from the KMA factory, warehouse or other storage facility; iii. Exclusive of VAT, import duties, other taxes and rights; iv. Exclusive of cost of packaging, loading and unloading, transport and insurance of transport; v. Stated in amounts of EURO’s. c. KMA will notify the counterpart whenever it considers a situation a force majeure situation or foresees any such situation. KMA will contact the counterpart and, whenever possible, will propose a new delivery time. If this force majeure situation is of a temporary nature then KMA reserves the right to postpone the delivery for the duration of the situation. d. In case the force majeure situation is lasting, then KMA and the counterpart will discuss ways to unbind the contract and its effects. e. KMA retains the right to claim payment of (that part of) the goods and services that have been delivered prior to the force majeure situation occurred and/or appeared. 10) Liability a. KMA is not liable for any damage, direct or indirect, including damages to real estate, assets, persons, inflicted to the counterpart or third parties. In case of third parties, KMA is not liable if: i. Damage is caused by the use or the processing of the deliverd goods; ii. The delivered goods are assembled to an end-product, for which end it is not meant to be used and/or unfit to be used; iii. The delivered goods turn out not to be fit for the purpose it was intended and purchased for; iv. The counterpart protects KMA against all claims of third parties, resulting from their use of goods delivered by KMA to third parties; v. Excluded from the subarticles above are intentional underperformance or gross misconduct of KMA and/or its employees insofar as they act according to instructions of their management. Liability shall never be greater than the nett value of the goods delivered; b. Once the delivered goods are accepted, processed or assembled into an endproduct by the counterpart or its third parties without written complaint, KMA cannot be held liable and is held free of any claim by the counterpart and/or its third parties to pay for any damages, whatever the cause of the damages. c. This limitation of the liability applies to the extent that KMA insurers do not cover the risk of any such damages inflicted upon the counterpart and/or third parties. 11) Complaints a. Complaints will only be accepted by KMA if they are submitted in writing within 8 days after delivery of the goods, stating in detail the nature of the complaint. b. Complaints about invoices shall be submitted in writing within 8 days after the invoice date. After this date the counterpart is deemed to have accepted the goods and/or the invoice. In case a complaint is received after this date the complaint is not accepted. c. In case the complaint is accepted then KMA is obliged to replace the goods for which the complained was submitted. The counterpart cannot claim any rebate, discount or other compensation. d. The submission of a complaint never frees a counterpart of his obligation to pay any invoices of KMA. e. The goods can only be returned after prior written consent by KMA. 12) Ownership a. All goods delivered by KMA remain property of KMA until the moment that all payments due to KMA have been paid by the counterpart. b. In case of non-payment of any amount, suspension of a payment, filing for surceance, deconfiture, legal restraint, decease, liquidation of the business(es) of the counterpart, KMA retains the right to, without further notification and without legal intervention to cancel the order or whatever would remain to be delivered of the order and to claim by return the delivered goods as property of KMA. In those cases, every claim to the counterpart shall be executed immediately. c. The goods may be resold or used in the course of normal conduct of business but shall not be allowed to serve as collateral or as a security for any claim of a third party on the counterpart. The counterpart is obliged to supply KMA relevant details in writing within 2 days of the third party buyer and the conditions and price of the sale. As long as the counterpart fulfills his obligations to KMA, KMA has no right to assume rights to transaction, after which the third party and/or the counterpart shall fulfill his obligations to KMA. d. As a collateral for the exact payment of any liabilities to KMA, on the origin of the liability, KMA retains the right of ownership on all goods remaining in possession of the counterpart. 13) Copyright and confidential information a. KMA remains the owner of any intellectual property rights, including copyrights and modelrights comprising pictures, drawings, models, calculations, sketches, films, photographs, software, electronic data and files and other descriptions including catalogues, brochures with regard to the delivered goods, unless stated differently in writing. b. The counterpart is not allowed to use the rights mentioned in subarticle a) in any way, though not limited to reproduction, without written consent of KMA. GENERAL TERMS GENERAL CONDITIONS FOR SALE, DELIVERY AND PAYMENT OF KMA GROUP BV 2 c. In case of an increase of one or more of the abovementioned cost components, KMA is entitled to increase the price of the contract correspondingly, taking into account any legal regulations that may exist and provided that higher cost of such components were included in the price at the contract date were they known at that time. d. In case changes in price result from a legal reason then this circumstance is binding for KMA as well as for the counterpart. 6) Delivery and delivery time a. Unless differently agreed, delivery happens from the factory or the warehouse of KMA. The delivery time and date are the time and date at which the goods are delivered form the KMA warehouse. Delivery free of charge is only accepted by KMA if so agreed in writing. b. The counterpart is obliged to check the delivered goods for shortages and/or damages or execute such checks after KMA has informed the counterpart that the goods are ready for shipment. c. Any shortages or damages of the goods or of the packaging on delivery is to be clearly indicated on the bill of lading, the invoice and/or on the transportation documents. KMA only accepts such complaint if it is received within 8 days after receiving the goods. If such complaint is not received by KMA within this period, the counterpart is deemed to have approved the goods. In that case complaints will not be taken into account. d. Small differences in colour, shape, model and such, deemed to be acceptable in the sector, as well ad differences in amounts of 5% or less, are acceptable for the counterpart, unless stated differently in writing. e. KMA maintains the right to deliver in batches, which shall be invoiced separately. The counterpart shall pay these invoices as stated elsewhere in these general conditions. The agreed delivery times are always an indication, unless differently stated in writing. KMA expressly excludes any liability that may be the consequence of any late delivery. f. In case the goods are not collected by the counterpart after the delivery time has passed, the goods are stored for his account and risk. 7) Cancellation and refusal to buy a. Cancellation by the counterpart of an order accepted by KMA is only valid if stated in writing and send by registered mail to KMA. b. If KMA has agreed with the cancellation, the counterpart agrees to compensate KMA for all cost incurred with respect tom this order, all damage KMA has suffered and is expected to suffer as a result of the cancellation, including expected profits, taking into account any other rights of KMA. KMA is entitled to invoice 15% of the contracted amount as a fine. c. In case a counterpart refuses contracted goods within the agreed delivery time then subarticle a) above rules taking into account that the goods are at the disposal of the counterpart and that the goods will be delivered only after the counterpart has paid any unpaid invoices in full including additional cost such as interest, cost of storage and other cost, however the case may be. 8) Transport and risk a. If the counterpart has not provided specifications on these matters, KMA will choose the means of transport, expedition and packaging as a good merchant, without KMA accepting any liability. Any wishes or demands of the counterpart will be fulfilled only if the counterpart assumes the corresponding additional cost. b. Unless differently agreed, risks of damages relating to expedition of goods are on account of the counterpart, including in those situations when the transport company indicates on transport documentation that the risks are on account of the sender or if the transport is free of charge. c. Delivery per mail or courier and deliveries to other countries only take place when paid in advance or if the cost is accepted by the counterpart or when a letter of credit is issued, unless differently agreed in writing. d. For deliveries with an amount less than € 250 an additional cost of € 25 ‘administrative cost’ will be invoiced. 9) Force Majeure a. This is defined as any circumstance that is occurring independent of the will of either of the parties and unforeseeable, by which the execution of the contract by KMA cannot reasonably be expected by the counterpart. b. Force majeure at least includes labour strike, unusually high sickleave, unforeseen problems of transport, fire, effects of (changes in) government policies including import and export limitations, disturbances in business conduct at KMA or at its suppliers, including their un(der)performance through which KMA cannot meet its responsibilities to the counterpart. c. The counterpart warranties KMA against every action of third parties based on infringement of the right of intellectual property with regard to orders granted to KMA. d. KMA regards all orders and contracts including the information submitted by the counterpart required for the execution of the order as confidential. The orders and related information is treated as such. Unless forced by legal regulations, KMA shall not provide any such informations to third parties. e. The counterpart is not allowed to make changes to delivered goods, unless it is stated otherwise in writing. f. All such confidential information is supposed to be used by the counterpart only and shall not be multiplied, published or in any way be made available to third parties, without written permission of KMA, unless stated otherwise in writing. g. KMA retains the right to use knowledge acquired through the execution of the activities for a certain order for different purposes inasmuch as no confidential information is conveyed to third parties. 14) Payment a. Unless differently agreed in writing, payments must be made nett on delivery without any form of discount or balancing of mutual claims by transferring the amount due to the the agreed bank account, within 30 days after the invoice date. The date of payment on the bank statement shall be the day of payment. b. Every payment by the counterpart will first compensate any unpaid interest, then any cost of invordering, then administration, then the payment will be balanced against the oldest unpaid invoice, then the on-but-the-oldest, etcetera. 15) Dissolution of an agreement a. Whenever a counterpart does not or not in a timely fashion comply with an agreement with KMA, then KMA shall rightfully dissolve all agreements with the counterpart by a single written notice, without any obligation to deliver to the counterpart and without any legal intervention being required while keeping all rights in vigor under the agreement intact, including the right for indemnification, including any cost of legal procedures. b. In case the counterpart: i. Enters in a state of bankruptcy, applies for a moratorium of payment, requests financial restructuring of a natural legal antity or is confronted with seizing of part or whole of his property; ii. Deceases or is put under guardianship; iii. Is not fulfilling any of the legal obligations that result from the law or from this agreement; iv. Does not pay any invoice or a part of an invoice within the agreed period; v. Ceases or transfers his business activity, including transferral of the business activity to an existing or newly established legal entity, or changing the statute of his company; Then KMA has the full right to either dissolve the agreement without any legal intervention being required, or immediately and without prior notice claim any amount in its entirety that the counterpart owes to KMA based on goods or services delivered by KMA, notwithstanding any existing rights of KMA to the satisfaction of costs, damages and interests. 16) Interest and costs a. Whenever a payment is not received within the payment time mentioned in article 14 above, the counterpart is legally negligent and is due an interest equal to the legal interest on the amount remaining unpaid. b. All legal and other costs are to be paid by the counterpart. The costs of collection amount to at least 15% of the unpaid amount. 17) Applicable law and disputes a. Dutch law is applicable to all proposals, contracts and other document, commercial or otherwise whenever this differs from the TREATY of the UNITED NATIONS regarding INTERNATIONAL PURCHASING AGREEMENTS regarding TANGIBLE ASSETS (UN-purchase treaty, trb). 1981, 184 and 1986, 61). b. All differences, including those that are seen as such by only one of the parties, resulting from or relating to with the agreement to which these conditions apply or regarding the conditions themselves as well as their interpretation or explanation, of a legal nature or of a factual nature will be ruled upon by a Court of Law in the applicable region in The Netherlands inasmuch as legal regulations allow. The conditions of article 1 above leaves KMA the right to present the difference to a competent Court of Law or ask an arbitrage ruling or a binding advice. c. These general conditions are registered at the Chamber of Commerce of Leeuwarden, The Netherlands, February 14, 2007.