Terms and conditions
General Terms of Sale, Kisuma Chemicals BV, located Billitonweg 7, 9641 KZ Veendam (the Netherlands).
1. These general terms and conditions govern all offers, contracts, deliveries of goods and provision of services of the user of these general terms and conditions (hereinafter referred to as the Vendor) versus the other contract party (hereinafter referred to as the Buyer) where not expressly agreed otherwise between Vendor and Buyer. Furthermore, they govern all subsequent offers, agreements, deliveries and resulting undertakings, however created.
2. These general terms and conditions also govern any distance contract and orders concluded between Vendor and Buyer. A distance contract is a contract concluded between Vendor and Buyer as part of an organised system for the remote sale of products, digital content and /or services, where full or partial use is made of one or more remote communication technologies until the conclusion of the contract.
3. Before the distance contract is concluded, the text of these general terms and conditions shall be made available to the Buyer. If this is not reasonably possible, Vendor shall indicate, before the distance contract is concluded, how the general terms and conditions may be inspected at the Vendor´s offices and that they shall be forwarded promptly at the Buyer´s request, at no charge.
4. If the distance contract is concluded electronically, contrary to the previous paragraph, and before the distance contract is concluded, the text of these general terms and conditions may be made available electronically to the Buyer such that the Buyer can easily save these on a durable data carrier. If this is not reasonably possible, Vendor shall indicate, before the distance contract is concluded, where the general terms and conditions may be inspected electronically and confirm that they will be forwarded at the Buyer's request either electronically or otherwise, at no charge.
5. The applicability of any terms and conditions of purchase applied by the Buyer shall be excluded, if and to the extent these conflict with these terms and conditions, unless the Buyer´s terms and conditions have been expressly accepted in writing by the Vendor for a specific transaction. This acceptance does not mean that the terms and conditions of purchase shall also apply to any other Buyer transactions.
Offers and order confirmations
6. All of the Vendor's offers shall be without obligation, unless agreed otherwise. The contract shall only be concluded by means of a written order confirmation issued by the Vendor, or (the start of) the actual execution by the Vendor, or (another) acceptance by the Vendor of the order, tacitly or otherwise. If the Vendor´s written confirmation is not contested within five working days, parties shall be bound by it.
7. If the Buyer cancels the order either in whole or in part, or fails to meet its purchase obligation, Buyer shall owe Vendor compensation without a notice of default being required and regardless of whether the Vendor actually suffers any damage due to the cancellation or the non-purchase. The Buyer shall also compensate any damage to the Vendor which the Vendor suffers due to the cancellation or the non-purchase. The stipulations of this article shall be without prejudice to the Vendor´s right to claim performance, possibly with compensation, rather than the compensation fee referred to above.
8. Amendments to the contract, of whatever nature, shall apply only if agreed in writing between the Vendor and the Buyer. If after conclusion of the contract the Buyer requires amendments to the execution, it shall be up to the Vendor to decide if and if so, subject to which (further) conditions these amendments may be accepted as part of the contract. In the event of any amendments (of whatever nature), Vendor shall be permitted to charge the Buyer for these amendments.
9. Unless specified otherwise in writing Seller’s general product specification shall apply.
10. The time and place of the title transfer of the goods by the Vendor are governed by the latest international rules for the interpretation of trade terms established by the International Chamber of Commerce (hereafter the Incoterms). Vendor shall make an effort to supply within the delivery term agreed to in the contract. Exceeding the term of delivery shall not constitute a default as referred to in Section 6:83 sub a of the Dutch Civil Code, unless Vendor and Buyer have expressly agreed in writing that a term of delivery is to be regarded as binding. In that case, Vendor shall be liable only for damage demonstrably suffered by Buyer up to the invoiced sum of the delayed part of the delivery. If a delivery term agreed by parties as binding is exceeded, Buyer shall not be entitled to suspend or fail to observe any obligation towards Vendor. In all other cases of delay, Vendor shall not be liable for any damage resulting for Buyer from that delay.
11. Unless otherwise is agreed between parties, the goods are delivered ex works and ex warehouse in accordance with the most recent edition of the international rules for the interpretation of trade terms of the International Chamber of Commerce (Incoterms). In as far as parties have agreed that contrary to the aforesaid, the transport of the goods shall be organized by Seller, costs and risks for Buyer and Seller are determined in accordance with the agreed Incoterms.
12. Buyer shall be obliged to call off the goods purchased within the term of delivery and/or call-off agreed to in the contract. If no delivery term was specified or if it was specified that delivery would take place on a call-off basis without terms having been arranged for such call-off, the goods shall be called off within three months after the date the contract was concluded subject to article 3. If the Buyer has failed to call off the purchased goods on time, Vendor shall send Buyer a written notification. Buyer shall be in default after three working days following that written notification due to the mere passage of that term without any (further) notice of default being required. In addition to any other statutory rights or rights under these general terms and conditions – in particular subject to article 7 - resulting from Buyer's default, Vendor shall have to right to dissolve the contract without judicial intervention for the outstanding part of the contract, by informing the Buyer.
Capacity and inspection
13. A consignment or delivery note or similar document issued upon delivery of the goods shall be deemed to correctly represent the number of goods supplied, unless Buyer objects to the Vendor in writing immediately after receiving the goods.
14. If the Buyer has not raised any objections regarding the capacity of the goods delivered within 50 days after delivery, the Buyer shall lose all rights to claim for the goods delivered.
15. Buyer's right to claim for the goods delivered shall in any case lapse as soon as the goods have been processed.
Claims and liability
16. On penalty of the Buyer's loss of the right to claim, all claims shall be made in writing within the terms stipulated in these general terms and conditions. Where these general terms and conditions do not provide for a shorter term, or such shorter term may not reasonably be asked of Buyer, a claim shall in any case be made no later than eight days after the Buyer has learned of any defects in the delivery, or Buyer should have reasonably been aware of such defects, without prejudice to the stipulations of article 15. All claims shall take place subject to a detailed description of the nature of the complaints.
17. Vendor´s liability, on whatever account, shall be restricted to the invoiced amount of the goods delivered, to which the complaints considered founded by the Vendor relate, or to an exchange of the goods by similar goods, or by a reduction of the purchase sum of those goods, to be decided by the Vendor. If the Vendor exchanges the goods, the associated costs of transportation shall be for Vendor´s account. All other claims, of whatever nature or origin shall be excluded. Vendor shall never be liable for any consequential damage or any direct or indirect trading loss, business interruption loss delays in the production process, loss of orders, loss of profit, processing costs, etcetera.
18. The Buyer shall indemnify the Vendor for any liability towards any third parties that extends beyond the liability Vendor has towards the Buyer.
19. All liability or warranty for damage arising on the territory of Canada and/or the United States of America, as well as damage to be assessed under the law of these states, shall be excluded.
20. The prices listed by Vendor are based on cost components applicable on the offer date. Vendor shall charge Buyer for any increases in cost components, of whatever nature, arising after the offer was issued and /or during the execution of the contract, for those parts of the contract which, at the time of the increase, have not yet been executed.
21. The prices offered and agreed are in Euros and exclusive of VAT, unless agreed otherwise. Unless expressly agreed otherwise, other statutory taxes, levies and duties are not included in the price. Payment and security
22. Unless agreed differently in writing, payments shall be made within 30 days from the date of invoice. Claims for goods delivered shall not entitle the Buyer to suspend payment and /or invoke a right of retention. The time of payment shall be recorded as the time the amount due is received in the Vendor´s bank account. Payments received shall first settle payment of interests and costs, followed by the oldest principal sum(s), irrespective of the Buyer indicating differently in this respect.
23. If the invoiced amount has not been paid on the due date, Buyer shall be legally in default versus the Vendor without a demand or notice of default being required. From the due date, Buyer shall owe a default interest of 15% per year, plus any extrajudicial collection costs, subject to a minimum of 15% of the amounts payable by the Buyer.
24. For the term of the contract, the Vendor shall be entitled at all times to require advance payment or payment security.
25. All of the Vendor´s claims on Buyer shall be payable instantly and immediately: - if Buyer fails to meet its payment or any other obligations to the Vendor, or fails to meet these on time; - if Buyer refuses to meet the Vendor's request as referred to in article 24; - if Buyer is declared bankrupt or Buyer applies for a moratorium; - if any of Buyer´s assets are seized; - if Buyer sells or liquidates the business.
26. In all cases set out in article 25, in addition to the other rights awarded to Vendor under the law and this agreement – including these general terms and conditions – Vendor shall have the right to suspend its obligations or to dissolve in full or in part the contract by informing the Buyer, without any notice of default or judicial intervention being required, and without prejudice to the Vendor's right to claim compensation in addition to, or instead of, the suspension or dissolution.
Retention of title
27. Goods shall be delivered by Vendor subject to a retention of title. This retention of title shall apply to claims to pay all goods supplied by or to be supplied by Vendor to Buyer, and to any services or work to be provided by, or to be carried out by Vendor for Buyer subject to any contract, and to claims due to Buyer's failure to observe this contract or these contracts, therefore also including these general terms and conditions.
28. In all cases referred to in article 25, Vendor shall be entitled to take back the goods subject to the right of retention. Where necessary, Vendor shall be deemed to be irrevocably authorised to remove these goods, or to have them removed, from their location.
29. Buyer shall give Vendor, or third parties appointed by Vendor, permission to access its premises, warehouses, plants etc., for that purpose. If the laws of the country of destination of the purchased goods provide more options for the retention of title than set out above, parties agree that these other options shall have been stipulated on Vendor's behalf, on the understanding that if it cannot be established objectively to which other regulations this stipulation applies, the stipulations above regarding the retention of title shall continue to apply.
30. If the Vendor has retrieved goods in accordance with article 28, Buyer shall be credited for the value of the retrieved goods at the time of the retrieval, to be established by the Vendor, minus the costs of retrieval.
31. Buyer shall have the use of the goods subject to the retention of title as part of its regular business. Regular business shall in any case not include providing security to third parties, or alienation as part of a full or partial transfer of the Buyer's business. If the Buyer has use of the goods, it shall vest on behalf of the Vendor, at the Vendor's choice, an undisclosed or disclosed right of pledge on the claims resulting from this use.
32. All intellectual property rights related to the products and/or services, as well as the designs, programs, documentation and all other materials developed and/or used to prepare or execute the contract between the Vendor and the Buyer, or that result there from, shall remain exclusively with the Vendor or its suppliers. The delivery of products and/or services shall not extend to any transfer of intellectual property rights. Buyer shall only acquire a non-exclusive and non-transferable user right to the use of the products and the results of the services for the agreed purposes. During this use, the Buyer shall strictly observe the conditions laid down in the general terms and conditions, or otherwise imposed on Buyer. Buyer shall require the prior written permission from Vendor before in any manner, either partly or fully, publishing, disseminating, or making available to a third party the products and results of the services. Buyer shall not remove or amend any signs applied by the Vendor or its suppliers regarding copyrights, trademarks, trade names or intellectual property rights. Vendor shall guarantee that it is authorised to issue said user rights to Buyer and shall indemnify Buyer from any third parties in this matter. This stipulation shall not apply if and to the extent the products and/or results of the services have been changed and /or if these have been delivered together with any third-party goods, unless in the latter case the Buyer is able to demonstrate that the third-party claims relate solely to the products supplied by the Vendor and/or are the results of its services.
33. If due to a situation of force majeure the Vendor is unable to deliver (as normally), it shall be entitled to extend the delivery time by the duration of the force majeure, or to dissolve the agreement, if not yet executed, without being obliged to pay any compensation. Situations of force majeure include: war, uprising, riots, wilful damage, strikes and lockout, failure of machines and/or tools, unavailability of transportation, stagnations in the supply of raw materials or energy, government measures, as well as any situation, of whatever nature, which reasonably makes it impossible for Vendor to deliver as normal.
34. Advice given by or on behalf of Vendor or proposals or recommendations made regarding materials, constructions, executions and applications shall be without obligation at all times. Vendor shall never be liable for whatever damage arising from its advice, proposals or recommendations. Severability
35. If one or more stipulations in the contract between Vendor and Buyer – including these general terms and conditions – are found to be legally void, all other stipulations shall remain in effect. The invalid stipulations shall be replaced by stipulations that are, in a legally effective manner, similar to these invalid stipulations in view of the intention of parties.
Place of execution, choice of law, competent court
36. Dutch law applies to offers made by the Buyer and to the contract between Vendor and Buyer. This shall also apply to contracts concluded with buyers residing or established abroad. Any disputes arising from this legal relationship and resulting contracts shall be put before the competent court in the place where the Vendor is registered or, at the discretion of the Vendor, the competent court of the place where the Buyer resides or is established. The above stipulations shall leave intact the fact that parties may decide in joint consultation to have their disputes settled by means of mediation, binding advice or arbitration.
These General Terms and Conditions have been filed at the Registry of the Court in Groningen, Netherlands on March 21st 2017 under number 17.2.