GENERAL TERMS AND CONDITIONS of KRAFTON ADBLUE CONTAINERS B.V. and KRAFTON PROFIELEN B.V. and KRAFTON PROJECTS B.V.
As filed with the Chamber of Commerce of Breda.
1. These terms and conditions apply to all offers, orders and contracts for work and/or sale of items made by, issued to, or entered into by KRAFTON ADBLUE CONTAINERS B.V. and/or KRAFTON PROFIELEN B.V. and/or KRAFTON PROJECTS B.V. in Heijningen (all referred to hereinafter as: Krafton).
2. References hereinafter in these terms and conditions to accepting or fulfilling an order are also understood to mean entering into a contract, or fulfilling obligations under a contract.
3. Deviations from these terms and conditions of Krafton, or the terms and conditions of the other party to the contract (hereinafter: the client), are only valid or applicable if Krafton has confirmed its acceptance thereof in writing. In the event of a conflict between these terms and conditions and those of the client, these terms and conditions take precedence.
4. If these terms and conditions have on any occasion applied to a legal relationship between Krafton and a specific client, they shall continue to apply to all subsequent legal relationships between Krafton and that client, unless agreed otherwise in a special case.
5. If any provision in these terms and conditions is found to be invalid, the parties are expected to agree a valid substitute provision that reflects the purpose and purport of the original provision as closely as possible, and this shall not prejudice the applicability of all the other provisions of these terms and conditions.
1. All offers made by Krafton are non-binding, unless specifically specified otherwise, and may be withdrawn by Krafton within a period of 3 days following their acceptance by the client.
2. Offers are always based on the information provided by the client and assume performance under normal and foreseeable circumstances.
3. Offers are valid for sixty days, unless stated otherwise, and each offer is superseded by any subsequent offer.
4. All documents and information such as drawings, designs, illustrations, brochures, price lists, calculations, dimensions, weights, etc. that accompany an offer are provided in good faith but are not binding for Krafton; Krafton is authorised to make changes to those documents and that information at any time.
5. The documents and information provided with an offer, within the meaning of 4. above, remain the property of Krafton at all times. The client may not copy these documents and information, show them to others or use them in any way whatsoever.
III Formation of agreements
1. Orders that have been awarded only become binding for Krafton when Krafton confirms them in writing, or when Krafton starts to process them.
2. In the case of work of such a nature and scope that Krafton has not produced an offer or confirmed acceptance, and/or the client has not sent an order confirmation, the invoice sent by Krafton in this matter is deemed to be the confirmation of order if the client does not object to that invoice during a period of fourteen days or more following its receipt.
3. Changes and additions to orders that have been awarded only become binding for Krafton after it has confirmed its acceptance thereof in writing.
4. Agreements with, or pledges or announcements made by employees of Krafton only become binding for Krafton after they have been confirmed in writing on Krafton’s behalf by authorised representatives of the company, as named in the Trade Register.
1. Unless stated otherwise, the prices quoted by Krafton are based on ex warehouse delivery. If Krafton arranges transport, packing and/or insurance, it does so at the instruction of and on behalf of the client, and therefore at the client’s expense and risk. In such cases, Krafton is free to determine the carrier, means of transport and/or insurance. Krafton shall do so in good faith without incurring any liability whatsoever.
2. All prices are exclusive of turnover tax or any other taxes and/or levies imposed by the government in relation to the delivered services or goods. Krafton shall be permitted to charge these taxes and/or levies to the client.
3. All prices are based on the exchange rates and price level at the time of making the offer, respectively the time when the agreement is concluded. If subsequent changes occur in relation to the exchange rates and/or the prices of raw materials or materials, wages, salaries or social charges or other factors that determine the cost price, Krafton shall be entitled to charge them to the client.
4. If the circumstances under which an order is to be fulfilled undergo changes relative to what was normal and foreseeable at the time of accepting the order, Krafton shall charge the extra costs ensuing from this change or changes to the client.
5. All changes to the order, regardless of whether they take place at the client’s request, or are necessary for other reasons, shall be seen as contract extras if they result in additional costs for Krafton, and as contract deductibles if they result in cost savings for Krafton. Contract extras shall be invoiced immediately by Krafton. Contract deductibles shall be netted by Krafton against the payment for (the last instalment, if applicable, of) the principal amount.
V Performance on the part of Krafton
1. Krafton shall fulfil the assignments awarded to it in accordance with the standards for good and proper work, in line with the purchase order awarded to it. Krafton shall be authorised to involve third parties in order to fulfil the order if it deems this necessary or desirable.
2. Krafton’s performance is limited to fulfilment of the assignment in accordance with the description of the work in the offer, the purchase order or other documents that underpin the legal relationship between the parties. In the event of conflicts between these documents, the last description originating from, or accepted by, Krafton takes precedence.
3. Preparatory and additional tasks that are not stated in the description are not part of Krafton’s performance and shall, insofar as they are carried out by Krafton, be considered to be contract extras.
4. The client must ensure that the information required by Krafton in order to comply with its performance obligations is made available to Krafton in good time, unless Krafton is to provide that information itself under the terms of the purchase order.
5. If the start, or progress, of the work to be performed by Krafton is prevented or delayed by factors that are not attributable to Krafton, the client must pay Krafton compensation for the costs incurred or damage suffered by Krafton as a result.
VI Execution and delivery
1. The periods stated by Krafton for execution or delivery are purely indicative and non-binding for Krafton. The client cannot assert any rights in the event of time overruns.
2. The stated periods for execution or delivery only start when the client has made all the required information available to Krafton and are extended each time by the period during which the client fails to comply with any obligation in respect of Krafton and/or the time required by Krafton for carrying out the work required for contract extras or changes made to the original order.
3. Krafton shall be entitled to fulfil the client’s orders in phases and submit separate invoices for these phases.
4. Goods are deemed to have been delivered when they have been set down or offered for delivery by Krafton at the agreed location.
1. When the goods are delivered, the client must check them for possible missing items, abnormalities or visible damage or faults and, if any such problems are detected, note them on the shipping documents and report them to Krafton within fourteen days.
2. Damage, abnormalities or faults that cannot be detected by visual inspection must be reported to Krafton within fourteen days.
3. Failure to observe the above periods invalidates all claims submitted by the client in relation to alleged missing items, abnormalities, damage or faults.
4. The client must allow Krafton the opportunity of investigating the accuracy of submitted claims and, if necessary, resolving the complaints.
VIII Transfer of risk and ownership
1. The risk for the delivered items transfers to the client at the time of delivery or further processing of those items.
2. However, Krafton retains ownership of all the goods it delivers for as long as the client has not met all its payment obligations relative to Krafton pursuant to delivery or fitting thereof.
3. If the items delivered by Krafton shall be incorporated in existing or future movable goods, in such a way that they (shall) lose their autonomy, the client shall have an obligation to (i) inform Krafton of this in writing beforehand, and (ii) pledge the movable items concerned to Krafton at Krafton’s first request, or alternatively provide collateral equivalent to at least the invoice value including taxes and/or levies of the items delivered by Krafton, on pain of becoming liable for a penalty amounting to EUR 5,000 for each day that the client fails to comply with each of these obligations.
4. The client shall have an obligation to handle the delivered items with care, maintain them and insure them against damage, loss or destruction for as long as Krafton retains ownership.
5. The client shall be authorised to use and transfer delivered items that are still the property of Krafton within the scope of its normal business affairs, but may not otherwise sell, encumber or grant any right or claim to third parties in respect of those items.
6. If the items that are still owned by Krafton are sold on to third parties and those third parties do not immediately pay the full selling price that is due, the client shall have an obligation to (i) inform Krafton of this in writing prior to the sale, and (ii) pledge the payables in question to Krafton at Krafton’s first request, on pain of becoming liable for a penalty amounting to EUR 5,000 for each day that the client fails to comply with each of these obligations.
7. The client has an obligation vis-à-vis third parties (such as creditors making an attachment) to always unambiguously confirm Krafton’s ownership rights ensuing from the previous paragraphs, as soon as there is a risk that these third parties shall see the items in question as the property of the client and always inform Krafton immediately of any petition, submitted by itself or by others, for its bankruptcy, for suspension of payments, for seizure of (part of) its assets, or any other circumstances in which it might be important for Krafton to exercise its aforementioned ownership rights.
8. Without prejudice to its further rights, Krafton shall always be irrevocably authorised to take back the items that still belong to it based on the aforementioned provisions if the client is in default of any obligation it has in respect of Krafton. The client gives Krafton permission in advance to enter the buildings and yards where such items may be stored.
9. The client shall report the delivered items that are still the property of Krafton in a separate section under the assets recognised on its balance sheet.
10. The risk of damage to or destruction of previously delivered projects or projects that are still ongoing is always for the client’s account, unless caused by an attributable breach on the part of Krafton.
IX Right of retention
Krafton shall be entitled to retain everything in its possession that belongs to the client until it has received full settlement of all payables owed to it by the client.
1. Invoices must be paid by bank transfer to an account held in the name of Krafton within thirty days from the date of dispatch.
2. Unless expressly agreed, the client may not set off anything against the amounts owed to Krafton by the client. Complaints or objections do not suspend the obligation to make payment.
3. If the client is late with any payment, it shall be liable to pay interest at a rate of 1.5% per month or part of the month over the overdue amount, without the need for a reminder or notice of default, to be calculated from the due date, without prejudice to all other rights of Krafton.
4. If, after receiving a demand for payment, the client continues to default in respect of the amounts owing, Krafton shall be authorised to delay fulfilment of the order or stop work for the order until the client has settled its payment obligations. The periods stated by Krafton for performance or delivery shall be extended by the resulting delay.
XI Force majeure
1. If Krafton is prevented from (further) fulfilment of an order, it shall not be liable for any resulting damage and shall be entitled, without any obligation to pay damage compensation, to either dissolve the agreement in question, or partially or fully suspend further fulfilment thereof for as long as the situation of force majeure continues.
2. In the event of dissolution of the agreement due to force majeure, Krafton shall be entitled to payment for everything that it has done up to the time of dissolution.
3. Force majeure is understood to mean any circumstance outside Krafton’s control, either foreseeable or not foreseeable, which fully or partially prevents fulfilment of the order, or which makes fulfilment of the order so difficult that it cannot reasonably be expected of Krafton, such as, but not exclusively, armed conflict, the threat of armed conflict, hostilities, insurrection, riots, government measures, fire, explosion, storms, flooding, earthquakes, strikes, transport problems, embargoes on imports, exports and transshipment, and non-delivery or late delivery on the part of suppliers.
1. If, within six months following the delivery of the items, defects arise that can be attributed to inadequate dimensional stability, faulty materials or manufacturing errors, the items in question shall be repaired at no charge by Krafton.
These defects must be reported to Krafton within fourteen days, or as soon as reasonably possible, following detection.
Krafton shall however, as an alternative to repair, be entitled to replace the defective item or a defective element, or be entitled to repay the purchase amount and take back the defective item.
2. The items must be inspected by the client upon delivery, or if that is not reasonably possible, as soon as inspection can take place.
3. Krafton is not liable for defects that do not become apparent until six months after delivery, and defects that, within that period, are not reported to Krafton within fourteen days after their detection, or after the client could reasonably have been expected to detect them.
4. Krafton never has an obligation to take any action other than the actions described under 1. in respect of defects in delivered items. All liability for damage caused by defects, both direct damage and consequential damage, is expressly excluded.
5. Krafton is not liable for failings and defects that:
a. can be attributed to the nature of the structure to which the items are fitted by the client, overdue maintenance, normal wear and tear, discolouration, improper use, fire and other emergencies, leaks and atmospheric effects.
b. arise in items that are worked on by parties other than Krafton following delivery.
6. Krafton is not obliged to repair defects for as long as the client has not fulfilled its obligations in respect of Krafton.
7. If suppliers offer warranty in respect of components used in items delivered by Krafton, Krafton shall not be liable in respect of the client for defects in those components other than to the extent that the supplier in question is liable in respect of Krafton according to the terms and conditions of warranty that apply in each specific case.
8. The client indemnifies Krafton against third party claims for compensation of damage that arises from or is associated with items delivered by Krafton.
9. All liability on the part of Krafton in respect of defects in the delivered items lapses as soon as the items in question are transferred to third parties by the client.
1. If the client fails to comply with any obligation, Krafton shall be entitled to suspend or delay fulfilment of the order fully or partially, or dissolve the agreement without judicial intervention.
2. All costs and damage incurred by Krafton as a result of the client’s continuing default shall be charged to the client.
3. Failure to comply with any obligation puts the client in default without the requirement for any further notice of default.
4. Krafton shall also be entitled to dissolve the agreement without judicial intervention:
a. if the client requests a moratorium on payments;
b. if the client is declared bankrupt;
c. if any attachment is made to the client’s assets;
d. if the client dies;
e. if the client is placed under administration or fully or partially loses the right to dispose freely of its assets.
All costs that Krafton deems that it must incur to defend or exercise its rights in respect of the client, both judicially and extrajudicially, shall be charged to the client.
XV Choice of law and forum
1. The legal relationship between the client and Krafton is governed by Dutch law.
2. All disputes between the client and Krafton, including disputes that are only considered to be such by one of the parties, shall exclusively be settled by the competent court in the court district of Breda.