Krafton General Terms and Conditions
These general terms and conditions (“these terms and conditions”) consist of a General Part (chapter A) and a Special Part (chapters B and C):
A. general provisions Clauses 1-11
B. the delivery of Products Clauses 12-16
C. the performance of Work Clauses 17-25.
In addition to the general provisions of chapter A, the provisions of chapters B and C apply in so far as the Agreement relates to the delivery of Products and the performance of Work, respectively.
In the event of any inconsistencies between the General Part and the Special Part, the latter will prevail.
A. general provisions
In these terms and conditions, the following terms have the following meanings:
Krafton: one or more of the following private limited liability companies: Krafton Profielen B.V., Krafton Projects B.V., Krafton Adblue Containers B.V. and Krafton Deutschland B.V., all with their official seat in Heijningen;
Client: the Person with whom Krafton has concluded an Agreement or with whom Krafton is negotiating in this respect;
Agreement: each agreement between the Parties, whether this is a framework agreement or an individual agreement, for the delivery of Products and/or the performance of Work by Krafton, any changes or additions to this agreement, as well as all actual and juridical acts in preparation and performance of this agreement, including offers from Krafton;
Parties: Krafton and the Client;
Person: the natural or legal person or unincorporated entity;
Products: all tangible property that is the object of an Agreement;
Work: all work, advice and other work and all services that are the object of an Agreement.
In these terms and conditions, “written” will also be understood to mean: by fax and by e-mail.
2.1 These terms and conditions apply to all Agreements, including future Agreements.
2.2 THE APPLICABILITY OF GENERAL TERMS AND CONDITIONS USED BY THE CLIENT IS EXPRESSLY REJECTED.
2.3 Clauses deviating from these terms and conditions will only be binding if they have been laid down in writing and signed by the Parties and will only apply to the case in question. None of the rights the Client derives from deviating clauses as meant here can be relied upon in relation to future Agreements.
2.4 Krafton is at all times authorised to engage third parties for the performance of the Agreement.
2.5 All clauses in these terms and conditions have been laid down not only for Krafton, but also for the following Persons, who may invoke this third-party clause at any time: (i) the directors and shareholders of Krafton (including its indirect directors and shareholders), (ii) all Persons who work or have worked for Krafton, (iii) all Persons engaged by Krafton in the performance of an Agreement, and (iv) all Persons for whose acts or omissions Krafton could be liable.
2.6 In the event that Krafton does not require strict compliance with these terms and conditions, this will not mean that Krafton loses the right to require strict compliance with these terms and conditions in future cases, similar or otherwise.
2.7 If any provision of the Agreement and/or these terms and conditions cannot be relied on for whatever reason, this provision must, to the extent possible, be interpreted in terms of content and purport in conformity with the ordinary meaning and in such way that it can be relied on. Any invalidity of a part of the Agreement and/or these terms and conditions will not affect the validity of the other part of the Agreement and/or these terms and conditions.
2.8 If these terms and conditions are drawn up in a different language than Dutch and there is a difference of opinion regarding the content or purport of the terms and conditions, the Dutch text will be binding.
3. Offers, Agreements
3.1 All of Krafton’s offers are without obligation and are valid for thirty (30) days unless stated otherwise. Krafton has the right to revoke its offer within three (3) working days after receipt of acceptance.
3.2 All documents and data, such as drawings, designs, images, brochures, price lists, specifications, technical details, calculations, dimensions, weights, etc. provided with the offers are always approximations and will only be binding on Krafton if this is expressly confirmed in writing.
3.3 Offers and documents and data provided with the offer remain the property of Krafton even if the Client was charged for these. The Client is not permitted to provide third parties with, or allow third parties to inspect, the original or a copy of the offers, documents and data referred to here without Krafton’s prior written permission. The Client will owe Krafton an immediately due and payable penalty of 10% of the total amount mentioned in Krafton’s offer for each violation of this prohibition, with a minimum penalty of EUR 500 for each violation, without prejudice to Krafton’s right to claim damages.
3.4 An acceptance by the Client that deviates from Krafton’s offer, whether or not on minor points, will always be deemed a rejection of this offer and a new offer by the Client. An Agreement will only be concluded in accordance with this new offer after written acceptance by Krafton.
3.5 An Agreement will be concluded when:
(a) three (3) working days have elapsed since Krafton received the Client’s acceptance and Krafton has not revoked its offer during this period; or
(b) Krafton confirms the Agreement in writing; or
(c) Krafton commences performance of the Agreement.
3.6 Arrangements or changes made after the conclusion of the Agreement will only bind Krafton if it has confirmed these in writing.
3.7 Arrangements with and commitments or statements by Krafton’s employees will only be on Krafton after these have been confirmed in writing on behalf of Krafton by Persons authorised to do so according to the Commercial Register.
3.8 If Krafton concludes an Agreement with two or more Persons, each of these Persons will be jointly and severally liable for the full performance of the obligations arising from that Agreement.
3.9 Krafton is authorised to transfer the Agreement or one or more of its rights and/or obligations under the Agreement. Except with prior written permission from Krafton, the Client is not permitted to transfer the Agreement or one or more of its rights and/or obligations under the Agreement. In addition to its effect under the law of obligations, this prohibition also has effect under property law (within the meaning of Article 3:83(2) of the Dutch Civil Code).
3.10 Unless agreed otherwise between the Parties or unless the nature of the Agreement stipulates otherwise, the Agreements will be considered to have been concluded for an indefinite period of time. The Parties are always entitled to terminate an Agreement for an indefinite period of time by giving notice with due observance of a notice period of three (3) months. Notice of termination must be given in writing.
4. Prices and fees
4.1 Unless the Parties agreed otherwise in writing, the prices (in case of the delivery of Products) and fees(in case of the performance of Work) will be stated in euros and are exclusive of turnover tax and other taxes and levies.
4.2 Krafton is not obliged to honour an offer and/or an Agreement at a stated price or fee if this is based on a printing and/or writing error.
4.3 The prices and fees are based on cost-determining factors at the time the Agreement was concluded, including but not limited to exchange rates, prices of raw materials and materials, wages, salaries and social security contributions. If there is a change in these factors after the Agreement has been concluded but before delivery of the Products or the performance of the Work, without Krafton being able to exercise reasonable influence over this, Krafton will be entitled recharge the Client for the resulting costs.
4.4 Krafton is entitled to periodically change the amount of its prices and fees. The new prices and fees will also apply to current Agreements as of the change date. If a change entails an increase of more than 10% or if an increase takes place within three months after the Agreement is concluded, the Client is entitled to terminate the Agreement. The right to terminate lapses on the fifteenth day after the written notice of the increase.
5.1 Payments must be made within thirty (30) days after the invoice date or as much earlier as agreed, unconditionally and without discount, deduction, withholding, set-off or suspension by whatever virtue. The Client will not have any self-garnishment imposed.
5.2 Complaints with regard to an invoice of Krafton must be made known in writing to Krafton within seven (7) days after the date of that invoice and stating the reasons, failing which the Client is deemed to have unconditionally accepted the invoice as being correct.
5.3 Without notice of default being required, the Client is in default by the expiry of the payment term.
5.4 If the Client is in default with any payment, all claims of Krafton against the Client will be immediately due and payable in full.
5.5 During its period of being in default, the Client will owe default interest of 1.5% per month or part of a month on the outstanding claims.
5.6 All internal and external costs incurred by Krafton in connection with the collection of invoices and/or the assessment of the loss and liability and/or the collection of claim amounts, including but not limited to the actual lawyer’s fees, bailiff’s costs, expert and translator costs incurred by Krafton, will be borne by the Client.
5.7 In the case of extrajudicial collection, in addition to the principal sum and the loss due to delay, the Client will owe the collection costs actually incurred by Krafton. The extrajudicial collection costs will amount to at least 15% on the first EUR 5,000 (with a minimum of EUR 250), 10% on the excess up to EUR 10,000, 8% on the excess up to EUR 20,000, 5% on the excess up to EUR 60,000 and 3% on the excess above EUR 60,000.
5.8 Regardless of the designated sequence of allocation, payments made by the Client will always first be set off against the costs (including but not limited to the extrajudicial collection costs), then against the interest accrued at that time and finally against the principal sum and the current interest. With regard to the principal sum, the payments will always first be allocated to the invoice that has been outstanding the longest, even if the Client states that the payment relates to a different invoice.
5.9 In response to a request to that effect from Krafton, which may be made both prior to and during the performance of the Agreement, the Client will make a full or partial advance payment or provide adequate security for the performance of its obligations at its own expense. Adequate security is in any case understood to mean a bank guarantee payable on Krafton’s first demand, furnished by a first-class Dutch bank, in the amount of 110% of the amounts owed by the Client (100% of these amounts with a surcharge of 10% for interest).
5.10 Krafton is at all times entitled to set off the amounts it owes by whatever virtue to the Client or any Person affiliated with it (the “Client et al.”) against the amounts that Krafton or any Person affiliated with it (“Krafton et al.”) has to claim from the Client et al. by whatever virtue. The authority to set off referred to herein also exists if the payment of the claims is not yet enforceable and if the performance that Krafton et al. can claim does not meet its debt.
6. Suspension, termination
6.1 Without prejudice to its other rights pursuant to the law and/or the Agreement and/or these terms and conditions, Krafton is authorised to suspend its obligation or, without any notice of default or judicial intervention being required, to terminate the Agreement in whole or in part by means of a written notification to the Client if:
(a) the Client fails to fulfil one of its obligations, or fails to do so in good time or properly;
(b) Krafton has good reason to fear that the Client will fail to fulfil one or more of its obligations;
(c) the Client has been declared bankrupt or has filed for bankruptcy;
(d) the Client has been granted a suspension of payments, provisional or otherwise, or a request to that effect has been made;
(e) a statutory debt restructuring arrangement has been declared applicable in respect of the Client or a request to that effect has been made;
(f) the Client’s company is wound up; or
(g) if goods of the Client were seized in execution or if a prejudgment seizure of said goods was not lifted within one month after the date of seizure.
6.2 If the Client’s default under both the law and the Agreement and these terms and conditions commences only after a notice of default has been given, then Krafton will in the case referred to in paragraph 1(a) of this Clause not terminate the Agreement in whole or in part until it has sent the Client a written demand setting a reasonable period for performance and performance has not taken place within this period.
6.3 In the event of full or partial termination of the Agreement by Krafton, all its claims against the Client will be immediately and fully due and payable and the Client will forfeit an immediately due and payable penalty of 25% of the amount owed, without prejudice to Krafton’s right to claim damages.
7. Intellectual property rights
7.1 All intellectual property rights regarding Products and Work or related to the delivery of Products and the performance of Work, including but not limited to trademarks, design rights, trade names, patents, copyrights and domain names, all in the broadest sense of the terms(“IP rights” or, in the singular, “IP right”) will vest exclusively in Krafton and its licensors.
7.2 The Client is not permitted to use one or more of the IP rights or similar intellectual property rights as a part of its company, trade name and/or brand name, and/or to register them or have them registered in its own name or to infringe an IP right in any other way.
7.3 For each infringement of an IP right, the Client will forfeit an immediately payable penalty of EUR 50,000, plus an immediately payable penalty of EUR 5,000 for each day, including part of a day, on which the infringement continues. This penalty clause does not affect Krafton’s other rights, including but not limited to its right to claim damages.
7.4 On condition that the Client immediately notifies Krafton in writing of any liability claims or legal measures against it based on the assertion that Products delivered or Work performed by Krafton infringe(s) an intellectual property right, Krafton will engage a lawyer who will put forward a defence at Krafton’s own expense. The Client, who has the right to also engage a lawyer at its own expense, will lend its full cooperation in putting forward a defence. The indemnification described in this Clause 7.4 does not apply if the Client has made changes or arranged for changes to be made to the Products delivered or the Work performed by Krafton, or used the Products or Work in a manner other than prescribed by Krafton.
7.5 Without prejudice to the provisions of Clause 9 of these terms and conditions, Krafton will not be liable to the Client in any other way than described in Clause 7.4 of these terms and conditions for infringement , or harm or loss due to infringement, of intellectual property rights.
7.6 The Client will indemnify Krafton against claims of third parties stating that the presence or use of tangible property and/or data made available by the Client to Krafton infringes any IP right or any other right of that third party. The Client will compensate all costs incurred by Krafton in relation to such claims of third parties, including the costs for legal assistance.
8. Force majeure
8.1 Force majeure (non-attributable failure to perform) must be taken to mean: any circumstance not attributable to Krafton’s fault in the subjective sense which makes it impossible or, as a practical matter, too onerous for Krafton to perform or further perform its obligation or part thereof, including – but explicitly not limited to – force majeure and/or failure to perform (attributable failure to perform) and/or unlawful acts on the part of suppliers or carriers of Krafton or on the part of other third parties involved in the performance of the Agreement, machinery breakdown, computer failures and other failures of equipment and installations, failures in the supply of energy, abnormal weather conditions, frost, storm damage and other damage caused by natural forces, strikes, transport difficulties, epidemics, pandemics, fire, theft, war and threat of war, terrorist attacks, full or partial mobilisation, civil unrest, acts of war, sabotage, work strikes, sit-ins, or employee illness, as well as government measures such as import, export and transit bans, levies, import duties and quota restrictions.
8.2 In the event of force majeure, Krafton will be entitled to suspend the performance of its obligation or part thereof and the Client will not be entitled to demand specific performance or claim damages.
8.3 If the period of force majeure lasts longer than three (3) months, either Party will be entitled to terminate the Agreement in whole or in part without being liable to pay compensation, on the understanding that if Krafton has partially performed its obligation before or after the occurrence of the force majeure, it will at all times be entitled to a proportional part of the price or fee. The Client will also only be entitled to terminate the Agreement for the part already performed if it can prove that it will be unable to use the Products that have already been delivered effectively if the remaining Products are not delivered. Clause 14.3 of these terms and conditions applies mutatis mutandis.
8.4 Krafton will also be entitled to invoke force majeure if it occurs after it should have performed its obligation.
9 Liability, indemnity
9.1 Without prejudice to the other provisions of the general and the special parts of these terms and conditions, the following rules apply with regard to the liability of Krafton for harm or loss incurred by the Client and/or third parties and with regard to the indemnification of Krafton by the Client.
9.2 The total liability of Krafton by whatever virtue is limited to the amount to which the liability insurance taken out by Krafton gives entitlement in the case in question, plus the amount of the excess which, according to the terms and conditions of the policy, is not borne by the insurers. If, for whatever reason, no payment is made under said insurance, the total liability of Krafton, by whatever virtue, per event, in which a series of related events will be considered a single event, will be limited to the amount of the net invoice value of the Products and the Work in question, i.e. the prices and fees excluding VAT and other taxes and levies and excluding costs, subject to a maximum of EUR 10,000 (ten thousand euros). If the Agreement is a continuing performance contract with a term of more than 1 year, the net invoice value referred to above will be the total of the prices and fees excluding VAT and other taxes and levies and excluding costs stipulated for three (3) months.
9.3 Krafton is not liable for – and the Client must take out insurance against – indirect harm or loss, consequential harm or loss, trading losses, business interruption losses, loss of profit, missed savings, losses resulting from claims from the Client’s customers, loss of customers, reduced goodwill, reputational harm and harm or loss to the corruption, destruction or loss of data or documents.
9.4 Krafton is not liable for damage to, or the loss or destruction of, an injection-moulded product used for the manufacture of client-specific Products (custom-made Products) or for any loss or harm attributable to this damage, loss or destruction.
9.5 Without prejudice to the provisions of the paragraphs above in this Clause 9, Krafton is not liable for damage related to the use of tangible property, services and software of third parties, also in so far as this use is not prescribed by the Client to Krafton, and Krafton is also not liable for failures and mistakes on the part of third parties it engages for the performance of the Agreement, also in so far as these parties were not engaged at the Client’s behest. Krafton’s liability will in no way exceed the third parties to Krafton. The Client authorises Krafton, on behalf of the Client, to accept any limitations of liability required by any third parties.
9.6 To the extent that performance by Krafton is not permanently impossible, liability on the part of Krafton for an attributable failure to perform an obligation will only arise if the Client has immediately declared Krafton in default in writing, specifying the nature of the failure and setting a reasonable period for remedying the failure, and Krafton continues to fail attributably in the performance of its obligation even after that period has expired.
9.7 Any right to compensation is always subject to the condition that the Client reports the damage to Krafton in writing immediately, but no later than 14 (fourteen) days after the Client has become aware of the damage or should reasonably have become aware of it.
9.8 Subject to a forfeiture of all rights, the Client undertakes to lend all necessary cooperation to Krafton in the context of the latter’s investigation into the cause, nature and the scope of the loss, harm or damage for which compensation is being claimed.
9.9 Any legal proceedings must be initiated no later than 1 (one) year after timely notification of the loss, harm or damage, subject to forfeiture of all rights.
9.10 The Client must indemnify Krafton against any form of liability on the part of Krafton to third parties in relation to Products and Work. The Client must reimburse Krafton for the reasonable costs of defence against claims from third parties.
9.11 Krafton will not invoke any limitation of its liability, and the Client will not be obliged to indemnify Krafton, in so far as the loss, harm or damage is the direct result of an intentional act or omission or deliberate recklessness on the part of Krafton or its executive subordinates.
9.12 The above regulation does not apply to the extent that provisions of mandatory law dictate otherwise.
10 Right of retention and right of pledge
10.1 Until the Client has completely fulfilled all its obligations to Krafton by whatever virtue, Krafton will have both a right of retention and a right of pledge in respect of all goods that Krafton has or will have in its possession, either directly or indirectly, in connection with an Agreement. For the purposes of this clause, “goods” should be taken to mean: movable property, bearer rights or rights to order, securities, documents and funds.
10.2 As a result of these terms and conditions becoming applicable, the Client has undertaken to grant the right of pledge referred to in paragraph 1 of this Clause 10 to Krafton. The pledge will be established by placing the goods under the control of Krafton or of a third party holding the goods for Krafton, including but not limited to a carrier or a storage company.
10.3 The right of summary execution will be exercised in the manner prescribed by law. Private sale is possible if there is consensus between the Parties in this respect or, provided that Krafton has a sound valuation report, if Krafton cannot reasonably be required to apply to the preliminary relief court. All judicial and extrajudicial costs incurred by Krafton with a view to exercising the right of summary execution, including but not limited to the actual costs incurred by Krafton for legal assistance and the costs of the valuation, will be borne by the Client and will be recovered from the (gross) sales proceeds.
11 Applicable law, disputes, legal costs and arbitration costs
11.1 Without prejudice to the provisions of Clause 15 paragraphs 6 and 7 of these terms and conditions, the legal relationship between the Parties is governed by Dutch law, including the Vienna Sales Convention.
11.2 With due observation of the provisions of paragraph 3 of this Clause 11, any disputes that may arise between the Parties as a result of or in connection with an Agreement and/or these terms and conditions will in the first instance be exclusively settled by the District Court of Zeeland-West-Brabant (proceedings on the merits) or the preliminary relief judge of the District Court of Zeeland-West-Brabant (preliminary relief proceedings and other interim measures), without prejudice to Krafton’s entitlement to submit disputes as referred to here to any other competent court.
11.3 If the Client is domiciled in a country which is a party to the New York Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards and where neither Regulation (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation recast) nor the Lugano Convention of 30 October 2007 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Lugano II Convention) applies, any disputes between the Parties will be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (“the Rules”). The arbitration tribunal will consist of one arbitrator. Article 14(4) of the Rules does not apply. The place of arbitration and the place of the oral hearing(s) will be Rotterdam. The proceedings will be conducted in the English language. The arbitration tribunal will decide according to the rules of law.
11.4 The costs related to judicial and arbitration proceedings, including but not limited to the actual costs of lawyers, bailiffs, experts and translators incurred by Krafton, will be fully borne by the Client if the latter is the sole or predominantly non-prevailing party.
B. the delivery of Products
12 Delivery, delivery period
12.1 The Products sold by Krafton will be delivered ex works unless the Parties have agreed otherwise in writing. The term “ex works” will be interpreted in accordance with the most recent version of the Incoterms. If Krafton is responsible for ensuring the transport and/or the insurance, this will be done at the behest and on behalf of the Client and, therefore, the Client will bear the risk and expense of same. In this case, Krafton is free to choose the carrier and/or the insurer and the manner of transport and/or insurance. Krafton will carry this out to the best of its knowledge and ability, without incurring any liability.
12.2 The delivery periods stated by Krafton are always approximate and will never be regarded as absolute deadlines.
12.3 Unless Krafton is in a situation of force majeure as referred to in Clause 8 of these terms and conditions, the Client must notify Krafton in writing that it is in default if it exceeds the delivery term with more than thirty (30) days and grant Krafton a reasonable term to deliver anyway, failing which the Client will be entitled to terminate the Agreement by sending Krafton written notification by registered post.
12.4 Should a delivery period be , for whatever reason, Krafton will never be liable for any harm or loss which the Client or any third party incurs as a result.
12.5 Krafton will have met its duty to deliver by offering the Products to the Client once. An offer to deliver will be equated with delivery.
12.6 The Client is obliged to take delivery of the purchased Products. The obligation to take delivery consists of: a) performing all acts that can reasonably be expected of the Client in order to enable Krafton to deliver and b) taking possession of the Products. If the Client fails to meet its obligation to take delivery, it will be in default without any notice of default being required and Krafton will be entitled, , without prejudice to its other legal and contractual rights to compensation for any loss by the Client’s failure, including but not limited to the costs for returning and storing the purchased Products. In such case Krafton will not be obliged to deliver the Products before the Client has paid the agreed price and the aforementioned compensation.
12.7 Krafton is authorised to deliver the sold Products in parts. If the Products are delivered in parts, Krafton is authorised to invoice for each part separately.
12.8 Krafton is authorised to collect on delivery without stating reasons.
12.9 Krafton is not obliged to deliver as long as the previous deliveries, of which the purchase price is due and payable, have not been paid in full.
12.10 Unless agreed otherwise in writing, deliveries will be made based on an Agreement and not on an exclusive basis.
13 Cancellation fee
If the Client cancels an order, it will owe a cancellation fee equal to 25% of the total gross value of the order, without prejudice to Krafton’s right to claim damages. The percentage referred to in the previous sentence will be 50% if the order is cancelled even though the Client has been notified that the delivery – or part of it if it concerns a partial delivery – can take place.
14 Storage and return
14.1 If the Client is unable to collect the Products at the agreed time for whatever reason, Krafton will – if storage options permit and as long as Krafton does not wish to exercise any other statutory or contractual rights – store the Products at the Client’s request, in which case the Products will be considered to have been delivered at the moment they are stored. As of that moment, the Client will be subject to the obligation to inspect and complain as described in Clause 16 of these terms and conditions and this Clause 16 will also otherwise apply in full. Krafton will not be obliged to insure the Products for the duration of the storage.
14.2 The Client undertakes to reimburse Krafton for the storage costs in an amount that is customary in the industry on the date on which the Products are ready to be delivered or on the agreed delivery date, whichever is later.
14.3 The Client is only authorised to return the delivered Products after having received written permission from Krafton. The Products must be returned in their original packaging and must be accompanied by proof that the Products were purchased from Krafton (copy of invoice, packing slip). Unless agreed otherwise in writing, the Products will be returned carriage paid to an address indicated by Krafton. The Client will bear the risk associated with transport. Krafton will visually inspect, test and, if necessary, repackage the returned Products. In the case of repossession by Krafton, the Client will be credited with the market value, which may under no circumstances be higher than the original purchase price, less any costs Krafton incurs to repossess the Products. The Parties hereby determine these costs determined in advance at an amount of at least 20% of the original purchase price. If Krafton stores or arranges for the storage of the Products that were returned without its prior written approval, the Client will bear the risk and expense of same. Approval or acceptance of the return can never be inferred from these measures.
14.4 Among other things, Krafton reserves the right to refuse to accept the return of obsolete Products or Products that were specially ordered for the Client.
15 Retention of title
15.1 Krafton will retain title to all Products delivered until their price has been paid in full. The retention of title also applies to the other claims referred to in Article 3:92(2) DCC which Krafton has or will have against the Client.
15.2 The Client is obliged to exercise due care when storing Products delivered subject to the retention of title and to ensure that these are recognisable as belonging to Krafton.
15.3 The Client is obliged to insure the Products against the risk of damage, loss and destruction for the term of the retention of title. At Krafton’s first request, the Client will provide Krafton with the relevant insurance policy or policies and proof of the premium payment. As soon as Krafton notifies the Client of its desire to that effect, the Client will pledge to Krafton all the Client’s claims against the insurer in the manner indicated in Article 3:239 Dutch Civil Code as an additional security for Krafton’s claims against the Client.
15.4 As long as title to the Products has not been transferred to the Client, the Client will not be permitted to pledge the Products or grant any other right to those Products to a third party without Krafton’s prior written permission. In addition to its effect under the law of obligations, this prohibition also has effect under property law (within the meaning of Article 3:83(2), read in conjunction with Article 3:98, DCC). Subject to the condition precedent that the Client demands retention of title based on the provisions of this Clause 15, the Client will be authorised to resell the Products delivered subject to the retention of title to third parties within the context of the ordinary course of its business. Without the prior written consent of Krafton, the Client is not permitted to assign, pledge or transfer or encumber the claims it has or will have against its customers under any other title whatsoever. In addition to its effect under the law of obligations, this prohibition also has effect under property law (within the meaning of Article 3:83(2), also in conjunction with Article 3:98 DCC). The Client undertakes to pledge the claims against its customers at Krafton’s first request in the matter indicated in Article 3:239 Dutch Civil Code as additional security for the performance of its obligations to Krafton by whatever virtue, subject to the forfeiture of an immediately due and payable penalty of EUR 10,000 for each day, or part of a day, that the Client remains in default, without prejudice to Krafton’s right to claim damages.
15.5 If the Client fails to fulfil one or more obligations, or if Krafton has good reason to fear that it will fail to do so, Krafton will be entitled to repossess the Products delivered subject to retention of title. In this respect, the Client will lend all cooperation, subject to the forfeiture of an immediately due and payable penalty of 20% of the amount owed by the Client for these Products for each day, including a part of a day, that the Client remains in default, without prejudice to Krafton’s right to claim damages. The Client hereby waives in advance any rights of retention in respect of the Products and it will not have any attachment levied on the Products. After the Products have been repossessed, the Client will be credited with the market value, which may under no circumstances be higher than the original price, less any costs incurred in the repossession of the products and any other loss incurred by Krafton.
15.6 If the law of the country of destination of the Products purchased provides for more far-reaching possibilities with regard to the retention of title than provided for in the previous paragraphs of this Clause, these more far-reaching possibilities will be deemed to have been stipulated between the Parties for the benefit of Krafton, on the understanding that if it cannot be objectively determined which more far-reaching rules are concerned, the provisions of the previous paragraphs of this Clause will continue to apply.
15.7 If the Client’s registered office is in Germany and/or the Products are destined for Germany, the following extended retention of title under German law will apply between the Parties, in which respect Krafton will be the party referred to as “wir” and the Client will be the party referred to as “Käufer”:
Das Eigentum an den gelieferten Waren bleibt zur Sicherung aller Ansprüche vorbehalten, die uns aus der gegenwärtigen und künftigen Geschäftsverbindung bis zum Ausgleich aller Salden gegen den Käufer und seine Konzerngesellschaften zustehen. Unser Eigentum erstreckt sich auf die durch Verarbeitung der Vorbehaltsware entstehende neue Sache. Der Käufer stellt die neue Sache unter Ausschluss des eigenen Eigentumserwerbs für uns her und verwahrt sie für uns. Hieraus erwachsen ihm keine Ansprüche gegen uns.
Bei einer Verarbeitung unserer Vorbehaltsware mit Waren anderer Lieferanten, deren Eigentumsrechte sich ebenfalls an der neuen Sache fortsetzen, erwerben wir zusammen mit diesen anderen Lieferanten – unter Ausschluss eines Miteigentumserwerbs des Käufers – Miteigentum an der neuen Sache zu deren vollem Wert (einschliesslich Wertschöpfung) wie folgt: a) Unser Miteigentumsanteil entspricht dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu dem Gesamtrechnungswert aller mitverarbeiteten Vorbehaltswaren. b) Verbleibt ein von Eigentumsvorbehalten zunächst nicht erfasster Restanteil, weil andere Lieferanten den Eigentumsvorbehalt nicht auf die Wertschöpfung durch den Käufer erstreckt haben, so erhöht sich unser Miteigentumsanteil um diesen Restanteil. Haben jedoch andere Lieferanten ihren Eigentumsvorbehalt ebenfalls auf diesen Restanteil ausgedehnt, so steht uns an ihm nur ein Anteil zu, der sich aus dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu den Rechnungswerten der mitverarbeiteten Waren dieser anderen Lieferanten bestimmt.
Der Käufer tritt bereits jetzt seine Forderungen aus der Veräusserung von Vorbehaltsware aus unseren gegenwärtigen und künftigen Warenlieferungen mit sämtlichen Nebenrechten im Umfang unseres Eigentumsanteils zur Sicherung an uns ab. Bei Verarbeitung im Rahmen eines Werkvertrages wird die Werklohnforderung in Höhe des anteiligen Betrages unserer Rechnung für die mitverarbeitete Vorbehaltswerte schon jetzt an uns abgetreten.
Solange der Käufer seinen Verpflichtungen aus der Geschäftsverbindung mit uns ordnungsgemäss nachkommt, darf er über die in unserem Eigentum stehende Ware im ordentlichen Geschäftsgang verfügen und die an uns abgetretenen Forderungen selbst einziehen. Bei Zahlungsverzug oder begründeten Zweifeln an der Zahlungsfähigkeit oder Kreditwürdigkeit des Käufers sind wir berechtigt, die abgetretenen Forderungen einzuziehen und die Vorbehaltsware zurückzunehmen, jedoch liegt ein Rücktritt vom Vertrag nur dann vor, wenn wir dies ausdrücklich schriftlich erklären.
Scheck-/Wechsel-Zahlungen gelten erst nach Einlösung der Wechsel durch den Käufer als Erfüllung.
Hinsichtlich der Vereinbarung von Eigentumsvorbehaltsrechten gilt ausschliesslich deutsches Recht.
15.8 If third parties wish to establish or exercise a right on the Products supplied subject to the retention of title, the Client will be obliged to inform Krafton of that fact immediately. The Client will immediately notify a bailiff effecting attachment or – if the Client is declared bankrupt, is granted a suspension of payments, or is declared to be subject to a statutory debt restructuring scheme – its bankruptcy trustee or administrator about Krafton’s property rights.
16. Conformity, inspection and complaints
16.1 Except in so far as the Client can derive any further rights from the manufacturer’s warranty of one of the Products delivered, the arrangement below applies in relation to conformity, inspection and complaints.
16.2 The conformity of the Products is assessed on the basis of the laws and regulations in force in the Netherlands at the time of delivery. Unless the Parties have agreed otherwise in writing, Krafton will not be obliged to comply with any other laws and regulations.
16.3 With due observance of the provisions of Clauses 16.4-16.7 of these terms and conditions, the Products delivered by Krafton will be in conformity with the Agreement.
16.4 Minor or technical deviations and/or deviations that are usual in the market and industry which cannot be avoided related to quality, size, colour, number, weight, quantity and the like, are permissible provided that they do not affect the ordinary use of the Products.
16.5 If the Client is provided or shown a sample or model, this will serve only as an indicator of the Product, but will not imply any requirement that the Product must conform to that sample or model.
16.6 Krafton retains the right to change the models for its Products, as well as, where necessary, to deliver the model that will replace the model that can no longer be delivered.
16.7 Krafton only warrants that on the date of delivery, the Products will be suitable for the ordinary use indicated in the product description or manual. Krafton does not warrant that the Products will be suitable for a particular use, unless the Client notified Krafton before or when concluding the Agreement about the intended particular use and Krafton guaranteed in writing that the Product would also be suitable for that particular use.
16.8 The Client undertakes to inspect the Products immediately upon delivery, or ensure that this is done, in order to ascertain whether the Projects satisfy all aspects of the Agreement:
(a) whether the packaging and external condition of the Products are correct;
(b) whether the right Products have been delivered;
(c) whether the Products delivered correspond with what was agreed in terms of quantity (number, quantity, weight);
(d) whether the Products delivered meet the agreed quality requirements or – in the absence of such – the requirements that can be imposed for the ordinary use of the Products.
Where client-specific Products (custom-made Products) are concerned, the Client will be obliged to accept overrun or underrun of up to 10% at the proportionately higher or lower price, respectively.
16.9 Complaints regarding packaging, the delivered quantity and the external condition of the Products must be noted immediately on the waybill or the proof of receipt. Complaints regarding visible defects must be reported to Krafton immediately and must be confirmed within seven (7) days, with an accurate description of the nature of the defect. Complaints regarding invisible defects must be reported to Krafton in writing within seven (7) days after the defects were discovered, or could reasonably be expected to have been discovered, but by no later than within fourteen (14) days after the Products are delivered, with an accurate description of the nature of the defects. If the aforementioned time limit for lodging a complaint is exceeded, the Client may only lodge a complaint about the failure of the Products to conform to the Agreement if:
(a) if, within 6 (six) months after delivery, the Products prove to have material or manufacturing defects;
(b) the Client notified Krafton in writing about the material or manufacturing defects within seven (7) days after they were discovered or could reasonably be expected to have been discovered and that notification included an accurate description of the nature of the material or manufacturing defects; and
(c) the material or manufacturing defects are not the result of inexpert or improper use, overdue maintenance, normal wear and tear, discolouration, fire and other calamities, leaks and atmospheric influences.
16.10 Complaints regarding minor or technical deviations and/or unavoidable deviations that are customary in the market and industry will not be eligible for any remedy.
16.11 Complaints regarding Products that (i) have been altered by the Client or a third party, (ii) have been incorporated into other products, (iii) have been opened and/or disassembled, (iv) show traces of vandalism or other damage, or (v) were delivered to third parties, will not be eligible for any remedy.
16.12 The Client will lend all cooperation necessary for the investigation of the complaint. If the Client does not cooperate or if an investigation is not possible for another reason, the complaint will not be processed and the Client will not have any claims in that respect.
16.13 If the Client’s complaint is well-founded, also in light of the provisions of this Clause 16, Krafton will ensure one of the following remedies after consultation with the Client: delivery of the missing Products, free repair of the Products delivered, free replacement of the Products delivered, repossession of the Products delivered in exchange for restitution of the price or adjustment of the price of the Products delivered. Krafton will have no other obligation or liability. Full or partial termination of the Agreement, including a reduction in the price, will require Krafton’s written consent.
16.14 The Client is obliged to ensure the preservation of the Products as a diligent debtor at all times.
16.15 In relation to the return of Products, the provisions of Clause 14.3 of these terms and conditions apply.
16.16 Any violation of the Client’s obligation to inspect and complain will always result in the forfeiture of all rights, regardless of whether Krafton’s actual interests have been prejudiced as a result of this violation.
16.17 If the Client does not comply with the rules laid downing this Clause 16 and Krafton nevertheless handles a complaint, this will always be done subject to the reservation of all rights and Krafton’s efforts will be regarded as a goodwill gesture without acceptance of any obligation or liability.
16.18 Any legal proceedings must be initiated no later than one (1) year after timely notification of a complaint, subject to the forfeiture of all rights.
C. the performance of Work
17 Krafton’s obligations
17.1 Krafton will perform the Work to the best of its abilities. However, the scope of its obligations also depends on the degree of contribution and influence of the Client or the third party/parties engaged by or on behalf of the Client.
17.2 Krafton is obliged to warn the Client if the Agreement or the information, data or tangible property provided by the Client or the alterations suggested by the Client obviously entail such errors or defects Krafton’s performance of the Work would contravene the requirements of reasonableness and fairness if it were to perform the Work without first issuing a warning. In addition, Krafton is not obliged to do more than conduct a general review of the information, design, drawings, calculations, et cetera, provided by or on behalf of the Client. Krafton’s inspection of the tangible property provided by the Client will consist of no more than a visual inspection for external damage in so far this is possible with packaged tangible property, checks of numbers and sizes and, in so far as possible, the verification of the packing lists.
18 Obligations and risks of the Client
18.1 The Client undertakes that Krafton is provided in a timely fashion with all the information and data necessary for Krafton to perform the Work in conformity with the Agreement. The Client is responsible for the correctness and completeness of this information and these data.
18.2 The Client will ensure that Krafton is provided in a timely manner with (a) all tangible property that the parties have expressly stipulated be provided by or on behalf of the Client and (b) the permits, exemptions, dispositions or permissions that are necessary for the performance of the Work.
18.3 In so far as Krafton needs to perform Work on-site, the Client will ensure that that site is made freely accessible to Krafton, free of charge, and that the site provides clear, safe and healthy conditions. The Client is responsible for the conditions of the location where the Work will be performed, as well as for the circumstances that may hinder or severely restrict the performance of the Work. The Client is obliged to warn Krafton and its employees in a timely fashion of any hazardous situations. The Client will ensure that the site where the Work will be performed is made available to Krafton in a timely manner, free of charge and with a guarantee that the necessary utilities will be available on-site.
18.4 The Client will ensure that information on the nature and substance of the work performed by any third parties the Client engages, the envisaged date on which the work referred to will be performed, and the coordination of that work is provided to Krafton in a timely fashion so that Krafton can take this information into account in its offer. In so far as the Parties have not agreed otherwise, the Client will be solely responsible for the coordination of the aforementioned work.
18.5 The Client bears the risk of damage, loss or destruction of the Work that has been performed or is being performed, unless the damage, loss or destruction is due to circumstances that are attributable to Krafton.
19.1 The agreed term for the performance of the Work (the “completion time”) will not start before Krafton has received all the necessary information, details, tangible property and permits, etc, as referred to above in Clause 18 of these terms and conditions, and Krafton has also received the agreed instalment payment. Krafton is not obliged to start the performance of the Work earlier, but is authorised to do so.
19.2 The completion time, which has been determined to the best of its knowledge and which will be taken into account as much as possible, is not an absolute deadline. If the completion time is exceeded or if that situation is imminent, Krafton and the Client will consult with each other. If the completion time is exceeded for whatever reason, Krafton will never be liable for any resulting loss or harm incurred by the Client or third parties.
20 Inspection, acceptance and delivery
20.1 The Client is authorised to inspect the Work in consultation with Krafton. The Client will bear the risk and expense of any inspection performed by or on behalf of the Client. When exercising its authority to inspect, the Client should strive to disrupt the Work as little as possible. The Client is responsible for delay, extra costs and losses that arise as a consequence of the inspection.
20.2 If Krafton states that the Work is finished for acceptance and the Client subsequently fails to inspect the Work within the period set by Krafton and fails to either accept (whether or not subject to approval) or reject (every time accurately describing the defects) the Work, the Work will be deemed to have been tacitly accepted. Minor defects that can be repaired before the next payment falls due cannot constitute a reason for rejection. After the acceptance, tacit or otherwise, the Work will be considered to have been delivered. Krafton is authorised to divide the delivery into a number of partial deliveries.
20.3 If the Work is accepted by the Client, tacitly or otherwise, the time of acceptance will be the date of the notice as referred to in paragraph 2 of this Clause 20. At the request of the Client, the Work may also be accepted without this notice. In this respect, the Client will notify Krafton in writing that the Work can be considered as having been accepted. The date the notice is sent will constitute the time of acceptance.
21.1 The Client is authorised to suspend the Work. The Client is obliged to inform Krafton of this in writing, stating the reasons, and to consult with Krafton as soon as possible about the consequences.
21.2 If Krafton must apply appropriate provisions or measures as a result of the suspension, the Client will bear the risk and expense of this and Krafton will be entitled to an extension pursuant to Clause 22 of these terms and conditions.
21.3 If the Work or any part thereof is suspended or delayed by a circumstance that cannot subjectively be attributed to Krafton, the Client will be obliged to compensate Krafton for all performed Work, calculated based on the progress of the Work, as well as all costs reasonably incurred and to be incurred, arising from obligations that Krafton already entered into with a view to the further performance of the Agreement, calculated from the moment the suspension or delay commenced.
21.4 If the Work is suspended or delayed for more than three months, Krafton will be authorised to terminate the Agreement.
22.1 Krafton is entitled to extend the completion time (“extension”) if a circumstance that cannot subjectively be attributed to Krafton entails that Krafton cannot be expected to complete the Work within the agreed term.
22.2 If Krafton believes that it is entitled to an extension, it must notify the Client of this in writing as soon as possible, stating reasons. This notification must include all direct and indirect costs as well as a reasonable surcharge for general costs, profit and risk. It must furthermore state the consequences in respect of scheduling.
23 Changes; contract variations
23.1 The Client is authorised to issue amended instructions to Krafton with regard to the Work.
23.2 Krafton will not be obliged to carry out an assigned change if:
(a) the amended instruction was not issued in writing, or
(b) the change would lead to an unacceptable disruption of the Work, or
(c) the change exceeds the scope of Krafton’s know-how and/or ability, or
(d) the Parties fail to reach agreement on the financial consequences and the consequences relating to scheduling and the work plan.
23.3 If Krafton is willing to implement the change, it will send the Client a written offer containing the following data:
(a) the balance, made up of all direct and indirect costs, profit and risk, relating to the change, less any savings resulting from the change, and
(b) the change to the Work, the scheduling and the work plan, and
(c) the change to the payment conditions.
23.4 Krafton is entitled to reasonable compensation of the costs connected to the offer referred to in paragraph 3 of this Clause 23, regardless of whether the Parties reach agreement on that offer.
23.5 If Krafton sees reason for this, it will be authorised to propose changes to the Client. The Client can accept these proposed changes or reject them – without stating reasons. In the case of acceptance, the Parties will follow the procedure set out in this Clause 23.
23.6 The absence of a written contract with regard to the change will not affect Krafton’s claims for payment.
23.7 Contract variations will in any event be set off:
(a) if there are any changes to the Work or to the conditions of the performance of the Work;
(b) if there are any deviations from the amounts of the provisional sums;
(c) if there are any deviations from amounts that are subject to set-off;
(d) if this set-off was agreed between the Parties;
(e) if the contract variations follow from the actual performance of the Work.
24 Rates, waiting time and lost hours
All rates are based on a full working week from Monday through Friday. All Work performed outside of the normal working hours will be set off based on the rates and surcharges set out in the Agreement. The Client owes Krafton compensation based on the rates set out in the Agreement, for all waiting time and/or lost hours for Krafton’s employees and/or equipment resulting from (a) an act or omission on the part of the Client itself or on the part of one or more Persons for whom the Client is responsible or (b) a circumstance for which the Client is otherwise responsible for bearing the expense. If the Agreement does not provide for rates and surcharges, Krafton will apply the rates that are customary in the industry.
25.1 If a defect in the Work is revealed within three (3) months after the end of the Agreement or termination, Krafton will ensure that this defect is remedied free of charge, on the condition that this defect is attributable to Krafton and, in the case of delivery, that the Client did not discover, and could not reasonably have been expected to discover, discovered the defect before the time of delivery. If, in comparison to compensation, the costs of remedying a defect are not reasonably proportionate to the Client’s interest in having the defect remedied, the Client will not be entitled to demand such remedy, but Krafton will compensate the Client instead.
25.2 Where defects in the Work are concerned, Krafton will not have any obligations or liabilities beyond those described in paragraph 1 of this Clause 25.