Klemans Groep B.V.
Chamber of Commerce registration number: 37088981<2>ARTICLE 1: APPLICABILITY
These terms and conditions apply to all offers and to all agreements of purchase and sale that are concluded via the websites of Klemans Groep B.V., established in Veendam, hereinafter referred to as “Klemans Groep”. The buyer or the client will be referred to below as "the other party". If the following relates specifically to a situation in which the other party is a natural person who does practise a profession or operate a business, he/she shall be referred to as "the consumer".
Any conditions to the contrary will only form part of the agreement entered into between the parties if and insofar expressly agreed by both the parties in writing.In these terms and conditions, "in writing" is also understood to mean: by email, by fax or any other method of communication that in view of the latest technology and generally accepted practices can be considered an equivalent thereto.
The other party's acceptance and retention of a quotation or order confirmation, which refers to these terms and conditions, without comment will be regarded as the application thereof.
Any non-applicability of a stipulation or part thereof of these general terms and conditions will not affect the applicability of the other stipulations.
Agreements will only be binding after this has been confirmed by Klemans Groep in writing.
Amendments or additions to the general terms and conditions or otherwise amendments or additions to the agreement will only be binding after this has been confirmed by Klemans Groep in writing.
All Klemans Groep's offers, quotations, pricelists, delivery times and so on are without obligation unless they contain a period for acceptance. If a quotation or offer contains an offer without obligation and this is accepted by the other party, Klemans Groep will be entitled to withdraw the offer within 2 days of receiving the acceptance.
The prices used by Klemans Groep and the prices stated in Klemans Groep's offers, quotations, pricelists and on its website and suchlike are EXclusive of VAT and exclusive of any additional costs. These costs may comprise - but are not limited to - transport and shipping costs and expense claims from third the parties that have been engaged. This applies unless expressly stated otherwise on Klemans Groep's website or elsewhere in writing or if the parties have expressly agreed otherwise in writing.
Samples, brochures, drawings, models, representations of colours, images, measurements, weights and other descriptions displayed and/or supplied will be as accurate as possible but serve only as an indication. No rights may be derived from these, unless the parties have expressly agreed otherwise in writing.
If the government and/or trade organisations implement changes to wages, employment conditions, social insurances, taxes, import and other duties, exchange rates and suchlike between the date the agreement is entered and the agreement performance date, Klemans Groep will be entitled to charge on the increases to the other party. If between the above dates a new pricelist is published by Klemans Groep and/or its suppliers and this takes effect, Klemans Groep will be entitled to charge the other party the prices stated therein.
If and insofar the proper performance of the agreement so requires, Klemans Groep ewill be entitled to engage third the parties for its deliveries.
Specified periods within which the items must be delivered may not be regarded as deadlines, unless the parties have expressly agreed otherwise in writing. The maximum delivery period is 30 days, unless agreed otherwise. We will inform you if we are unable to deliver within 30 days, in which case you may dissolve the agreement or agree a new delivery period. In the event of dissolution, the amount already paid will be credited as soon as possible but within a maximum of 30 days.
In the case of delivery in consignments, each delivery or phase shall be regarded as a separate transaction and may be invoiced per transaction by Klemans Groep.
The risk in respect of the items delivered will transfer to the other party at the time of delivery.
The postage or transportation of items ordered will take place in a manner to be determined by Klemans Groep, but at the expense of the other party. This will apply unless the parties have expressly agreed otherwise in writing.
If it proves impossible to deliver the items to the other party, due to a cause within the control of the other party, Klemans Groep will retain the right to store the items ordered at the expense and risk of the other party. Klemans Groep will inform the other party in writing of the storage and will give the other party a reasonable period within which it must make it possible for Klemans Groep to deliver the items.
If the other party has still failed to fulfil its obligations after expiry of the reasonable period set by Klemans Groep, as specified in the previous paragraph of this Article, the other party will be in default by the mere expiry of 1 (one) month, calculated from the date of storage, and Klemans Groep will be entitled to dissolve the agreement, in part or in full, in writing and with immediate effect, without prior or further notice of default, without legal intervention and without the obligation to pay damages, costs and interests.
The above will not affect the other party's obligation to pay the agreed or stipulated or payable price, nor any possible storage and/or other costs.
Klemans Groep is entitled - in respect of the other party's compliance with financial obligations - to request payment in advance or security from the other party before effecting delivery.
The other party is obliged to check the items immediately upon receipt thereof. If the other party discovers visible faults, errors, deficiencies and/or defects, these must be recorded on the delivery note and/or prompting note and reported immediately to Klemans Groep and/or the other party must report these to Klemans Groep within 3 days of receipt of the items, followed immediately by confirmation thereof to Klemans Groep.
Other complaints must be reported to Klemans Groep in writing within 8 days of receipt of the items.
Without prejudice to the stipulations of paragraphs 1 and 2 of this Article, the stipulations of paragraph 8 of Article 7 will also be taken in consideration in respect of the agreement entered into with the consumer.
If the above complaints are not reported to Klemans Groep within the specified period, the items will be deemed to have been received in good condition.
Klemans Groep will deliver items ordered from stock in wholesale packaging. Slight deviations from specified sizes, weights, quantities, colours and suchlike will not be considered failures on the part of Klemans Groep.
No complaints can be validly made with respect to imperfections in natural products, unless these imperfections relate to the nature and the characteristics of the raw material(s) from which the product is made. This will be at the discretion of Klemans Groep.
Complaints will not serve to suspend the payment obligations of the other party.
Klemans Groep must be given the opportunity to investigate a complaint. If the item has to be returned for the purpose of the investigation, this will only take place at the expense and risk of Klemans Groep once this party has expressed its prior permission to that effect in writing.
In all cases, returns will be made in a manner to be determined by Klemans Groep and in the original packaging. Returns will be made at the expense and risk of the other party, unless Klemans Groep declares the complaint well-founded.
If after delivery the nature or composition of the items is changed, fully or partially adapted or processed, damaged or over-packaged, all rights to complain will lapse.
In the case of justified complaints, the damage will be settled pursuant to the stipulations of Article 7.
The above stipulations regarding complaints and returns do not apply with regard to items that cannot be returned on account of their nature, such as for example - but not limited to - due to hygiene reasons. This stipulation in any case includes adult lifestyle accessories.
Klemans Groep performs its duties as may be expected of a company in its industry, but it accepts no liability whatsoever for damage, including loss of dependency, personal injury, consequential damage, trading loss, loss of profits, and/or loss due to stagnation, resulting from acts or omissions on the part of Klemans Groep , its staff or third the parties it engages, except insofar as it concerns intent or wilful recklessness on its part, the part of its management board and/or the part of its managerial staff.
Without prejudice to the stipulations of the other paragraphs of this Article, Klemans Groep's liability - for whatever reason - will be limited to the net price of the items delivered.
Without prejudice to the stipulations of the previous paragraphs of this Article, Klemans Groep will not liable to pay damages amounting to more than the amount insured, insofar as the damage is covered by an insurance policy taken out by Klemans Groep.
Klemans Groep guarantees the usual normal quality and soundness of the item(s) delivered; the actual service life cannot be guaranteed.
If visible errors, deficiencies and/or defects appear in the items delivered that must have been present at the time of delivery, Klemans Groep undertakes - at its option - to repair or replace those items free of charge.
A. In all cases, the period within which Klemans Groep can be held liable to compensate damage is limited to 6 months, calculated from the time at which the debt for the damage is established. B. Notwithstanding subparagraph A of this paragraph, the applicable period for the consumer is a maximum of 1 (one) year.
Any guarantee provided by the manufacturer for items delivered by Klemans Groep will apply similarly between the parties.
Klemans Groep will observe the statutory warranty periods with regard to the agreement with the consumer.
The other party will lose its rights in respect of Klemans Groep, will be liable for all damage and will indemnify Klemans Groep from any claims by third the parties if and insofar as:
A. the aforementioned damage results from improper use and/or use conflicting with instructions and/or advice from Klemans Groep and/or improper storage of the items delivered by the other party;
B. the aforementioned damage results from errors, inaccuracies or incompleteness with respect to information, materials, information carriers and suchlike that have been provided and/or prescribed by the other party to Klemans Groep.
Payment must be made according to the manner specified on Klemans Groep's website.
Other payment methods are only permitted if the parties have expressly agreed this in writing.
Klemans Groep will retain the title to all items delivered and to be delivered until the time at which the other party has met its associated payment obligations in respect of Klemans Groep. The payment obligations comprise payment of the purchase price, increased by claims relating to activities carried out in connection with that delivery, as well as possible claims relating to compensation for failures on the part of the other party to fulfil its obligations.
If Klemans Groep invokes retention of title, the agreement entered into will be dissolved, without prejudice to Klemans Groep's right to claim compensation for damage and loss of profits and interest.
The other party is obliged to inform Klemans Groep immediately in writing if third the parties claim rights to items encumbered with retention of title pursuant to this Article.
Without prejudice to the stipulations of the other Articles of these terms and conditions, the agreement entered into between the other party and Klemans Groep will be dissolved without the need for legal intervention or any notice of default at the time when the other party is declared bankrupt, applies for temporary or permanent suspension of payments, is subject to a prejudgement attachment, is placed under guardianship or administration, or otherwise loses its power of disposition or legal capacity with respect to its assets or part thereof, unless the receiver or administrator acknowledges the obligations arising from the agreement as debts of the estate.
If fulfilment of that to which Klemans Groep is obliged pursuant to the agreement entered into with the other party is not possible and this is due to a non-attributable failure on the part of Klemans Groep, and/or on the part of third the parties or suppliers engaged for the performance of the agreement, or in the event of another serious reason on the part of Klemans Groep, Klemans Groep will be entitled to dissolve the agreement between the parties, or to suspend the fulfilment of its obligations in respect of the other party for a reasonable period to be determined by it. If the situation referred to above occurs when the agreement has been performed in part, the other party will be obliged to fulfil its obligations in respect of Klemans Groep up until that time.
Circumstances concerning a non-attributable failure will be understood to include: telecommunications and/or electricity network failures, wars, riots, mobilisations, internal and external civil unrest, government measures, strikes and lockouts by workers or threats thereof and similar circumstances; distortions of the exchanges rates that were current at the conclusion of the agreement; weather conditions, operational failures caused by fires, accidents or other incidents and natural phenomena, all regardless of whether the failure takes place at Klemans Groep, its suppliers or third the parties it engages for the performance of its obligations.
A. The other party waives all rights to dissolution of the agreement ex Article 6:265 of the Dutch Civil Code or other legal stipulations, unless this is precluded by mandatory stipulations. This is without prejudice to the right to cancel or terminate the agreement pursuant to this Article.
B. The stipulations of subparagraph A of this paragraph do not apply to the agreement with the consumer.
In the context of these general terms and conditions, cancellation is understood to mean: the termination of the agreement by one of the parties before performance of the agreement commences.
In the context of these general terms and conditions, termination is understood to mean: the termination of the agreement by one of the parties after performance of the agreement commences.
In the event the other party terminates or cancels the agreement, it will owe Klemans Groep a fee to be determined by Klemans Groep. The other party will be obliged to pay any costs and damages, as well as any loss of profits sustained by Klemans Groep . Klemans Groep will be entitled to set the costs, damages and loss of profit and - at its option and depending on the activities already performed or deliveries already made - to charge the other party 20 to 100% of the agreed price.
The other party will be liable for the consequences of the cancellation or termination in respect of third the parties and will indemnify Klemans Groep in that regard.
Amounts already paid by the other party will not be refunded.
The agreement entered into between Klemans Groep and the other party is governed exclusively by Dutch law. Disputes arising from this agreement will also be settled in accordance with Dutch law.
Notwithstanding the stipulations of paragraph 1 of this Article, the property law consequences of a retention of title vested in items to be exported will be governed by the laws of the country or state for which the items are destined if the legal system of that country or state is more favourable for Klemans Groep.
Any disputes will be settled by the competent Dutch court, provided that Klemans Groep is authorised to bring a case before the competent court in the place where Klemans Groep is established, unless the Sub-district Court has jurisdiction for that case.
With regard to disputes with the consumer, the consumer may communicate its wish to have the dispute settled by the court deemed competent by the law within 1 (one) month after Klemans Groep has notified the consumer thereof.
With respect to disputes that arise from the agreement entered into with another party that is established outside the Netherlands, Klemans Groep will be legally entitled to act in accordance with the stipulations of paragraph 3 of this Article or - at its option - bring the disputes before the competent court in the country or state in which the other party is established.