Terms of service
General Terms and Conditions Kolenik B.V.
Kolenik B.V., with head offices according to the Articles of Association in Amsterdam, with registered office at Emmy Andriessestraat 512, (1087NE) Amsterdam, Netherlands.
Article 1 - Definitions
The following expressions as used in these General Terms and Conditions are to be understood as follows:
- Designer; Kolenik B.V.;
- Client; Counterpart of Designer who acts as a consumer or in the exercise of a business or company;
- Order; The delivery of goods or the work to be carried out agreed upon between Client and Designer and the materials thereby delivered by Designer;
- Additional or reduced supplies; Additions to or reductions from the agreed work or goods to be supplied requested by Client that result in an increase or reduction in the agreed price;
Article 2 - Scope
- 1. These General Terms and Conditions apply to all offers and agreements between Client and Designer.
- 2. Standard terms of Client shall only apply if confirmed by Designer in writing.
- 3. Should one or more of the provisions in these General Terms and Conditions be or become invalid or inapplicable at any time, this shall not affect the validity or applicability of the other provisions of these General Terms and Conditions. Designer and Client shall then consult to agree on new provisions in place of the invalid or inapplicable provisions, said provisions coming as close as possible to the objective and scope of the original provisions.
- 4. Should a situation arise between the parties that is not covered by these General Terms and Conditions, then this situation shall be assessed in the spirit of these General Terms and Conditions.
Article 3 - Offers
- 1. Designer shall ensure that every order is defined in writing fundamentally in an offer that shall be signed for confirmation by Client and returned to Designer.
- 2. An offer shall comprise a clear description of the work to be carried out and/or of the goods to be supplied with: a. the price of the work and b. the terms of payment.
- 3. Offers from Designer shall be based on the information provided by Client. Client shall be responsible for ensuring that he has provided all the essential information for design, execution and completion of the order to the best of his knowledge and belief.
- 4. Offers made by Designer shall be without obligation. The offers shall be open for acceptance within thirty (30) days unless otherwise indicated. Designer shall only be bound by the offers if the order is confirmed by the other party in writing within thirty (30) days unless otherwise indicated.
- 5. Designer cannot be bound by his offers or tenders if the Client can reasonably appreciate that the offer or tender or a part thereof contains an obvious mistake or typing error.
- 6. A combined price quotation shall not oblige Designer to carry out a part of the order at a proportional share of thequoted price. - 7. Offers shall not automatically apply for future orders. - 8. Amounts indicated in an offer shall be exclusive of VAT unless otherwise expressly indicated.
- 9. If the order confirmation (on points below) differs from the scope indicated in the offer, Designer shall not be bound by the offer, Designer shall not be bound by the offer. The agreement shall then not be concluded with this deviating order confirmation unless the supplier indicates in writing that he is in agreement with the deviation(s).
Article 4 - Conclusion of the Agreement
- 1. An agreement shall be concluded between Designer and Client only on the date on which the Designer receives the offer counter signed as order confirmation by Client, notwithstanding the provisions of Article 3 clause 9.
- 2. After the conclusion of an agreement, a declaration by Client that he wishes to change or cancel his order shall not prevent an agreement being concluded on the basis of the offer, or of the deviating order confirmation.
- 3. Any supplementary agreements and/or commitments undertaken by suppliers or employees or on behalf of Client and/or by other persons acting as representatives shall only be binding on Designer if these agreements and/or commitments have been confirmed in writing by persons authorised as representatives.
Article 5 - Obligations of the Client
- 1. Client shall be responsible for the quality and suitability of the materials and media provided or prescribed by him and for the correctness of the information provided by him.
- 2. Client shall be obliged to ensure that Designer can carry out his work correctly and in a timely manner. This shall also include being in possession of the necessary official permits, unless otherwise agreed.
- 3. If Client does not meet, does not meet in good time or does not meet correctly one of more obligations, he shall be obliged to compensate Designer for the associated damage.
- 4. Client shall bear the risk for damage cause by: • Errors in the contracted work; • Errors in the constructions and methods of working requested by Client; • Obvious faults or defects that Client could reasonably discover in the object on which the work is to be carried out; • Flaws in or unsuitability of materials or media provided by Client.
Article 6 - Specimens and Models
- 1. If a specimen or model is shown or sent to Client, this shall be regarded as having been shown or sent only for illustrations, unless otherwise expressly agreed.
- 2. If the case of an order for immovable property, indications of an area of other dimensions and indications shall also be regarded as having an indicative character without the product to be supplied having to meet these indications.
Article 7 - Terms of Delivery and Delivery Dates - 1. Delivery times quoted by Designer shall begin on the date on which the Designer receives the offer countersigned as order confirmation by Client, as long as Designer is in possession of all the information necessary for the execution of the order.
Emmy Andriessestraat 512 1087NE Amsterdam
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- 2. Delivery times quoted by Designer shall never be regarded as deadline unless otherwise expressly agreed in the offer. - 3. In the event of a delay in delivery, Designer must be placed in default in writing by Client. If however, in deviation from the above, a contractual penalty has been expressly agreed in the offer in the event of the delivery time being exceeded, this penalty shall not be payable is the exceeding of the delivery time is a consequence of the cases of force majeure indicated in Article 17 of these General Terms and Conditions.
- 4. Unless indicated differently in the offer, goods shall be delivered ex works. Furthermore, goods shall be transported for the account and risk of Client.
- 5. In the event of a request by Client for a delivery of goods in some other than the normal manner, the associated additional costs shall be borne by Client.
- 6. If delivery is made in parts, Designer shall have the right to regard each delivery as a separate transaction.
- 7. Client shall be obliged to accept purchased goods within a period of 14 days. Failing this, Designer shall be entitled on the grounds of the provisions of Article 6:60 BW to demand that the authorised judge shall relieve Designer of his obligation to supply the agreed goods in order to then demand payment of the purchase price of the part of the goods not accepted without further placing Client in default.
Article 8 - Examination and Complaints of Delivered Goods
- 1. Client shall be responsible for the correctness and completeness of the data provided to Designer. Where Designer’s offer relates to data, dimensions, colour fastness and such aspects provided by Client, Client must expect the normal tolerances and minor deviations in the goods supplied by Designer. In particular this shall apply to deviations in the contracted quantities; here again, Client must expect the normal tolerances. The goods supplied by Designer may thus differ from the description in the order if and insofar as this relates to minor differences in dimensions, differences in quantities and minor changes.
- 2. Complaints by Client relating to defects in the goods that are visible must be submitted by Client to Designer within eight (8) days of delivery (or within 8 days of the invoice date if the goods are not delivered to the buyer (customer)). This notification shall be made by registered letter containing a clear and detailed description of the complaint and stating the invoice number under which the goods concerned were invoiced. Client must carry out this examination carefully and in good time.
- 3. Defects that were not visible at the time of delivery nor which could have been discovered with a careful and timely examination must be notified by Client to Designer within eight (8) days of discovery of the defect in the same way as described in clause 2 of this Article.
- 4. Any right of claim by Client against Designer relating to defects in the goods supplied by Designer shall be void if:
- The defects are not notified to Designer within the periods specified for this in clause 2 and 3 and/or not in the manner stipulated;
- Client gives no and/or insufficient cooperation to Designer in examining the justification for complaints;
- Client has not installed, handled, used, stored or maintained the goods in the proper manner or he has used or handled the goods under conditions or for purposes other than those provided for by Designer;
- Client continues to use the goods to which the complaints have been raised;
- The warranty period stipulated in Article 16 clause 6 has expired. - 5. In the event of disputes concerning the quality of goods supplied by Designer, a known expertise office stipulated by Designer shall make a binding declaration.
Article 9 - Performance of the Work and Subcontracting - 1. Designer shall carry out the work within the framework of the order to the best of his understanding, knowledge and ability. - 2. Should the good performance of the order require, Designer shall have the right to have (parts of) the work carried out at his discretion by third parties. Designer shall be obliged to make every effort to ensure that the agreed obligations and quality are observed. - 3. Designer assumes no liability for the work carried out by third parties where such third parties have concluded an agreement with Client.
- 4. Designer shall not be liable for damage of any kind caused by Designer resulting from incorrect and/or incomplete data provided by Client, unless this incorrectness or incompleteness should have been recognisable for Designer.
- 5. If it is agreed that the order is to be carried out in phases, Designer can postpone the performance of the parts belonging to a subsequent phase until such time as Client has approved the results of the previous phase in writing.
- 6. If work within the framework of the order is carried out by Designer or by third parties engaged by Designer on the premises of Client or on premises stipulated by Client, then Client shall ensure - free of charge to Designer - the reasonable facilities requested by the employees.
Article 10 - Amendment to the Work
- 1. Parties can agree on increases or reduction in the work, whereby Designer shall be responsible for ensuring that such amendments are recorded in writing and confirmed in writing by Client.
- 2. Client shall accept that the time schedule for the order may be influenced if parties agree in the meantime on changes in approach, method or scope of the order and the resulting work.
- 3. If changes occur in the meantime in the execution of the order at the request of Client, Designer shall make the necessary amendments by agreement with Client. If this results in additional work, this shall be invoiced to Client as a supplementary order. Designer shall be entitled to invoice the additional costs for the amendment to the order to
Client.
- 4. Without being in default, Designer may refuse a request for an amendment in the agreement if this would have a qualitative and/or quantitative influence, for example in the work to be carried out or in the goods to be supplied.
Article 11 - Unforeseen Complications
- 1. Should unforeseen complications arise, Designer shall notify Client accordingly as quickly as possible.
- 2. If Designer is unable to contact Client, Designer shall interrupt the work unless the unforeseen complication requires immediate action.
- 3. Any additional costs incurred by Designer in conjunction with an unforeseen complication requiring immediate action and which are reasonable in limiting the damage shall be refunded by Client.
- 4. If the unforeseen complication does not require immediate action, Client can order an increase or reduction in the work.
Emmy Andriessestraat 512 1087NE Amsterdam
T +31(0)20 820 0999 info@kolenik.com Kolenik.com
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ABN-AMRO IBAN NL25 ABNA 0621920266
KVK Arnhem 10.03.51.89 BTW NL 8197.15.050.B.01
Article 12 - Examination and Complaints of the Work Carried Out
- 1. Complaints about the work carried out shall be made by Client to Designer in writing within eight (8) days of the invoice date, but not later than three (3) months after completion of the respective work. The default claim shall contain as detailed a description of the default as possible so that Designer is able to react adequately.
- 2. If a complaint is justified, Designer shall rectify the work as agreed unless this has become demonstrably pointless for Client. The latter shall be notified by Client to Designer in writing.
- 3. If the rectification of the agreed work is no longer possible or expedient, Designer shall only be liable within the terms of Article 16 of these General Terms and Conditions.
Article 13 - Prices
- 1. The prices quoted in the offer, contracts and order confirmations are based on the cost factors such as exchange rates, manufacturing costs, raw material and material prices, wage and transport costs, insurance premiums, taxes, import duties and other governmental charges applicable at the time of conclusion of the agreement.
- 2. In the event that increases occur in one or more of the cost factors after the date on which the agreement is concluded but before the date for the start of the work or the delivery of the goods, Designer reserves the right to pass on these increases to Client.
- 3. Unless otherwise agreed in writing between the parties, the tariff for the work to be carried out by Designer shall be based on an hourly rate. In the case of the delivery of goods, the tariff shall be based on a total price.
- 4. If Designer has agreed an hourly rate with Client, Designer shall nevertheless be entitled to increase this rate.
- 5. If Client does not wish to accept the increase in the rate announced by Designer, Client shall be entitled to annul the order in writing within eight (8) days of the announcement of the increase, or to annul the order as of the date on which the increase is to come into force announced in the notification by Designer.
Article 14 - Terms of Payment
- 1. Payment shall be made Euros, unless otherwise agreed, without any deduction or discount by not later than 14 days after the invoice date, unless otherwise agreed in writing.
- 2. If Client does not meet his payment obligations in good time, he shall be legally considered to be in default without the requirement for a notice of default. Nevertheless, Designer shall send a payment reminder after passage of the payment date (as indicated in clause 1 of this article) in which he draws the attention of Client to this default and grants him the opportunity to make payment within 8 days of receipt of this payment reminder.
- 3. In the event of an overdue payment, Designer shall be entitled to claim a minimum of 1% interest (unless the statutory interest rate is higher, in which case the statutory interest rate shall be payable) for every four weeks beginning from the moment at which Client is in default until the day of complete payment of the due amount.
- 4. In the event of payment not being made in good time, Designer shall also have the right to postpone the fulfilment of all obligations towards Client, notwithstanding rights arising under the applicable laws.
- 5. On expiry of the date indicated in the third sentence of clause 2, Designer shall be entitled to initiate debt collection payments for the amount due without further notice of default.
- 6. From the moment at which Client is in default, Designer shall be entitled to invoice Client for all costs for the collection of the due amount. The out-of-court costs shall be calculated on the basis of the charges common at that moment in the Dutch debt collection practice. If, however, Designer incurs higher costs that were reasonably necessary, the actual costs incurred shall be payable. Any court costs and execution costs shall also be payable by Client. Client shall also be liable to pay interest on the debt collection cost incurred.
- 7. Designer shall be entitled to offset payments made by Client first against the costs, then against the accrued interest charges and finally against the main amount due and the continuously due interest. Designer can refuse complete payment of the main amount if the accrued and ongoing interest charges and debt collection costs are paid at the same time.
- 8. In the event of liquidation, bankruptcy, attachment or suspension of payments by Client, the amounts receivable by Designer from Client shall become immediately due.
Article 15 - Retention of Title
- 1. All goods supplied by Designer within the framework of the agreement shall remain the property of Designer until such time as Client has correctly fulfilled all obligations under the concluded agreement.
- 2. Goods supplied by Designer under retention of title as indicated in the first clause shall not be sold any may not be used as a form of payment. Client shall not be entitled to assign or attach in any other way the goods supplied under retention of title.
- 3. Client shall at all times take all reasonable measures to protect the ownership rights of Designer.
- 4. If third parties wish to make attachment on the goods supplied under retention of title or to assert or claim rights on these goods, Client shall be obliged to notify Designer accordingly without delay.
- 5. Client shall be obliged to insure and keep insured the goods supplied under retention of title against fire, explosion and water damage and against theft and to present the insurance policy to Designer on request. In the event of an insurance payment, Designer shall be entitled to claim this payment up to the value of the goods supplied under retention of title.
- 6. If Designer wishes to exert his ownership right defined in this article, Client shall give his unconditional and irrevocable agreement in advance to Designer and to third parties specified by Designer to
enter all premises where the goods are held and to take possession of the goods.
Article 16 - Intellectual Property Rights and Copyrights - 1. Notwithstanding the provisions elsewhere in these General Terms and Conditions, Designer reserves the rights and entitlements due to him under the Copyright Act.
- 2. Models, methods and instruments developed and/or employed by Designer for the execution of the order are and shall remain the property of Designer. Publication or other forms of disclosure shall only be permitted with the written approval of Designer.
- 3. All documents provided by Designer may not be disclosed or brought to the notice of third parties by Client without the prior approval of Designer.
- 4. Designer reserves the right to use the knowledge gained in the performance of the work for other purposes insofar as no confidential information is thereby brought to the notice of third parties.
Emmy Andriessestraat 512 1087NE Amsterdam
T +31(0)20 820 0999 info@kolenik.com Kolenik.com
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KVK Arnhem 10.03.51.89 BTW NL 8197.15.050.B.01
Article 17 - Liability and Guarantee
- 1. Every order confirmed by Designer shall be regarded as an obligation to perform. Designer cannot be held responsible in any way for the failure to achieve results. Designer shall only be liable for shortcomings in the execution of the order resulting from carelessness and lack of knowledge in the provision of advice and the execution of orders.
- 2. If Designer is responsible for direct damage, then the liability shall be limited to the maximum declared amount. Liability shall be limited in all cases to the maximum amount paid by Designer’s insurance company in the particular case.
- 3. In deviation from the provisions of clause 2. of this article, in the case of an order with a longer period than six months, the liability shall furthermore be limited to the portion of the fee due for the last six months.
- 4. Designer shall only be liable for direct damages. Direct damages are:
- The reasonable costs for the identification of the cause and the scope of the damage, insofar as the identification relates to damage in the sense of these General Terms and Conditions; • Any reasonable costs incurred in bringing the inadequate performance by Designer into line with the agreement insofar as the causes of the inadequate performance are attributable to Designer; • Reasonable costs incurred in preventing or limiting damage, insofar as Client demonstrates that these costs have resulted in a limitation of direct damage as defined in these General Terms and Conditions.
- 5. Designer shall not be liable for indirect damages, including but not limited to consequential damage, loss of profit, loss of savings and damage due to company or other inactivity.
- 6. Client can claim shortcomings in the execution of the order if notice is given by Client in writing within three (3) months of completion of the order.
- 7. Only in cases where the warranty obligations for the goods supplied by Designer are not borne by third parties (such as manufacturers), Buyer can make (warranty) claims against Designer. The liability of Designer in this case shall be limited to faults attributable to manufacturing faults and material flaws.
- 8. In the event of a complaint and if the grounds for the complaint relate to the quality and these grounds have been confirmed by Designer and he is liable in the sense of clause 12 of this article, Designer shall be exclusively liable - at our discretion
- To remedy faulty (free of charge);
- To supply goods or parts to be replaced after the return of the faults goods or parts;
- To refund the purchase price/credit amount received from the invoice sent to Client with rescission without legal agreement from the concluded agreement, in all cases only insofar as purchase price, invoice and agreement relate to the delivered faulty goods; d. Compensation to be paid agreed with Client in a form other than that defined here.
- 9. All Designer’s warranty obligations shall be voided if Client carries out repairs and/or modifications to the goods or has such repairs and/or modifications carried out without prior express written authorisation.
- 10. Notwithstanding any obligations of Designer on the basis of the above, Designer shall not be obliged to pay any compensation for damages to Client and others except in cases of intent or fault on the part of Designer (for which Client holds him responsible with the legal means for proof).
- 11. Client shall not be entitled to send back any goods on which there are no justified grounds for complaint. If goods are returned without good reason, all costs associated with the return shall be borne by Client. In such cases Designer shall be free to dispose of the goods to third parties for the account and risk of Client.
- 12. Client shall be obliged to indemnify Designer against all and any claims that third parties may make against Designer in conjunc tion with the execution of the agreement, insofar as the applicable law does not rule out that the damage and costs arising from these claims are for the account of Client.
- 13. Designer shall not be liable for damage of any kind resulting from the fact that Designer has based the work or deliveries of goods on incorrect and/or incomplete information provided by or on behalf of Client.
Article 18 - Force Majeure
- 1. Parties shall not be obliged to fulfil any obligation towards one another if these obligations are hindered as a result of circumstances beyond their control and which according to the law, a legal act or generally held view are not for their account.
- 2. Force majeure within the context of these General Terms and Conditions shall include - in addition to the understandings in law and jurisprudence - all external causes, foreseen or unforeseen, on which Designer cannot exert any influence and as a result of which Designer is unable to fulfil his obligations. Designer shall also have the right to claim force majeure if the circumstances hinder the (further) fulfilment of the agreement after Designer had attempted to fulfil his obligations.
- 3. During the period for which force majeure prevails, Designer can postpone his obligations under the agreement. If this period exceeds a term of two months, either party shall be entitled to rescind the agreement.
- 4. Insofar as Designer has already partially fulfilled his obligations under the agreement or will be able to fulfil these obligations at the time of occurrence of the force majeure situation and the part fulfilled or the part to be fulfilled has an independent value, Designer shall be entitled to separately invoice the part already fulfilled or the part to be fulfilled. Client shall be obliged to pay this invoice as if there were a separate agreement.
Article 19 - Confidentiality
- 1. Both parties shall be obliged to treat all confidential information which they may receive from one another or may obtain from other sources within the context of their order with the strictest confidence. Information shall be considered as confidential if this is stated by the other party or if this is obvious from the type of information.
Article 20 - Suspension and Rescission of the Order - 1. Designer shall be obliged to suspend the fulfilment of the obligations or to suspend the agreement with immediate termination if; • Client does not fulfil, does not fulfil completely or does not fulfil in a timely manner the obligations under the agreement;
-
After conclusion of the agreement, Designer becomes aware of circumstances that give good grounds to fear that Client will not fulfil the obligations;
Emmy Andriessestraat 512 1087NE Amsterdam
T +31(0)20 820 0999 info@kolenik.com Kolenik.com
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- Client is requested at the time of conclusion of the agreement to provide securities for the fulfilment of his obligations under the agreement and these securities are not provided or are inadequate; • Due to delays on the part of Client, Designer can no longer be expected to fulfil the agreement on the originally agreed terms, Designer shall be entitled to rescind the agreement.
- Circumstances arise of a nature that make the fulfilment of the agreement impossible or if an unamended continuation of the agreement cannot be reasonably expected of Designer.
- 2. If the rescission of the agreement is attributable to Client, Designer shall be entitled to claim damages, including the resulting direct or indirect costs.
- 3. If the agreement is rescinded, all claims by Designer against Client shall be immediately payable. If Designer suspends the fulfilment of the obligations, he shall retain his entitlement in law and under the agreement.
- 4. If Designer suspends or rescinds the agreement, he shall in no way be obliged to compensate damage or costs incurred in any way or to indemnify Client, whereas Client on the grounds of non-fulfilment shall be obliged to pay compensation or to indemnify Designer.
- 5. In the event of liquidation, of (a request for) suspension of payments or bankruptcy or of attachment - if and insofar as the attachment is not lifted within three months - on the part of Client, of debt settlement or any other circumstances as a result of which Client can no longer freely dispose of his assets, Designer shall be free to rescind and immediately terminate the agreement or to cancel the order or agreement without any obligation on his part to pay any compensation for damages or indemnification. In this case claims by Designer against Client shall be immediately payable.
- 6. If Client cancels an order for work already placed completely or in part, the parts ordered or produced for this work, plus any transport and delivery costs for these and the costs for the working time reserved for the fulfilment of the order shall be invoiced in total to Client.
Article 21 - Disputes and Applicable Law
- 1. In the event of disputes arising out of this agreement or out of agreements based on this agreement, the parties shall attempt in the first instance to settle such disputes out of court by means of negotiation.
- 2. If it becomes apparent that it is not possible to settle the dispute independently as provided for here, then the dispute shall be settled by the competent courts in the Netherlands.
- 3. Every order between Designer and Client shall be subject to Dutch law, even if Client is resident or has registered offices abroad.
Article 22 - Amendment of the General Terms and Conditions
- 1. These General Terms and Conditions are deposited with the Chamber of Commerce in Nijmegen.
- 2. The latest deposited version or the version applicable at the time of conclusion of the agreement shall be applicable in all cases.
Emmy Andriessestraat 512 1087NE Amsterdam
T +31(0)20 820 0999 info@kolenik.com Kolenik.com
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ABN-AMRO IBAN NL25 ABNA 0621920266
KVK Arnhem 10.03.51.89 BTW NL 8197.15.050.B.01