GENERAL CONDITIONS OF SALE AND DELIVERY OF KROFTMAN
1.1. In these general conditions the following terms have the following meanings:
customer: the natural person or legal person who concludes an agreement with Kroftman or asks for an offer prior to the conclusion of an agreement;
Kroftman: the private company with limited liability Kroftman Structures B.V., entered in the commercial register of the Chamber of Commerce under number 09168984;
offer: the offer issued by Kroftman for the conclusion of an agreement;
acknowledgement of order or assignment: the written acknowledgement of an agreement by Kroftman
agreement: the agreement concluded between Kroftman and the customer for the sale and delivery of goods and/or for the performance of work;
work: the assembly work and other work performed by Kroftman within the framework of the agreement.
Article 2. Applicability of general conditions
2.1. These general conditions apply to all offers made by Kroftman and agreements concluded by Kroftman.
2.2. If and in so far as the customer has ordered Kroftman to assemble the sold and delivered goods, the “Kroftman Assembly Conditions” will also apply to that agreement.
2.3. Deviations from these general conditions or additions to them will only apply in so far as they have been agreed in writing, including by electronic means.
2.4. The customer’s general conditions do not apply.
2.5. By entering into an agreement the customer waives any general conditions used by the customer, so that only Kroftman’s general conditions apply to all agreements.
2.6. If these general conditions contain stipulations that deviate from the agreement, the agreement will prevail.
2.7. If a provision in these general conditions should not be legally valid, this will leave intact the validity of the other provisions. In that case the parties will replace the invalid provision in good mutual consultation, in such a way that the new provision follows the tenor of the not legally valid provision as much as possible.
2.8. The Dutch text of the agreement, of offers, of invoices and of these general conditions is the original and only valid text.
3.1. Kroftman’s offers are without engagement and may always be revoked, even if they contain a period for acceptance.
3.2. Descriptions, illustrations, models and/or samples by which the customer is informed about offered goods only give a general impression of the relevant goods.
3.3. The information referred to in article 3.2 (including advertisements and price-lists) are not part of the agreement between Kroftman and the customer, so that the customer cannot derive any rights from them.
3.4. If the customer acts in the course of a profession or business, the sections 6:227b (1) and 6:227c of the Civil Code do not apply.
Article 4. Conclusion of the agreement
4.1. The agreement is brought about by Kroftman’s acknowledgement of the order or assignment or because Kroftman begins to execute the order, whether or not on the basis of an offer made beforehand.
4.2. If the customer supplies the order or assignment orally, Kroftman’s written acknowledgement will be deemed to represent the contents of the agreement correctly, unless the customer immediately informs Kroftman of the customer’s objections to that representation.
4.3. Before Kroftman has received the agreed down payment, free cancellation of the order or assignment by the customer will be possible. After Kroftman has received the agreed down payment, cancellation of the order or assignment by the customer will not be possible. If the customer cancels the order or assignment, the customer cannot claim a refund of the agreed down payment from Kroftman.
4.4. Alteration of the order or assignment is possible in the case of non-customer-specific wishes. If alteration is possible, this may entail that the promised time of delivery is changed and that the following costs of alteration will be charged to the customer:
|Type of alteration
|Cost of alteration
|Change of colour combination
|Not possible after down payment
|Removal of options/rules of the order (excluding transport)
|Not possible after down payment
|Alteration of assembly method (anchor bolts or ground spikes)
|Before transport to customer: €550.00
|Alteration of assembly method (anchor bolts or ground spikes)
|After transport to customer: on request
|Addition of extra options/rules to the order (excl. transport)
|Before transport to customer: € 350,–
|Addition of extra options/ rules to the order (excl. transport)
|After transport to customer: on request
4.5. In the absence of an acknowledgement as referred to in article 4.1 and 4.2 Kroftman’s invoice will serve as acknowledgement of order or assignment.
5.1. The offered and agreed prices are exclusive of VAT.
5.2. The offered and agreed prices do not include:
2.a. unloading charges;
2.b. transport charges;
2.c. insurance costs;
2.d. assembly costs;
2.e. administrative charges, government levies;
2.f. other costs of third parties.
5.3. If the agreement also relates to the assembly of the sold and delivered goods the price of the assembly work will be specified separately in the offer or in a supplementary offer.
5.4. All prices are based on the cost price in force at the time of the conclusion of the agreement, including taxes, costs of transport, import duties and any other government levies. If the cost price undergoes an increase after the conclusion of the agreement and before delivery, for instance among other things as a result of changes in exchange rates or an increase of the price by the carrier, Kroftman will be entitled to raise the agreed prices accordingly and the customer will be bound by that raised price.
5.5. Kroftman is entitled to charge additional work separately.
5.6. Additional work in the sense of article 5.5 is understood to be: everything that is performed by Kroftman on the customer’s written or oral request or with the customer’s written or oral permission apart from what has been laid down explicitly in the agreement in connection with the delivery of goods and/or the performance of work.
6.1. Delivery will be made in the agreed place of destination and in accordance with the provisions of the latest “INCO terms” as mentioned in the acknowledgement of order or assignment.
6.2. The customer will see to the presence of a forklift truck (lifting power 1,500 kilograms) with an operator in the agreed place of destination and at the agreed time of delivery, so that the goods may be unloaded immediately.
6.3. Times of delivery are approximations and not deadlines. Transgression of the agreed time of delivery will not produce a shortcoming of Kroftman.
6.4. Furthermore the time of delivery will at any rate be extended by the period during which the customer is in default in connection with the fulfilment of any obligation from the agreement, including the obligation of (advance) payment and/or the provision of security, without prejudice to Kroftman’s right to dissolve the agreement in that case in accordance with the provisions in article 16.1.
7.1. Payment must be made at the agreed time or, if no time has been agreed, within 30 days after the invoice date, without the customer being entitled to rely on set-off or suspension.
7.2. If the customer has not paid within the term referred to in 7.1, it will be in default by operation of the law and Kroftman will have the right, without prior notice of default being required, to charge the statutory commercial interest as referred to in section 6:119(a) of the Civil Code from the due date of the invoice .
7.3. All costs that are connected for Kroftman with the collection of anything that the customer owes Kroftman will be for the customer’s account. The extrajudicial costs (also including a reasonable compensation for time spent by Kroftman on collection) are set at 15% of the principal sum due, with a minimum of €500,00.
7.4. On Kroftman’s first demand the customer will provide security (whether or not additionally) for the payment.
7.5. Before the start of and during the work Kroftman will be entitled to suspend the execution of the work until the time that the customer has paid an advance determined in reason for the work to be done or has provided security for the purpose.
Article 8. Transmission of risk and reservation of ownership
8.1. The customer will bear the risk of the goods sold from the time that they have arrived at the agreed place of destination.
8.2. Goods sold will be unloaded by and at the risk of the customer. The customer will always be entitled to inspect the sold goods prior to unloading . By unloading the customer accepts the correct and error-free delivery of the goods sold.
8.3. All goods delivered by Kroftman will remain Kroftman’s property until the time that the customer has entirely fulfilled all the customer ‘s obligations of payment to Kroftman on the basis of any agreement concluded with Kroftman for the delivery of goods or the performance of work, including claims with regard to failure in the performance of such an agreement. Kroftman will be entitled to prohibit the use of the goods by the customer or to make it impossible in a manner preferred by it.
8.4. The customer will be obliged to store the goods delivered by Kroftman at the customer ‘s own expense separately from other goods that the customer has in its possession, in such a way that the goods delivered by Kroftman can immediately be identified as being owned by Kroftman.
8.5. If goods delivered by Kroftman are forwarded in the normal course of the customer’s business a non-possessory pledge will be created in advance for the benefit of Kroftman on those goods as security for the customer’s fulfilment of any claims that Kroftman still has at the time of creation of the non-possessory pledge or will have in the future.
Article 9. Intellectual property rights
9.1. Kroftman is owner of and has the exclusive rights to its name, logo, drawings, illustrations, calculations, methods of work, procedures and the like.
9.2. The customer is not permitted to use the objects of intellectual property referred to in article 9.1 without Kroftman’s prior written permission.
Article 10. Privacy, data processing and security
10.1. If Kroftman considers this important for the performance of the agreement, the customer will inform Kroftman on request immediately in writing about the manner in which the customer fulfils its statutory obligation in the field of protection of personal data.
10.2. The customer indemnifies Kroftman for claims of persons whose personal data have been processed or will be processed within the framework of processing that is done by the customer or for which the customer is otherwise responsible on the basis of the law, unless the customer proves that the facts on which the claim is based must be imputed exclusively to Kroftman.
10.3. The responsibility for the data that are processed with use of a service that is rendered by Kroftman, lies exclusively with the customer. The customer gives Kroftman the guarantee that the contents, the use and/or the processing of the data are not unlawful and do not infringe any right of a third party. The customer indemnifies Kroftman against any legal claim of third parties, for any reason whatsoever, in connection with these data or the performance of the agreement.
10.4. If on the basis of the agreement Kroftman is obliged to provide data protection, such protection will comply with the specifications concerning protection as they have been agreed in writing between the parties. Kroftman does not guarantee that the data protection is effective under all circumstances. If explicitly described protection is lacking from the agreement, the protection will comply with the level that is not unreasonable, in view of the current state of technology, the sensitivity of the data and the costs associated with providing the protection.
10.5. If during the performance of the agreement or otherwise use is made of computer, data or telecommunication facilities, Kroftman will be entitled to assign access or identification codes to the customer. Kroftman is entitled to alter the assigned access or identification codes. The customer will treat the access and identification codes confidentially and with care and will only make them known to authorised employees. Kroftman is not liable for damage or costs that are the result of use or abuse that is made of the access or identification codes, unless the abuse has been possible as a direct result of a culpable shortcoming or omission of Kroftman.
11.1. The customer is obliged to check the delivered goods for shortcomings and/or defects immediately after arrival at the place of destination.
11.2. Complaints about goods delivered must be recorded immediately by the customer on the transport document or the delivery note.
11.3. Visible defects to the goods delivered must be reported as soon as possible, but at any rate within 5 working days after receipt of the goods, to Kroftman at the email address firstname.lastname@example.org with a statement of (1) the number of the acknowledgement of order, (2) the nature and a description of the complaints and (3) also with clear illustrations of the alleged defects/complaints, in the absence of which Kroftman will not be obliged to repair the alleged defects. At the customer’s option the defects may also be reported in the complaint desk of the customer’s account.
11.4. Taking the goods into use and/or reselling them will be considered acceptance by the customer.
11.5. The customer will be obliged to report hidden defects to Kroftman in writing within 5 working days after they have been discovered or could have been discovered in reason.
11.6. In the event of a complaint as referred to in this article the customer will be obliged to keep the goods that it complains about at Kroftman’s disposal for further examination. The customer will also be obliged otherwise to cooperate in a possible investigation into the goods and to grant Kroftman access, if necessary, to the buildings where those goods are present.
11.7. The return of goods will only be permitted after Kroftman’s prior written permission, on which occasion Kroftman will be entitled to impose conditions in connection with among other things the costs and the method of return.
11.8. A complaint as referred to in this article does not entitle the customer to suspend its obligations (of payment) to Kroftman and/or to rely on set-off.
11.9. In the absence of a timely notification as referred to in this article the customer’s right to rely on a shortcoming will lapse.
11.10. In no event will Kroftman be liable for defects in goods delivered, if their assembly has not been performed by or on behalf of Kroftman or if the goods have been treated or processed by third parties in any other way.
12.1. Kroftman warrants the soundness of the goods delivered by it, on the understanding that the contents of the agreement are decisive for the assessment of the type, the quality and the dimensions of the delivered goods and the method of execution.
12.2. Kroftman can only be held to the warranty provisions granted by it if and in so far as the customer has reported the complaints/defects to Kroftman in good time in accordance with the provisions in article 11.3.
12.3. The warranty referred to under 12.1 applies to the period and conditions mentioned on Kroftman’s website (www.kroftman.com) for every product group, commencing on the date of delivery and only means that Kroftman is obliged to deliver lacking goods as yet, to replace and/or repair goods delivered or to take back goods delivered, all this at Kroftman’s choice.
12.4. If an expiring warranty is given on a product, Kroftman will first assess whether the warranty request is well-founded. If the warranty request is well-founded, a discount percentage will be given by Kroftman to the buyer for the delivery of a replacement part at the selling price applicable at that time. Assembly (costs) is/are excluded from the warranty. The expiring warranty will be calculated in a linear fashion per month commencing from the time of delivery of the goods until the time of reporting the warranty claim to Kroftman.
Example: if in the case of a product with an expiring warranty of 10 years (120 months) a justified warranty claim is granted 12 months after delivery, a discount of 90% will subsequently be granted on the replacement part.
12.5. The warranty referred to in this article does not apply if:
5.a. the customer has not fulfilled the obligations as referred to in article 11 (Complaint) ;
5.b. the defect is the result of normal wear and tear, injudicious or incorrect use, insufficient professional and demonstrable maintenance, any shortcoming of the customer in following Kroftman’s oral or written instructions in connection with the use or the maintenance of the goods delivered;
5.c. the customer performs alterations or repairs to the delivered goods without Kroftman’s written permission;
5.d. the defect follows from an error in design, drawing, specification or instruction originating with the customer.
Article 13. Force Majeure
13.1. If Kroftman cannot perform the agreement, not in time or not properly, as a result of a cause that cannot be imputed to it, including but not limited to: weather conditions including a wind force that exceeds wind force 5, pandemic, lack of personnel, transport impediments, war conditions, stagnation in supply and stagnation in the regular course of business within the customer’s enterprise, the obligation to perform the agreement will be suspended until the time that Kroftman is able as yet to perform the agreement, without the customer being able to claim performance and/or compensation.
13.2. If the situation as referred to in 13.1 lasts for more than one month, Kroftman will be entitled to dissolve the agreement without the customer having any claim on compensation of damage in that case.
13.3. In the situation as referred to in 13.2 the customer will not be entitled to dissolve the agreement, unless it can prove that performance is essential for the conduct of its business. In that case dissolution must be effected in writing and at the latest within five days after expiry of the one-month period.
Article 14. Kroftman’s liability
14.1. If Kroftman should be liable to the customer, with observance of the provisions in the law, in the agreement and in these general conditions, that liability will be limited to the invoice value of the goods and/or work that have caused the damage, with a maximum of € 50.000,00.
14.2. Kroftman is not liable for direct and/or indirect consequential damage, including damage as a result of business stagnation and loss of production.
14.3. Kroftman is not liable for direct or indirect damage as a result of cybercrime.
14.4. The customer indemnifies Kroftman from any claims of third parties that follow from the work performed by Kroftman.
Article 15. Expiry clause
15.1. Subject to the provisions in section 6:89 of the Civil Code and subject to the provisions in these general conditions the customer’s claims on the strength of the agreement will expire if such a claim has not been brought before a competent court within one year after the facts on which the claim is based were known or could reasonably have been known to the customer.
Article 16. Termination of the agreement
16.1. If the customer:
1.a. fails in the fulfilment of the obligations following for it from the agreement;
1.b. submits a request for (provisional) suspension of payment;
1.c. is declared bankrupt;
1.d. (in the case of a natural person) is admitted to the Statutory Debt Consolidation Scheme for Natural Persons;
1.e. liquidates its enterprise or transfers it in full or in part to a third party;
1.f. loses the management of its property in full or in part by attachment, Kroftman will be entitled to suspend the agreement or dissolve it without prior notice of default in full or in part.
Article 17. Final provisions, choice of law and choice of forum
17.1. All agreements between Kroftman and the customer are governed by Dutch law, with exclusion of the United Nations Convention on Contracts for the International Sale of Goods 1980.
17.2. Any disputes following from the agreements concluded between Kroftman and the customer will be submitted to the civil court in the district of Gelderland, subject to the right of Kroftman to apply to another court with jurisdiction on the strength of the law.