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General terms and conditions
Article 1 Applicability and Definitions
1.1 These general terms and conditions apply to every Agreement between Karsten International and the Other Party, and to all further Agreements resulting from or related to it, and to all quotations, offers and other documents and acts.
1.2 In these general terms and conditions, the following definitions shall apply: - "Invoice Purchase Price (FIP)": The price stated on the invoice; - "Annual Agreement": the Agreement whereby the Parties agree that the Other Party will purchase the agreed volume spread over one year; - "Net Price": The Invoice Purchase Price after deduction of the payment discount and costs charged by the Other Party to Karsten International; - "Agreement": the separate agreement between Karsten International and the Other Party relating to the goods to be delivered by Karsten International to the Other Party; - "Parties": Karsten International and the Other Party; - "Private label": The brand product that is reserved for one customer, which may not be sold by Karsten International to other customers; - "Volume Agreement": the Agreement whereby the Parties agree that the Other Party will purchase the volume agreed in advance in one go; - "Other Party": the natural or legal person who receives offers from us in accordance with paragraph 1 or concludes Agreements with us.
1.3 The applicability of general terms and conditions of the Other Party is hereby expressly rejected, unless they have been expressly accepted by Karsten International.
1.4 These General Conditions are an integral part of every Agreement. In the event of contradiction between the General Conditions and the content of the Agreement, the provisions of the Agreement shall prevail.
1.5 The Other Party that has once concluded an Agreement with Karsten International of which these conditions formed part, agrees that these conditions shall also apply to subsequent Agreements.
1.6 Clauses that deviate from these terms and conditions are only binding if they have been agreed in writing.
1.7 Karsten International has the right to unilaterally amend the general terms and conditions. Karsten International shall inform the Other Party in writing of the amended general terms and conditions by sending them to the Other Party. If the Other Party does not reject the amended general terms and conditions within 7 working days, the amended general terms and conditions will have legal force, even on already existing Contracts.
1.8 Should one or more provisions of these terms and conditions prove to be invalid or be nullified, this shall not affect the legal force of the remaining provisions.
Article 2 Offers and Agreements
2.1 All offers made by Karsten International are without obligation.
2.2 Orders and acceptance of offers by the Other Party are irrevocable.
2.3 The offer is dated and applies from that day for six weeks.
2.4 Karsten International is only bound when it has accepted an order in writing.
2.5 The quotation will indicate whether it is purchased on a Volume Agreement or an Annual Agreement.
2.6 All our prices are in euros and exclusive of transport costs, unless otherwise agreed. If Karsten International has taken on packaging of goods, without a price having been agreed in writing, it shall be entitled to charge the Other Party for this at the usual rates used by Karsten International.
2.7 Unless the parties have expressly agreed otherwise, prices quoted are exclusive of turnover tax.
2.8 If the cost price of the goods to be sold by Karsten International increases after the conclusion of the Agreement and before the delivery of the goods for reasons beyond Karsten International's control, such as, but not limited to, an increase in the prices of raw materials, energy prices and excise duty, Karsten International shall be entitled to increase the prices if the increase is more than 5%. This also applies in the event of a currency fluctuation of more than 5%.
Article 3 Amendment of the Agreement
3.1 If during the performance of the Agreement it appears that for a proper performance it is necessary to amend the Agreement, the parties shall amend the Agreement in good time and in mutual consultation. Changes to the Agreement and deviations from these general terms and conditions shall only be effective if they have been agreed in writing between Karsten International and the Other Party. 3.2 If this affects the time of delivery, Karsten International will inform the Other Party of this as soon as possible.
Article 4 Delivery, delivery time and storage
4.1 The date of delivery shall only commence after all data necessary for the execution of the order have been made available to Karsten International.
4.2 If the Other Party takes delivery by Volume Agreement, the Other Party must take delivery in its entirety of the volume included in the quotation. If the Other Party has not fulfilled this obligation, Karsten International is entitled to invoice the Other Party for the volume not taken up, after payment of which Karsten International will deliver the remaining volume to the Other Party.
4.3 If the Other Party takes delivery on Annual Agreements and the Other Party has taken delivery of less than 12.5% of the volume included in the offer within one year, the Other Party must take delivery of the remaining volume within one month after the end of the contract period.
4.4 The delivery term and/or date of delivery agreed with the Other Party is always given by approximation and can never be regarded as a strict deadline, unless the contrary has been expressly agreed in writing. If the delivery term is exceeded, Karsten International will inform the Other Party of this as soon as possible.
4.5 If the delivery term is exceeded, the Other Party shall never be entitled to claim compensation for direct or indirect damage or to non-fulfilment or suspension of any obligations arising from the Agreement, or to proceed to termination or dissolution of the Agreement.
4.6 The goods must be received in full by or on behalf of the Other Party at the agreed place and time of delivery. The Other Party shall ensure sufficient loading and unloading facilities.
4.7 If the Other Party refuses to take delivery or is negligent in providing information or instructions necessary for delivery, the goods will be stored at the risk of the Other Party. The Other Party will then be in default without notice of default. The Other Party shall in that case owe all additional costs, including in any case storage costs. The Other Party will continue to owe the purchase price. Karsten International is also entitled to sell the goods to a third party. The net proceeds will be deducted from the outstanding claim.
4.8 The risk of loss, theft or damage of goods that are the subject of the Contract will pass to the Other Party at the moment at which they are placed in the actual power of disposition of the Other Party or an auxiliary person of the Other Party.
Article 5 Transport
5.1 The General Transport Conditions (AVC conditions) apply to all transports that Karsten International undertakes and/or which are carried out by others on its behalf, insofar as domestic transport is concerned, and the CMR conditions insofar as cross-border transport is concerned. In the event of conflict between a provision of the AVC or CMR conditions and these general terms and conditions, these general terms and conditions shall prevail.
Article 6 Packaging
6.1 Packaging delivered via Karsten International, insofar as not intended for single use, including but not limited to pallets and crates, remains the property of Karsten International. Even if the Other Party has paid a deposit for it. The packaging will be returned at the price applicable at the time of return. The packaging to be returned must be delivered clean and fresh by the Other Party.
6.2 When packaging is returned via Karsten International's own means of transport, the packaging must be sorted and ready for transport.
6.3 Karsten International may refuse to take back packaging that has not been delivered via it.
6.4 In the event of loss or damage to the packaging, the Other Party's claim to repayment of the deposit money will lapse. The Other Party must compensate the damage suffered minus the deposit paid.
Article 7 Retention of title
7.1 All goods delivered by Karsten International within the framework of the Agreement shall remain the property of Karsten International until the Other Party has properly fulfilled all obligations arising from the Agreement(s) concluded with Karsten International.
7.2 Goods delivered by Karsten International, which come under the retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Other Party is not authorised to pledge the goods falling under the retention of title or to encumber them in any other way.
7.3 The Other Party must always do everything that can reasonably be expected of him to secure the property rights of Karsten International.
7.4 If third parties seize goods delivered under retention of title or wish to establish or assert rights to them, the Other Party is obliged to inform Karsten International of this immediately.
7.5 In the event that Karsten International wishes to exercise its property rights, the Other Party gives its unconditional and irrevocable permission in advance to Karsten International to enter all those places where its property is located and to repossess those goods.
Article 8 Force majeure
8.1 In these terms and conditions, force majeure means all external causes, foreseen or unforeseen, over which Karsten International cannot exercise any influence, but as a result of which Karsten International is unable to fulfil its obligations.
8.2 During force majeure, Karsten International's obligations will be suspended. Karsten International has the option to invoke the dissolution of the Agreement without being obliged to pay any compensation, or to fulfil the Agreement in a modified form.
8.3 If Karsten International has already fulfilled part of the agreed obligations when the force majeure occurs, or can only partially fulfil these obligations, Karsten International is entitled to invoice the part already fulfilled or the part that can be fulfilled separately and the Other Party is obliged to pay this invoice as if it were a separate Agreement. Article 16 applies in full.
Article 9 Liability
9.1 The liability of Karsten International in connection with any shortcomings in respect of goods delivered by it and related services is limited to fulfilment of the obligations described in Article 13 following a claim.
9.2 Karsten International undertakes to cover its liability risk by insurance in accordance with the customs applicable in the industry.
9.3 If the insurer in any case does not pay out or damage is not covered by the insurance, Karsten International's liability shall be limited to the invoice value of the order, or at least that part of the order to which the liability relates.
9.4 Karsten International shall never be liable for damage suffered, except if and insofar as the damage suffered has arisen through wilful intent or gross negligence on the part of Karsten International.
9.5 Karsten International shall never be liable for any indirect or immaterial damage such as, but not limited to, lost income and profits, consequential damage and customer loss.
9.6 Karsten International is not liable for the accuracy or completeness of information or advice provided before the Agreement is concluded. Nor is Karsten International liable for damage if the Other Party fails in its responsibilities or if the Other Party provides incorrect, deficient or incomplete information or materials.
Article 10 Obligations of the Other Party
10.1 On delivery by Karsten International, the Other Party must inspect the delivered goods in the presence of the driver. The Other Party must check whether the delivered goods fulfil the Contract, namely: a. whether the correct goods have been delivered; b. whether the delivered goods meet the quality requirements that may be set for normal use and/or for commercial purposes; c. whether the delivered goods correspond in terms of quantity (number, quantity, weight) with what has been agreed. If the shortcoming is less than 5% of the total, the Other Party will be obliged to accept the delivered goods in full against a proportional reduction of the price.
10.2 If the goods are delivered to a third party, who keeps them for the Other Party, the Other Party is obliged to carry out the inspection referred to in paragraph 1 or to have it carried out on the day of delivery.
10.3 The Other Party must notify Karsten International in writing of all visible defects within 24 hours of receipt of the goods, failing which the Other Party shall be deemed to have received the goods without any visible defects.
10.4 Failure by the Other Party to fulfil its obligations arising from the Agreement, as a result of which Karsten International suffers damage, the Other Party shall be obliged to compensate all damage caused to Karsten International.
Article 11 Indemnification
11.1 The Other Party indemnifies Karsten International against all claims by third parties for compensation of any damage suffered by third parties in connection with the execution of this Agreement, which is the result of the actions or omissions of the Other Party.
Article 12 Advertising
12.1 If the Other Party wishes to lodge a complaint, it shall be obliged to report this to Karsten International as soon as possible after the discovery of the deficiency or after it should reasonably have discovered the visible deficiency, but within 1 working day of delivery at the latest, failing which every claim of the Other Party towards Karsten International will lapse. If this notification was made verbally, it must be confirmed to Karsten International immediately in writing (e-mail, fax, letter). 12.2 Claims in respect of hidden defects must be made in writing to Karsten International within 5 working days of their discovery at the latest, but within 2 months of delivery at the latest. Except for goods that have an expiry date and the defect means that the shelf life is shorter than indicated, in which case a claim is possible until the expiry of that expiry date. This notification, if made verbally, must be confirmed to Karsten International immediately in writing (email, fax, letter).
12.3 If the Other Party wishes to complain, Karsten International must be given the opportunity to inspect the goods.
12.4 In the event of a justifiable complaint, Karsten International will redeliver the defective goods free of charge or credit the defective goods, at Karsten International's discretion.
12.5 After having established a defect in a good, the Other Party is obliged to prevent or limit further damage within all its possibilities.
12.6 Furthermore, the Other Party must have received written confirmation from Karsten International with regard to acceptance of the desired return products. Without this written confirmation, the Other Party has no right to return products purchased from Karsten International.
Article 13 Dissolution of the Agreement
13.1 The claims of Karsten International on the Other Party are immediately due and payable if after the conclusion of the Agreement Karsten International has become aware of circumstances giving cause to fear that the Other Party will not (be able to) fulfil its obligations. 13.2 In that case Karsten International is authorised to suspend further implementation of the Agreement or to proceed to dissolve the Agreement, without prejudice to Karsten International's right to claim compensation.
13.3 Without prejudice to the provisions of this article, Karsten International is authorised without notice of default or judicial intervention and without prejudice to Karsten International's other rights, to dissolve or suspend the Agreement in full or in part with immediate effect, if the other party dies, applies for a moratorium on payment or files for bankruptcy or if its bankruptcy is or has been applied for or declared. In these cases, every claim of Karsten International on the Other Party shall be immediately and fully due and payable without Karsten International being obliged to pay compensation and/or guarantee. In all cases in which the Other Party becomes aware of facts and/or circumstances that give it good reason to fear that it will not (be unable to) fulfil its obligations towards Karsten International, it is obliged to inform Karsten International immediately.
Article 14 Confidentiality
14.1 The Other Party is obliged to treat all that becomes known to it in the context of the implementation of the Agreement as confidential information, to keep it secret and to stipulate the same from staff members and third parties involved in the implementation of the Agreement.
Article 15 Payment
15.1 Unless otherwise agreed, payment must be made within 14 days of the invoice date, without any right to discount and/or set-off.
15.2 After the expiry of 14 days after the invoice date, the Other Party is in default and Karsten International is entitled to proceed to collection of the amount due.
15.3 If the Other Party remains in default of payment of what it owes Karsten International under the Contract, it shall owe the statutory interest thereon from the due date.
15.4 If the Other Party has failed to fulfil its payment obligations on time, Karsten International is authorised to suspend fulfilment of the obligations it has entered into towards the Other Party to deliver or to carry out work until payment has been made or sound security has been provided for this. The provisions of the previous sentence are without prejudice to Karsten International's right to compensation for damage and costs.
15.5 If damage occurs to the products during the suspension of the work pursuant to the previous paragraph, this shall not be at the expense of Karsten International, provided it has informed the Other Party in writing beforehand of this consequence associated with the suspension.
15.6 Payments made by the Other Party always serve in the first place to settle all interest and costs due, in the second place to settle claimable invoices that have been outstanding the longest, even if the Other Party states that the payment relates to a later invoice.
15.7 All costs relating to (extra)judicial collection shall be for the Other Party's account.
Article 16 Industrial and intellectual property rights
16.1 Karsten International expressly reserves any rights of intellectual and/or industrial property (trademarks) in connection with products delivered by it.
Article 17 Technical requirements
17.1 If the goods to be delivered in the Netherlands are to be used outside the Netherlands, Karsten International is not responsible for ensuring that the goods to be delivered meet the technical requirements, standards and/or regulations imposed by laws or provisions of the country where the goods must be used. This does not apply if, at the conclusion of the Agreement, the use abroad is reported on the submission of all necessary data and specifications.
17.2 All other technical requirements imposed by the Other Party on the goods to be delivered and which deviate from the normally applicable requirements, must be expressly laid down in writing by the Other Party when the Agreement is concluded.
Article 18 Lapse of rights
18.1 All rights of the other party shall lapse if the other party has not instituted proceedings against Karsten International within 6 (six) months after the end of the Agreement.
Article 19 Applicable law
19.1 Dutch law shall apply exclusively to every Agreement between Karsten International and the other party.
Article 20 Disputes
20.1 All disputes arising from agreements with Karsten International, including the claim for payment of overdue amounts, shall be settled by the competent court of the place of Karsten International's establishment to the exclusion of all other bodies.