General terms and conditions of sale and delivery of Knapen Trailers
ARTICLE 1 DEFINITIONS:
In these general terms and conditions of sale and delivery, the following terms will have the following meanings: ‘Knapen’: the private limited liability company Knapen Trailers B.V., having its registered office and principal place of business in (5753 DL) Deurne at the address Theo van Doesburgstraat 8, listed in the Trade Register of the Chamber of Commerce under number 17089318, and, where applicable, its affiliates, including in any case Stapelstenen B.V. (C of C: 60767537), Knapen Trailers International B.V. (C of C: 17151570), Knapen Service B.V. (C of C: 17171492) and Trailned B.V. (C of C: 17110871); ‘Buyer’: any natural person or legal entity concluding an Agreement with Knapen in respect of Goods and/or Services to be supplied by Knapen; ‘Services’: services to be provided by Knapen for the benefit of the Buyer; ‘Agreement’: all quotations, estimates and/ or offers issued by Knapen to the Buyer, (purchase) agreements concluded between Knapen and the Buyer and any follow-up agreements relating to the Goods and/or Services to be supplied by Knapen; ‘Terms and Conditions’: these general terms and conditions of sale and delivery of Knapen; ‘Goods’: products and/or other movable items which Knapen supplies to the Buyer pursuant to the Agreement, including but not limited to trailers and accessories.
ARTICLE 2 APPLICABILITY OF GENERAL TERMS AND CONDITIONS/QUOTATIONS/ FORMATION OF AGREEMENT
- These Terms and Conditions apply to the Agreement between Knapen and the Buyer. If stipulations in the Agreement are inconsistent with these Terms and Conditions, the stipulations in the Agreement will prevail, unless agreed otherwise in writing.
- Any terms and conditions of the Buyer, by whatever name, will not apply to the Agreement and are expressly rejected by Knapen.
- The quotations issued by Knapen to the Buyer have a validity period of 30 days and may be revoked or amended by Knapen at all times. Images and specifications of measurements and/or weights are indicative only, which means that Knapen will never be liable for deviations. The provision of price lists by Knapen to the Buyer will not create an obligation to supply Goods and/or Services to the Buyer.
- The Agreement will only be formed after Knapen has confirmed the Buyer’s order or assignment in writing to the Buyer.
ARTICLE 3 PRICES
- All prices exclude VAT and other government levies and include the costs of any packaging, unless expressly agreed otherwise.
- In principle, the Buyer will be charged the prices set out in the Agreement. However, Knapen will be entitled – even if the price increase was foreseeable – to adjust the prices for Goods and/or Services not yet supplied and/or paid to demonstrable changes in the cost price of the Goods and/ or Services to be supplied, such as changes in raw material prices, transport costs, tax rates, wages, social security contributions and currency exchange rates.
- If Knapen finds during or after the production or delivery of Goods that the Goods require modification, such modifications will be communicated by Knapen to the Buyer in advance and – where applicable – will be charged to the Buyer on the basis of subsequent costing.
ARTICLE 4 DELIVERY
- Deliveries of Goods by Knapen will be made ex works, as referred to in the Incoterms 2010 or at least the most recent version of the Incoterms, and will be at the Buyer’s expense and risk.
- If Knapen – in derogation from the provisions of Paragraph 1 – pays for the delivery of Goods, Knapen reserves the right to determine the manner and means of transport. In the event of (temporary) breakdowns of the means of transport chosen by Knapen, Knapen will be entitled to suspend delivery until the breakdown has been resolved. This means that Knapen will not be obliged to arrange a replacement means of transport.
- In the event that the Buyer fails to take delivery of the Goods supplied by Knapen, or to do so in time, all costs unnecessarily incurred by Knapen in connection with the delivery will be payable by the Buyer, as will any (consequential) losses such as costs of transport, safekeeping and storage.
ARTICLE 5 DELIVERY PERIODS
- An agreed delivery period will not start until the Buyer has made the (down) payments owed until then to Knapen.
- Delivery periods will always be specified by Knapen to the best of its knowledge and must be regarded as target dates and times. Delivery periods specified cannot be regarded as final deadlines. Knapen will not be liable in the event that the specified delivery periods are exceeded.
- If the specified delivery periods are exceeded, the Buyer will not be entitled to terminate the Agreement, cancel the order or refuse receipt of or payment for the Goods. Likewise, the Buyer will be unable to oblige Knapen to pay compensation for (consequential) losses on that account. The Buyer also indemnifies Knapen against third-party claims in that connection.
- If Knapen is unable to perform the Agreement and/or to deliver Goods (in time) due to force majeure (see Article 14) or any other cause outside its control, Knapen will be entitled to suspend or cancel delivery, or to terminate the Agreement. Knapen will not be liable for any losses arising from the aforesaid situations on the part of the Buyer and/or third parties.
ARTICLE 6 SECURITY
- . Knapen reserves the right to check the Buyer’s creditworthiness, or arrange for such a check to be made, both prior to and during the performance of the Agreement. The Buyer will cooperate in such a check at all times.
- When Knapen so requests, the Buyer will furnish (additional) security for the payments owed by the Buyer to Knapen, for example in the form of a Letter of Credit or a bank guarantee.
- If Knapen has good reason to fear that the Buyer will be unable to meet its financial obligations and the Buyer refuses to furnish (additional) security, Knapen will be entitled to suspend the supply of Goods and/or Services, or to terminate the Agreement
ARTICLE 7 PAYMENT
- In principle, the Buyer will pay for Goods and/or Services in advance, unless agreed otherwise in writing.
- If Knapen has agreed with the Buyer that payment will be effected retrospectively, a payment term of 14 calendar days from the invoice date will apply to all Knapen’s invoices. If payment is not effected in time, the Buyer will be in default straight away, from which moment all Knapen’s outstanding claims against the Buyer will be immediately due and payable without prior notice of default being required.
- Knapen will be entitled to charge statutory commercial interest (as referred to in Section 6:119a of the Dutch Civil Code) in the event that the Buyer fails to pay Knapen’s invoices in full within 30 calendar days of the invoice date.
- The Buyer will have to pay all judicial and extrajudicial costs incurred by Knapen in connection with non-fulfilment by the Buyer of its obligations under the Agreement. Such (collection) costs will be at least 10% of the outstanding principal sum, without prejudice to Knapen’s right to recover any further costs incurred and/or losses sustained from the Buyer.
ARTICLE 8 ACCOUNTS
- The accounts kept by Knapen will be decisive in determining the Buyer’s debt position towards Knapen, except where the Buyer provides evidence to the contrary.
ARTICLE 9 RETENTION OF TITLE
- 1. The Goods supplied by Knapen will remain Knapen’s property until all Knapen’s claims against the Buyer under the Agreement have been paid. Knapen will be entitled at all times to repossess the Goods supplied or arrange their repossession if the Buyer fails to meet its obligations under the Agreement. All associated costs and/or losses will be at the Buyer’s expense and risk.
- The Buyer must store and retain the Goods supplied separately, so that they can be identified as Knapen’s property at all times.
- The Buyer may not dispose of the Goods, or encumber them for the benefit of third parties, until all Knapen’s claims against the Buyer have been paid.
ARTICLE 10 COMPLAINTS
- The Buyer will inspect the Goods supplied immediately after delivery, or prior to delivery – if this has been agreed in writing – at a location to be determined by Knapen. If the Buyer fails to do so within eight days of being given the opportunity to do so by Knapen in writing, the Goods will be deemed to have been definitively accepted. Any complaints about the Goods and/or Services supplied must be submitted to Knapen within the aforesaid eight-day period, except in the event of hidden defects, in which case the complaint must be submitted to Knapen by the day following that on which the defect was detected or could reasonably have been detected, but in any case within 14 days of delivery. Failure to do so will be subject to forfeiture of any right relating to a failure on Knapen’s part. The consequences of a rejection will not go beyond an obligation of replacement for Knapen, without the Buyer being able to claim any form of compensation.
- The Buyer will not be permitted to repair the defect or arrange its repair without having obtained Knapen’s prior written consent.
- The submission of a complaint will not release the Buyer from its payment obligation.
- If a complaint is acknowledged, Knapen may, at its discretion, repair or replace the Good/Goods supplied or credit the invoice amount, without being obliged to replace the items supplied.
- Repairs by third parties must be reported to Knapen beforehand in writing. The costs will only be reimbursed after Knapen has agreed to this in writing.
- If the items supplied should need to be replaced outside the Netherlands, Knapen’s contribution towards the replacement costs will not exceed the amount which replacement would have cost in that case in the Netherlands.
ARTICLE 11 SUSPENSION AND TERMINATION
- Only Knapen will be entitled, at its discretion, to suspend all or part of the performance of the Agreement or to terminate all or part of the Agreement in writing with immediate effect, without judicial intervention being required and without Knapen being obliged to pay any compensation, if any of the following situations occurs: - failure of the Buyer to fulfil (one of) its obligations under the Agreement and/or these Terms and Conditions; - (an application for) a moratorium or bankruptcy order in relation to the Buyer.
- In the event of termination, Knapen will be entitled to reclaim the Goods already supplied if they have not been paid for (in full) by the Buyer, without prejudice to Knapen’s entitlement to compensation for (other) (consequential) losses, costs and interest.
ARTICLE 12 INTELLECTUAL PROPERTY RIGHTS
- All intellectual property rights in respect of the Goods and/or Services supplied will be vested in Knapen.
- The Buyer will not be permitted to reproduce, publicise or imitate the Goods either wholly or in part, or to grant third parties inspection of the Goods, without Knapen’s prior consent.
ARTICLE 13 WARRANTY
- Unless agreed otherwise in writing, the warranty period is 12 months after delivery of the Goods. The warranty period for structural defects is 24 months after delivery. The warranty period for paintwork supplied from 1 May 2019 onwards will also be 24 months after delivery. Assembled components are subject to the warranty conditions of the manufacturer of those components.
- Under no circumstances will Knapen reimburse the Buyer and/or third parties for costs of replacement transport, lost revenue and/or any other form of consequential loss (including lettering and re-lettering).
ARTICLE 14 FORCE MAJEURE
- Force majeure will exist in any case in the following situations: war, threat of war, riot, fire, factory breakdown, industrial action, traffic congestion, loss or damage during transport, staff sickness, failure of suppliers to fulfil their obligations, or to do so in time, and all other circumstances outside Knapen’s direct control that prevent the performance of the Agreement.
ARTICLE 15 LIABILITY
- Knapen will not be liable for losses on the Buyer's part, unless the loss is the result of wilful misconduct or deliberate recklessness (exclusively) on the part of Knapen’s senior staff in the context of the performance of the Agreement.
- Knapen will not be liable for (consequential) losses caused by inadequate or incorrect maintenance of the Goods or careless use of the Goods (such as overloading or incorrect temperature control), or use of the Goods for a purpose other than that for which they are suitable according to objective criteria. Likewise, Knapen will not be liable for damage caused by and/or to components of the Goods that were installed by third parties.
- Knapen will not be liable for (consequential) losses due to a defect in the Goods, if: a. Knapen did not put the Good on the market; b. it is likely, in view of the circumstances, that the defect which caused the damage did not exist at the time when Knapen put the Good on the market, or that this defect arose at a later time; c. the Good was not produced for Knapen for the purpose of selling or any other form of distribution with an economic objective, and was not produced or distributed in the context of the conduct of Knapen’s business; d. the defect is due to the fact that the Good is consistent with mandatory government regulations; e. it was impossible to detect the defect in view of the scientific and technical knowledge available at the time when Knapen put the Good on the market.
- Knapen can never be obliged to compensate any loss if and insofar as that loss exceeds the net invoice value of the Goods and/or Services supplied, or the maximum amount of EUR 450,000 which Knapen will pay in compensation.
- Knapen will not be liable for damage due to whatever cause which occurs to a third party's person or property after the delivery of Goods, including their use by any party.
ARTICLE 16 CONCLUDING PROVISIONS
- The invalidity of any provision of these Terms and Conditions will not affect the validity of the remaining provisions of these Terms and Conditions.
- These Terms and Conditions may be translated into other languages. In the event of discrepancies between the Dutch version of the Terms and Conditions and any version in another language, the Dutch text will prevail.
- The Agreement between Knapen and the Buyer will be governed by Dutch law, to the exclusion of the Vienna Sales Convention.
- Any dispute arising between Knapen and the Buyer pursuant to the Agreement and/ or the Terms and Conditions will be submitted exclusively to the competent judge of the District Court of Oost-Brabant.