Conditions of Sale
The PDF version of the General Conditions of Sale can be downloaded here.
General Terms of Delivery for the technology branches
(Federatie van Technologiebranches)
Issued by FHI, federation of technology branches, located in Amersfoort, further called the Vereniging, filed at Utrecht District Court on December 22nd 1998, number 429 /1998, and also at the Chamber of Commerce and Producers for Eemland in Amersfoort on November 20th 1998.
All copyrights on these Conditions are reserved.
GENERAL CONDITIONS FOR THE TECHNOLOGY BRANCHES
The Federation of Technology Branches (FHI) is the umbrella organisation for all the companies the Netherlands offering and utilising technology in industry and the healthcare sector. FHI has divided these companies into four branches:
• Industrial Automation (IA)
• Industrial Electronics (IE)
• Laboratory Technology (LT)
• Medical Technology (MT)
Within FHI there are a number of other bodies that collaborate with the four branches. The Development Club (the Association of Independent Product Development Companies) and the VLW (the Association of Netherlands Suppliers of Weighing Instruments) are the largest of these collaborative FHI bodies with their own association status.
FHI promotes the collective and individual interests of approximately 800 companies affiliated to it. These companies employ around 33,000 people, the majority of whom can be described as being technical service providers’. These companies have a joint annual turnover of 5.8 billion Euros. FHI’s members are mainly business-oriented companies that offer technological services and
products to both the domestic and foreign markets.
FHI supports its members’ technology and product marketing in a variety of ways. This support is mainly at branch level and includes the organisation of specialised fairs, specific technology marketing activities, incidental and periodic conferences, seminars and technology days.
Over the years FHI has grown considerably. National and European government deregulation and their increasing hands-off approach has forced the business world to expand their capacity to regulate themselves. The legal frameworks laid down by government necessitate a joint approach from the business community. This is illustrated by the following examples, ISO, CE marking, closing the Disablement Insurance Act gap, PEMBA, regulations governing leave and, of course,
the packaging covenant. FHI is responsible for co-ordinating this joint approach and keeping its members informed about it. This requires a great deal of formal and informal discussion with Ministries and other organisations.
CONTENT
A. AGREEMENTS ABOUT SALE AND DELIVERY
1. General 5
2. Offers 5
3. Realisation and content of an agreement 6
4. Prices 7
5. Risk 8
6. Delivery and delivery time 8
7. Transport and packing 9
8. Packaging 9
9. Force majeure (non-liable failing) 10
10. Guarantee / Service 11
11. Right of retention 12
12. Liability 12
13. Claims 14
14. Permits etc. 14
15. Intellectual ownership rights 15
16. Ownership reservation 15
17. Payment 16
18. Delay: interest and costs 17
19. Ending an agreement 17
20. Cancellation by other party 18
21. Changes in an agreement 18
22. Title of the clauses 18
23. Appropriate law: disputes 18
24. Validity 18
B. SPECIAL CONDITIONS WITH REFERENCE TOT ASSEMBLY / INSTALLATION WORK
25. General 20
26. Delivery 20
27. Scope of the activities 21
28. Extra/less work 22
29. Guarantee / liability 22
30. Claims 23
31. Payment 23
C. SPECIAL CONDITIONS TO SOFTWARE, ADVICE.
32. General 24
33. Development of specific software 25
34. Standard Package 27
35. Advice 29
A. AGREEMENTS ABOUT SALE AND DELIVERY.
1. General.
1.1 Definitions:
- Conditions (written with a capital C): the General Terms and Conditions in question;
- Kreisler Import bv and/or Kreisler Electronics bvba (hereunder referred to as Kreisler): member of a branch organisation affiliated to
the Vereniging who or on who’s behalf these Conditions have been declared as
applicable and also those who or on who’s behalf these conditions have been or are
applicable in a clearly recognisable and correct manner and to their representatives,
proxy’s and legal successors;
- Other Party (written with a capital O and a capital P): each natural person, legal body,
partnership, limited partnership or other entity that enters into or has entered into an
agreement with Kreisler, or to who an offer or proposal is or has been made or
extended by or on behalf of Kreisler, or to who or by order of who a delivery is or has
been made by or on behalf of Kreisler, or by order of or for the benefit of who one or
more services is or has been performed by or on behalf of a supplier.
1.2 These Conditions cover offers made, quotations produced, agreements entered into and
the execution thereof, and deliveries and services performed by or on behalf of the
Kreisler. Departures from these Conditions will only be of force if agreed in writing by the
Kreisler and by the Other Party.
1.3 The application of general terms and conditions other than these Conditions is expressly
forbidden, regardless of how such alternative general terms and conditions might be
called and whatever form they might have, including the purchasing conditions and other
general terms and conditions of the Other Party or those that might be employed by the
Other Party and the suitability of any such alternative general terms and conditions is
expressly rejected by Kreisler. The acceptance of an offer or quotation made by or on
behalf of Kreisler, entering into an agreement with Kreisler, the acceptance of a
delivery from or on behalf of Kreisler, or the acceptance of services performed by or
on behalf of Kreisler means that the Other Party accepts unconditionally that these
Conditions are of application and that the application of other general terms and
conditions referred to in this Clause is out of the question, and for so far as is relevant the
Other Party distances itself from the application of other general terms and conditions.
2. Offers.
2.1 Each offer or quotation made by or on behalf of Kreisler is made without obligation
and does not bind Kreisler except when and for so far as Kreisler has explicitly
stated otherwise in writing or when the parties might have agreed otherwise in writing.
2.2 Price lists, brochures, catalogues, folders and other information provided by or on behalf
of Kreisler are prepared as carefully as possible but they nevertheless bind
Kreisler only when and for so far as they have been explicitly confirmed by Kreisler in
writing. Kreisler is not obliged to provide detailed information unless this has been
agreed otherwise in writing.
2.3 All brochures, catalogues, price lists and folders provided in connection with an offer or
quotation and all associated (technical) information provided in the form of designs,
drawings or other illustrations, models, samples, tables, schedules, etc, and all other data
and information provided remains explicitly the industrial and intellectual property of
Kreisler. The Other Party is expressly forbidden without Kreisler’s permission
previously given in writing from copying any material, data or information as meant in the
previous sentence either wholly or partially and/or from making it known to third parties in
whatever way and/or from allowing it to be used by third parties and/or from selling it or
from placing it at anybody’s disposal. The use of this material, data and information
remains strictly limited to use by the Other Party within the framework of the order given
to Kreisler. All the material, data and information meant here must be returned
immediately to Kreisler at the first request from Kreisler or if, within the time limit
of the offer, the Other Party does not enter into an agreement or if the Other party cancels
this agreement.
2.4 If no agreement is entered into then Kreisler is entitled to pass on the costs made
when preparing an offer or quotation to the Other Party.
2.5 Standard documentation such as factory drawings, descriptions, instructions and test
certificates will be provided free of charge unless Kreisler indicates otherwise. The
Other Party will be charged for extra copies of such standard documents and for other
documents, which are not standard.
2.6 Any prices specified are only valid for the quantities offered.
3. Realisation and content of an agreement.
3.1 An agreement between Kreisler and the Other Party is realised at the moment that
Kreisler confirms in writing the acceptance of an assignment or order from the Other
Party; the scope and content of the agreement follows on from the written confirmation of
Kreisler.
3.2 If an offer or quotation, in the light of the provisions of Clause 2.1, is not without obligation
and a binding time period for the offer has been set then the agreement is realised at the
moment that the offer or quotation is accepted within the time limit by the Other Party; in
such a case the confirmation of the assignment, order or binding offer is deemed to
correctly and completely represent the agreement.
3.3 An agreement binds Kreisler only when it has been entered into and when the written
confirmation meant in Clause 3.1 has been signed by one or more persons who are
authorised to commit Kreisler in such a manner and any agreements or additions
and/or changes to them or in them and agreements, promises, etc., drawn-up or made by
an employee or employees of Kreisler or by a representative, agent or other
intermediary or by one or more other people who are not authorised to commit
Kreisler in such a manner, whether or not these are made in writing, are not binding on
Kreisler.
3.4 Any changes and/or partial cancellation or complete cancellation of an assignment or
order by or on the request of the Other Party can only take place with the permission of
Kreisler previously given in writing and on condition that activities already performed
by Kreisler will be paid for, in full, by the Other Party; in the case of a change and/or
partial cancellation requested by the Other Party, Kreisler is entitled to pass on any
related (extra) costs to the Other Party and to redetermine the delivery time.
3.5 For activities or assignments where, because of their nature and size, no quotation or
order confirmation is sent, the agreement will be realised at the moment Kreisler or
someone on behalf of Kreisler actually begins to carry out the agreement and, in such
cases, the invoice will be considered as the order confirmation and at the same time is
deemed to correctly and completely represent the agreement.
3.6 An agreement with Kreisler is entered into under the condition that Kreisler and
other contract partners of Kreisler fulfil their obligations on time and in the correct
manner.
3.7 When entering into an agreement or after that and before beginning with the execution of
the agreement on his part or continuing with the execution of the agreement Kreisler
is entitled to demand the provision of sufficient certainty from the Other Party regarding
timely settlement by the Other Party of his payment obligations and other obligations.
3.8 Kreisler is authorised to make use of third parties for the execution of the agreement;
the costs involved will be passed on to the Other Party in line with the quotations
provided.
4. Prices.
4.1 Except when and for so far as binding prices apply all price quotations are without
obligation.
4.2 Except when otherwise explicitly notified in writing prices are:
- based on purchase prices, wage rates, wage costs, social security and government
costs, transport costs, insurance premiums and other costs prevailing on the date of
offer or quotation or (if no offer or quotation is made) the date of the order;
- based on ex-works or ex-warehouse delivery from Kreisler;
- exclusive of VAT, import duties and other taxes, levies and duties;
- exclusive of the costs of packaging, loading and unloading, transport and insurance;
and
- exclusive of the costs of assembly, installation and commissioning unless otherwise
explicitly stated, in which case the costs named here will be separately specified.
4.3 Unless specifically expressed otherwise prices stated or agreed upon before
1st January 1999 are in Dutch guilders (NLG) and prices stated or agreed upon on or after
1st January 1999 will be in Euros (EUR).
4.4 In every case prices are stated or agreed upon under the condition that changes in
exchange rates will be passed on if the official exchange rate at the moment of delivery
deviates by more than 2 % from the exchange rate on the date when the offer or quotation
was made, the latter exchange rate parity being considered as 100.
4.5 If there is an increase in one or more of the factors determining the cost price then the
Kreisler is entitled to increase the order price accordingly, with due observance of
existing applicable legal requirements, on the understanding that any future price
increases which Kreisler is aware of on the date of the order confirmation should be
specified on this order confirmation.
5 Risk.
5.1 The risk with regard to the goods sold and/or delivered by or in the name of Kreisler
to the Other Party is transferred to the Other Party: for goods supplied out of stock, this
occurs at the moment these goods are segregated for the benefit of the Other Party; and
for other goods, this occurs at the moment the goods are loaded for transportation to the
Other Party or to a place indicated by the Other Party, except when and for so far as it
might be otherwise agreed in writing.
5.2 Irrespective of what might otherwise be agreed with regard to the risk, any loading and
unloading, transport, assembly, installation and commissioning of the goods will at all
times be at the risk of the Other Party.
6. Delivery and delivery time.
6.1 Except when and for so far as it has otherwise been agreed in writing and without
prejudice to the provisions in Clause 4.2 of these Conditions, deliveries are made on a
carriage paid basis to the Other Party or to another place specified timely by the Other
Party. For orders or deliveries under a specified amount, Kreisler is entitled to pass on
an amount covering the administrative costs to the Other Party.
6.2 Except when and for so far as it has otherwise been agreed in writing and without
prejudice to the provisions in Clause 5 about the transfer of risk, the moment of delivery is
the moment that the goods are unloaded or discharged at the place where they must be
delivered (the actual transfer); this also holds good if Kreisler must assemble, install
and/or commission the goods.
6.3 The Other Party must report any shortages, defects and damage, in writing, directly to the
Kreisler within 24 hours of the delivery and if nothing is reported then the goods will be
regarded as having reached the Other Party in good condition, complete and without
damage.
6.4 Kreisler is entitled to make partial deliveries, which can be invoiced separately, and,
when this occurs, the Other Party is obliged to pay these separate invoices in accordance
with the provisions specified in Clause 17 of these Conditions.
6.5 Except when and for so far as it has otherwise been agreed in writing, the delivery times
specified by or on behalf of Kreisler in an offer or quotation are not intended to have a
fatal effect, which means, amongst other things, that when a delivery is late the Other
Party must explicitly notify Kreisler in writing before Kreisler can be held in
default.
6.6 Kreisler is obliged to observe the specified delivery time or delivery period as much
as possible, yet will never be liable if they are exceeded and when they are exceeded the
Kreisler is not obliged to provide any compensation for damages. Exceeding a delivery
time or delivery term does not give the Other Party the right to terminate or to dissolve the
agreement or to refuse to purchase goods. In cases where a delivery time or term is
exceeded excessively the parties must consult with each other.
6.7 If goods are not purchased by the Other Party within the delivery time or period, or if the
Other Party does not observe an agreed call off period then Kreisler is entitled to
invoice the Other Party for the goods in question and, furthermore, Kreisler is entitled
to store these goods at its own discretion but wholly at the cost and risk of the Other
Party. In the case where the Other Party does not purchase or call off within the agreed
period Kreisler, according to his own choice, can demand fulfilment by the Other
Party or can dissolve the agreement, without prejudice to the right of Kreisler, in
either case, to claim damages.
7. Transport and packing.
7.1 Unless indicated in writing by the Other Party to Kreisler, the manner of packing,
transport, shipment etc, of goods is a matter completely at the discretion of Kreisler
and will be determined with the care which reasonably can be expected from the
Kreisler, this without prejudice to what is specified about the transport risk in Clause 5.2
of these Conditions.
7.2 Any specific wishes the Other Party may have with regard to packing and/or transport,
including relocation within the company or company terrain, will only be performed if the
Other Party pays the costs involved. Furthermore, Kreisler is entitled not to honour
specific wishes from the Other Party with respect to packing and/or transport which have
not previously been explicitly agreed.
7.3 If the invoiced value of the goods delivered is less than an amount to be specified by the
Kreisler, then Kreisler is entitled to pass on any administrative costs.
8. Packaging.
8.1 Only durable packaging, provided it is in a good and usable condition, can be taken back
by Kreisler against cost price and only on the condition that this packaging is
specified separately at cost price either on the delivery documents or on the invoice.
8.2 If the durable packaging meant in Article 8.1 is returned clearly in a poorer state then
when it was used for the loading of the shipment to the Other Party, then Kreisler is
entitled to request compensation from the Other Party. The Other Party is not entitled
unilaterally to deduct the value of the packaging or any other amount relevant to the
packaging from the amount owed to Kreisler.
9. Force majeure (non-liable failing).
9.1 If Kreisler, as a result of force majeure, is prevented from fulfilling any of his
obligations to the Other Party and in the judgement of Kreisler the force majeure is of
a permanent or long-lasting nature, then the parties can come to a settlement regarding
the dissolution of the agreement in accordance with the rule of law and any
consequences thereof.
9.2 If Kreisler, as a result of force majeure, is prevented from fulfilling any of his
obligations to the Other Party and in the judgement of Kreisler the force majeure will
be of a temporary or transitory nature, then Kreisler is entitled to postpone the
execution of the agreement until the circumstance, cause or event causing the force
majeure situation no longer arises.
9.3 Considered as ”force majeure” are each circumstance, cause or event, wherever it is
occurring, appearing or arising which temporarily or permanently prevents the correct,
complete and timely fulfilment of any obligation of Kreisler or makes it impossible or
unreasonably problematic, and each circumstance, cause or event which Kreisler, in
all fairness, cannot be expected to prevent or which wholly or partially falls outside the
sphere of influence of Kreisler or on which Kreisler can exercise no influence.
The following, amongst other factors, are considered as circumstances, causes or events
resulting in force majeure: fire, explosion, lightning strike, ice break-up, low water, high
water, tidal wave, spring tide, flood, earthquake, natural disasters; storm, tornado,
cyclone, snow, frost and other weather conditions; strikes, work stoppages, excessive
(sickness) absenteeism of personnel, labour unrest, lock-outs, boycotts; war (declared or
not), mobilisation, siege, besieging, blockade, molestation; riots, revolution, social unrest;
governmental actions and/or regulations which prevent, delay or otherwise hinder the
fulfilment of obligations; lack of transport resources; unnavigability or unusability of any
eligible transportation routes or means of transport; disturbances or interruptions in the
provision, delivery or availability of energy; disturbances or interruptions in or of the
functioning of any public utility; disturbances or interruptions or ending of the supply of
raw materials, semi-finished and/or finished; disturbances or delay in or of, or
interruptions or ending of the supply of parts, spare-parts and other articles; each
circumstance, cause or event that is the result of or is associated with the so-called
millennium problem; non-fulfilment of obligations by a debtor or contract partner of the
Kreisler (including the non-fulfilment of obligations by one or more third parties);
technical disturbances and/or faults, delays, disturbances or interruptions to or with the
repair of machines, material, equipment, tools and/or instruments; serious illness and
illnesses of an epidemic character.
9.4 The results of the circumstances, causes or events meant in Clause 9.3 are also
considered as ”force majeure”.
9.5 If Kreisler, as a result of force majeure, is prevented from fulfilling his obligations with
regard to one or more of his customers or buyers but not his obligations with respect to all
his customers or buyers then Kreisler is entitled to decide himself which of the
obligations will be fulfilled and for which customers or buyers as well as the order in
which they will be fulfilled.
9.6 Kreisler is entitled to demand payment for all activities performed by or on behalf of
Kreisler in the execution of the agreement with the Other Party before the force
majeure circumstance, cause or event appeared or emerged.
10. Guarantee/Service.
10.1 With due observance to the provisions specified elsewhere in these Conditions the
Kreisler guarantees the quality of the materials used and their promised characteristics
as well as the correct working of the goods provided by Kreisler. For new products
this guarantee is valid for a period of twelve (12) months after delivery (including any
”viewing period”), unless otherwise agreed in writing. A guarantee for goods purchased
elsewhere by Kreisler is only given for and so far as it is provided by the original
manufacturer(s). For products that are not new a guarantee is only valid for and so far as
this has been explicitly agreed; with such a guarantee the provisions of these General
Conditions apply except when and for so far as departures to them have been agreed in
writing.
10.1.1 Products supplied from mainland China P.R. have a limited warranty. These products
are offered with special clauses which can deviate from all other conditions mentioned herein.
10.2 Faults in any goods supplied which fall under the guarantee will, exclusively at the
discretion of Kreisler, be rectified or the goods will be replaced if the faults, in the
opinion of Kreisler and/or manufacturer, are attributable to construction faults or
faults in or any shortcomings of the materials used as a result of which the goods are
unusable by the Other Party for the purpose for which they are can reasonably be thought
of as intended.
10.3. In principle, guarantee work will be performed within the business of Kreisler (for
example, by the service department) and during normal working hours. Activities
associated with guarantees will only be performed outside normal working hours if a
separate service contract has been entered into and only when and for so far as this is
specified in this service contract.
10.4 Kreisler is entitled to allow guarantee activities to be performed outside his own
business if this, in the opinion of Kreisler, is in the best interest of these activities or if
the performance of such activities at the business of Kreisler in all reasonableness is
not possible nor desirable.
10.5 Goods eligible for guarantee work must be sent carriage-paid to Kreisler. If the
guarantee work is to be performed outside his own company then Kreisler is entitled
to pass on the connected travel costs and expenses to the Other Party as well as any
(special) costs of transport, packing and insurance and the costs of any testing equipment
and materials used.
10.6 If, in the opinion of Kreisler, the goods tendered for rectification or repair exhibit no
faults then all costs made will be passed on to the Other Party, also during the period
under guarantee.
10.7 All guarantee agreements lapse if the Other Party itself makes changes and/or repairs to
the product supplied or allows them to be made, or if the product supplied has not been or
is not being used or treated exactly according to the supplied or applicable
(manufacturers) directives or the user instructions, or is being used or treated
injudiciously in any other way, or if a software change has been made in or with regard to
the product supplied by a party other than Kreisler, or if the product supplied has
been or is being used or applied for purposes other than for which it is intended, or if the
product supplied has been or is being used in a way which Kreisler in all
reasonableness could not have expected.
10.8 Faults resulting from or partly resulting from or connected with the so called millennium
problem with regard to computers, semi-conductor products and software in the broadest
sense, are not covered by the guarantee and with respect to such faults and their
possible consequences no guarantee agreement exists.
10.9 No guarantee is provided for consumables.
10.10 If the Other Party does not fulfil one or more of his obligations then Kreisler is
released from his guarantee obligations.
10.11 Satisfying the guarantee obligation is regarded as the only and complete compensation.
11. Right of retention.
11.1 If and for so long as the Other Party has not satisfied his obligations towards Kreisler
then Kreisler has the right to retain all goods in his possession which have come from
the Other Party or have come on behalf of the Other Party, no matter the origin or reason.
11.2 Kreisler is obliged to administer the goods meant in Clause 11.1 or to allow them to
be administered in accordance with commercial practice but the Other Party has no right
to press for damages or compensation in the case when the goods have completely or
partially perished or been lost and/or been damaged when this is not the fault of the
Kreisler, and, furthermore, the risk associated with these goods remains with the Other
Party.
12. Liability.
12.1 Except when and in as far as something else might otherwise ensue from the provisions
of imperative law concerning (product) liability, Kreisler is not obliged to compensate
for damage, of whatever nature, to any movable or immovable good or to any person,
including any loss of profits, at the Other party or any third party, this damage being
caused directly or indirectly by or connected with any object or good supplied by or on
behalf of Kreisler or being caused directly or indirectly by or being connected with
any use or any application or operation of such an object or good or with the storage or
keeping thereof, or with the assembly, installation or commissioning of such an object or
good, and the Other Party explicitly indemnifies Kreisler against claims and demands
which are based on such damage or are connected with it. Bearing in mind what is
specified elsewhere in this Clause, Kreisler, in every case, is not liable for damage or
loss directly or indirectly caused by:
- injudicious use of the product supplied or its use for a purpose other than what it
reasonably could be considered suitable for or its use for a purpose other than what,
to objective standards, it is suitable for or its use for any other purpose than what the
Kreisler reasonably could have imagined that it should be used for;
- careless conduct by the Other Party, of the personnel of the Other Party or anybody
brought in the Other Party, or any other person on the part of the Other Party;
- infringement of any patent, usage model, brand, origin indication, model right,
copyright or neighbouring right, right on a semiconductor product or the topography
thereof, right on a database or other collection of data, or any other industrial or
intellectual ownership rights or any other exclusive right, or infringement or violation of
a licence under any such a right, which is the direct or indirect result of the use and/or
application and/or publication or replication of data provided by or on behalf of the
Other Party such as descriptions, drawings, models, designs, etc.
12.2 If Kreisler provides a helping hand during the assembly and/or commissioning and/or
installation of the goods without this being explicitly mentioned in the assignment then
this occurs wholly for the risk of the Other Party.
12.3 Except in the case of intentional or flagrant damage on the part of Kreisler, the
Kreisler is not liable for any damage as meant in Clause 12.1 which is caused by or is the
result of any service performed by or on behalf of Kreisler.
12.4 With respect to any advice provided, Kreisler is only liable for normally foreseeable
and avoidable shortcomings in the advice, on the understanding that this liability never
exceeds the amount agreed upon and received for the advice.
12.5 Any liability on the part of Kreisler is at all times limited to directly caused damage
and is at all times limited to the amount, in each case, made good by the liability insurer of
Kreisler; if necessary, and at the request of the Other Party, Kreisler will provide
information about the amount insured. If Kreisler has no liability insurance then any
liability on the part of Kreisler is at all times limited to the net amount invoiced for the
task or circumstance in question.
12.6 Settlement of the prevailing guarantee obligations and/or the pay out by Kreisler’s
insurer or payment by Kreisler (with due observance of the maximum amount meant
in Clause 12.5) of the assessed damage is to be regarded as the only and complete
compensation. For the rest the Other Party indemnifies Kreisler explicitly and
completely.
12.7 Without prejudice to the provisions otherwise specified in this Clause, every claim for
damages lapses one year after the damage has manifested itself or has been discovered
or has been recognised or reasonably could have been expected to have been discovered
or recognised, and, in all cases, three years after delivery.
12.8 With respect to goods for which Kreisler has involved third parties, the applicable
(contract and/or guarantee) provisions applying to the respective transaction are also
valid for the Other Party if and in so as far as Kreisler wants to make use of them.
13. Claims.
13.1 Without prejudice to the provisions in Clause 6.3 of these Conditions, any claims can only
be handled if they are received in writing by Kreisler within eight (8) days of the
delivery. For hidden faults, claims are only possible within the guarantee period.
13.2 Contrary to the provisions in Clause 13.1 any claims with regard to goods for which a
testing or inspection takes place must be made immediately on the date of testing or
inspection and at the place where this testing or inspection occurs and, after that,
confirmed at once to Kreisler in writing.
13.3 Claims can only be handled when the nature and grounds for the complaints are
accurately stated.
13.4 Claims regarding invoices must be lodged in writing with Kreisler within eight (8) days
of the date of the invoice.
13.5 If within the applicable time period no claim is made or no claim is made in the required
manner then the delivery will be considered as completely satisfying the agreement and
to be unconditionally accepted and approved by the Other Party; an invoice against which
no claim has been lodged in the required manner within the period of eight days specified
in Clause 13.4 will be regarded as having been unconditionally accepted and approved by
the Other Party.
13.6. If a claim with regard to goods supplied by Kreisler is found to be legitimate then the
Kreisler is only obliged to replace or repair the unsound goods, the Other Party having no
additional right to any other compensation.
13.7 Lodging a claim never discharges the Other Party from his payment obligations towards
Kreisler.
13.8 Returning the product supplied or any part thereof, for whatever reason, can only take
place after the previous explicit written approval and with the sending instructions of the
Kreisler.
14. Permits etc.
14.1 The Other party is responsible for ensuring that all permits, concessions, licences,
consents and so forth that might be necessary for the delivery by Kreisler of the
goods sold or for Kreisler to fulfil his obligations, are obtained on time and in the
correct form; the costs associated with obtaining such permits, concessions, licences,
consents and so forth are to be born by the Other Party.
14.1.1 Kreisler fully complies with all European and U.S. Export regulations, however, the
Other Party is responsible for complying with these licenses. Please check www.export.gov
for the latest amendments.
14.2 The absence of any permits, concessions, licences, consents and so forth as meant in
Clause 14.1 will be considered as an accountable failing (failure) on the part of the Other
Party and the Other Party will not be released from any of his commitments towards the
Kreisler nor can it be a reason for the postponement of the fulfilment of any obligation the
Other Party has towards Kreisler.
14.3 The Other Party is liable for all damage which directly or indirectly may be caused by the
absence of any permits, concessions, licences, consents and so forth as meant in Clause
14.1 and the Other Party indemnifies Kreisler against claims and demands connected
with such damage.
15. Intellectual ownership rights.
15.1 The Other Party will employ the software (in its widest sense), peripheral equipment,
technical data, wiring and/or work plans, user and/or operating instructions, drawings and
all other essential documentation and other data and information supplied by or on behalf
of Kreisler only for its own (internal) use and will not in any way pass it on or sell or
make it available to third parties nor allow any third party to use it.
15.2 If in the unhoped for event that that a good sold by Kreisler to the Other Party in The
Netherlands infringes an industrial or intellectual ownership right of a third party and the
Other Party is held liable then the Other Party is obliged at once to inform Kreisler in
writing of the situation and Kreisler can then choose either to procure the right to be
able to use the good, or to provide a replacement good which does not infringe the right,
or, once the Other Party has returned the good, refund the purchase price to the Other
party after subtraction of reasonable compensation to cover the period when the good
was available to the Other Party. With regard to infringements of industrial and intellectual
property rights outside The Netherlands the Other Party can make no claim or demand
whatsoever against Kreisler.
15.3 Kreisler cannot be held liable in any way with regard to the infringement of any
industrial or intellectual property right or any other exclusive right which is the result of
any change in or to a good sold or supplied by or on behalf of Kreisler or in the use or
application of such a good which is different to that which Kreisler could have
expected or assumed, or which is the result of its integration, use or application in
combination with other goods not sold or supplied by or on behalf of Kreisler, or
which is the result of a software amendment not made by Kreisler.
16. Ownership reservation.
16.1 Without prejudice to the provisions in Clause 5. of these Conditions regarding the risk and
the transfer thereof, all the goods supplied by or on behalf of Kreisler remain the
property of Kreisler until the moment that the debt owed by the Other Party to the
Kreisler has been settled in full, this debt being the amount that the Other Party has owed
Kreisler since the realisation of the agreement inclusive of all interest and costs. (In
the case of an account relationship the ownership of the goods supplied remains with the
Kreisler until the moment that the Other Party settles his account).
1
16.2 For so long as the ownership of the goods supplied by or on behalf of Kreisler
remains, according to the provisions in Clause 16.1, with Kreisler, the Other Party is
obliged to hold these goods separately from other goods in such a way that they can
easily and clearly be identified as the goods of Kreisler.
16.3 In the case of non-payment by the Other Party of any amount due to Kreisler and,
furthermore, when the agreement is ended, Kreisler will be entitled to demand the
return of any goods for which ownership reservation applies and to take the measures
associated with this, taking into account any payments already made for the goods, this
without prejudice to the right of Kreisler to demand compensation for possible loss or
damage. In the case of non-payment or termination of an agreement each claim which the
Kreisler has against the Other Party becomes immediately due.
16.4 At the first demand from Kreisler the Other Party must authorise the immediate return
of the goods which have not yet been fully paid for where ever these may be.
16.5 The Other Party is entitled to sell or to use goods on which there is an ownership
reservation in favour of Kreisler within the framework of normal business operations;
however, no right of security can be bestowed on these goods, while, with regard to these
goods, the Other Party must not perform any actions or allow any actions to be performed
which result in these goods becoming a part or element of one or more other goods.
When goods with an ownership reservation still in favour of Kreisler are sold on, the
Other Party is obliged to reserve ownership for himself and at the first request from the
Kreisler to cede to Kreisler all demands against the debtor of the Other Party, up to
the amount that the Other Party owes.
17. Payment.
17.1 Unless agreed otherwise payment, net cash, must be made on delivery or within thirty (30)
days of the invoice date via a deposit or funds transfer into the bank or giro account
indicated by Kreisler. In the case of assembly or installation work, payment must be
made within thirty (30) days of the date on which the assembly or installation work started
or, if the (commencement of the) assembly or installation work is delayed through no fault
of Kreisler, within thirty (30) days of the date on which the assembly or installation
work, without the delay, should have begun, with the proviso that if Kreisler has
demanded payment in instalments, in accordance with the provisions of Clause 31. of
these Conditions, then payment will be made in the appropriate manner. Kreisler is
entitled to grant a cash discount or payment reduction, which will be notified in advance.
The date on Kreisler’s bank or giro statement when the payment is recorded as
received applies as the date on which the payment has occurred.
17.2 Each payment by the Other Party will be used first for the settlement of any interest due
and for any collection and administration costs and, after that, for the settlement of any
open claims in order of age beginning with the oldest.
18. Delay; interest and costs.
18.1 The Other Party will be liable for ensuring that a payment or the settlement of any other
obligation occurs on time without the need for a reminder, summons or in default
declaration.
18.2 If Kreisler does not receive a payment due from the Other Party on time then,
beginning from the day on which the payment should have been made, Kreisler will
automatically charge the Other Party interest at a rate of one and a half (1½ %) per
month, without prejudice to any further rights Kreisler has; when calculating the
interest owed, months started but not completed will count as whole months. This socalled
delay interest rate of 1½ % per month is a minimum rate and if this rate, when
calculated on a yearly basis, is at any time less than 5% more than the officially applicable
interest rate in The Netherlands then it will be automatically increased, so that, on a
yearly basis, it is 5% higher than the official interest rate.
18.3 All the legal and extra-judicial costs incurred by Kreisler including the costs incurred
by Kreisler for legal aid and legal advice are to be borne by the Other Party. The
extra-judicial collection costs amount to 15% of the amount to which the Other Party is
indebted inclusive of any interest due, without prejudice to the right of Kreisler to
claim damages from the Other Party for the actual collection costs made if these are more
then the 15% specified.
19. Ending an agreement.
19.1 In the case of non-observance by the Other Party Kreisler will be entitled to terminate
and/or dissolve the agreement without judicial intervention and without prejudice to the
right of Kreisler to claim damages, to make use of the rights resulting from ownership
retention and to take other (legal) steps, and without prejudice to the right of Kreisler
to demand fulfilment (with compensation) of the agreement instead of its termination.
19.2 Kreisler will terminate the agreement with the Other Party with immediate effect if:
a. the Other Party is declared bankrupt, goes into administration, presents a request for
suspension of payment, or if the Other Party (temporarily or definitely) is granted a
suspension of payment or if there is a seizure of the total assets of the other Party or a
part thereof;
b. the Other Party, when this is a natural person, dies or is made a ward or if the
merchandise of the Other Party is put under administration;
c. if the Other Party, when this is a legal person, goes into liquidation or if a claim for the
dissolution of the Other Party is made or a dissolution decision with respect to the
Other Party has been or is taken.
19.3 If an agreement according to the provisions of this Clause is terminated or dissolved then
the amount that the Other party owes to Kreisler at the moment of termination or
dissolution remains as the full debt and the Other Party will be liable to pay interest and
costs according to the provisions of these Conditions, without prejudice to the right of the
Kreisler to demand damages or any other rights due to Kreisler.
20. Cancellation by Other Party.
20.1 The Other Party has the right to annul the order or agreement in the following cases:
- if Kreisler after exceeding the delivery time again exceeds a new delivery time
agreed by both parties without any justifiable grounds, provided that the Other Party
has declared in writing before agreeing to the new term of delivery that he will refuse
acceptance if the new delivery term is exceeded; and
- if Kreisler within a reasonable period of time cannot fulfil his delivery obligations
and has made this known to the Other Party.
Cancellation as meant in this Clause will never result in the Other Party being
compensated for any damages
21. Changes in an agreement.
21.1 Changes to an agreement are only valid if they are made in writing and where both parties
have consented to the change(s).
22. Titles of the Clauses.
22.1 The titles of the Clauses of these Conditions are intended exclusively to simplify the
construction and organisation of these Conditions and they have no other significance; in
particular these titles cannot be used for any interpretation of these Conditions.
23. Appropriate law; disputes.
23.1 The Dutch Law is applicable to all offers, agreements, deliveries and services produced or
brought out, entered into, performed or executed by or on behalf of Kreisler, with the
exception of the applicability of the treaty of the United Nations concerning international
trade agreements relating to movable goods (Vienna Trade Treaty).
23.2 All disputes also including those which are only considered as such by one party,
resulting from or connected with an agreement to which these Conditions are applicable
or the execution thereof and which cannot be solved amicably will be settled in the first
instance by the District Court of the district in which Kreisler is located, with the
proviso that if a particular judge is imperatively appointed as competent judge then the
dispute will be decided in the first instance by the judge so appointed, one way or the
other without prejudice to the right of Kreisler to seizure or from taking other
provisional measures at the place(s) and before the legal bodies that Kreisler wishes.
23.3 The provisions of Clause 23.2 leave intact the right of Kreisler to bring the dispute
before a judge qualified according to the normal competency rules or to obtain a
settlement by means of arbitration or binding advice.
24. Validity.
24.1 If any provision in these Conditions is not completely valid or only partially valid and/or not
enforceable as a result of any legal directive, judicial judgement or any directive,
decision, recommendation or measure from any local, regional, national or supranational
authority or body or otherwise then this will have no effect on the validity of the other
provisions in these Conditions. If a provision in these Conditions might not be valid for one
or other reason indicated in the previous sentence but would be valid if it had a more
limited range or scope then this provision will be automatically valid with the most farreaching
or extensive range or scope with which or within which it is valid.
B. SPECIAL CONDITIONS WITH REFERENCE TO ASSEMBLY/INSTALLATION WORK.
25. General.
25.1 The following provisions of these Conditions are valid next to and in addition to the
provisions specified in Clauses 1 to 24 unless they are explicitly identified as departures
from the previous provisions.
25.2 For assembly and/or installation work the definition of ”Kreisler” (written with a capital S)
is extended to include the third party brought in to execute the assembly or installation
work on behalf of the original Kreisler.
25.3 ”Work” (written with a capital W) is defined as the equipment, machine or installation
which results from the assembly or installation work performed by Kreisler or which
has been made ready for operation by Kreisler.
26. Delivery.
26.1 Kreisler’s written order confirmation is binding for the assembly/installation work and
the associated delivery periods
The periods of delivery begin with the latest of the following dates:
a. the date the agreement is realised;
b. the date the Other Party provides all necessary data in a usable form to Kreisler;
c the date on which Kreisler has received the advance payment(s) agreed upon; or
d. the date on which Kreisler has received the drawings, designs etc from the Other
Party which have been approved by a qualified person.
26.2 If the delivery period is exceeded then the conditions specified in Clause 6 are fully
applicable. In the case of a hold-up in the delivery due to force majeure on the side of the
Kreisler (Clause 9), the Other Party is not entitled to refuse acceptance of goods or their
assembly or installation, or to annul the agreement. Kreisler can postpone the
delivery for as long as the Other Party does not observe his obligations punctually.
26.3 The Other Party must provide Kreisler with the required inspection or testing facilities
punctually. If the Other Party does not comply or does not comply punctually or does not
comply completely with this obligation then the delivery period will be extended by the
period of time in which this obligation was not met.
26.4 Assembly/installation work is considered to have been delivered at the first of the
following moments:
a. the moment when the Other Party approves the Work after an inspection;
b. eight (8) days after Kreisler has informed the Other Party in writing that the Work is
installed, assembled and/or is ready for operation and when Kreisler has not
received any written comments or complaints about the Work from the Other Party;
c. eight (8) days after Kreisler has informed the Other Party in writing that the Work is
installed, assembled and/or is ready for operation and when the Other Party has not
inspected the Work within the intervening period of time or has not tested it or allowed
it to be tested; or
d. the moment that the Other Party actually begins to use the Work and where a part has
been taken into use then this part will be considered as delivered.
The absence of a part supplied by a third party is no reason to consider the Work as not
delivered.
26.5 Small non-essential defects will be rectified or resolved as quickly as possible by the
Kreisler and can be no reason for the Other Party to withhold approval of the Work.
26.6 Advice, information and suggestions from Kreisler about the placement and/or use of
the Work and/or parts thereof are provided in good faith but they nevertheless cannot
guarantee a particular result.
27. Scope of the activities.
27.1 The assembly/installation activities to be performed have the scope described in the order
confirmation from Kreisler and they include, if and in so far as it has been explicitly
agreed, accompaniment/instruction for the personnel assigned to it by the Other Party
with regard to the use and operation of the Work. This will be further worked out in
discussions between Kreisler and Other Party although Kreisler cannot guarantee
that the accompaniment or instruction will produce a specific result.
27.2 Except when and for so far as it has explicitly been agreed otherwise the following
activities, deliveries and provisions do not form a part of the obligations of Kreisler
and the Other Party is obliged to ensure that they are performed or executed in such a
way that they result in no delay to the activities performed by or on behalf of Kreisler:
a. Ground, paving, pile-driving, demolition, foundation, concrete laying, carpentry and
upholstering work or other additional work of whatever nature; the Other party will
ensure, at all times, that there is a good and constant access to the place(s) where the
activities must be carried out;
b. Any help required for the placement or replacement of items which in all
reasonableness cannot be handled by two people, as well as any necessary hoisting
and/or lifting tackle or similar equipment;
c. The supply, setting up and (after completion of Kreisler’s activities) removal of
scaffolding and ladders;
d. The supply of fuels, energy and resources such as compressed air, gas, water,
electricity, diesel oil and petrol, and supply and drainage cables and pipes together
with the required connection points which are necessary for the execution of the
activities and for any testing and commissioning;
e. The provision of connection and safety equipment and cabling for the electric motors
supplied or used and/or other electrical equipment with the exception of starting and
control resistors that form a part of the electrical equipment.
f. For the duration of the activities and nearby the place(s) where these activities most be
executed, the provision of a dry, heated, adequately lighted and separate lockable space of
sufficient size to be used as a shelter for the workmen involved and for the storage of the
materials and tools to be processed/used and of the personal possessions of the workmen;
g. Activities require that parts that become dirty or damaged or which are out of order or
which no longer function are once again returned to a good and usable state, unless
the contamination or damage is caused by the subordinates of Kreisler;
h. Putting the Work into use and/or maintaining it in use for the convenience of the Other
Party or his client;
i. Providing sufficient lighting and, where necessary, providing and maintaining the
required or desired temperature and/or humidity for the place or places where the
activities are to be performed by Kreisler so that the assembly/installation
activities can be carried out without difficulty.
27.3 The Other Party, moreover, is responsible for requesting power supplies, connections,
sufferance dues, nuisance permits, permits with respect to environmental laws and other
regulations relating to the environment, building permits and such like and for ensuring
that the costs involved are settled on time.
27.4 Except when and for so far as it has otherwise explicitly been agreed in writing materials
replaced, coming off or removed become the property of Kreisler.
28. Extra/less work.
28.1 Kreisler is entitled, without the previous permission of the Other Party, to carry out
extra work and charge it to the Other party if the costs of the extra work do not exceed
ten per cent (10%) of the originally agreed amount.
28.2 Changes in an assignment originating from the Other Party or brought about or made
necessary by a change of circumstances as a result of which the original agreement
cannot (completely) remain unchanged will be performed and charged as side-work, this
within the borders of reasonableness and fairness.
28.3 Any extra work or less work which results in the workload deviating by more than ten per
cent (10%) from what was originally agreed must be discussed between the parties and
the measures to be taken decided upon. In the case of cancellation by the Other Party the
Kreisler will be entitled to invoice the Other Party for the costs incurred and the goods
supplied up until that point.
29. Guarantee/liability.
29.1 Kreisler guarantees that the assembly/installation activities will be performed in such
a way that they conform to the agreed specifications and any reasonable demands that
can be attached to them. The provisions of Clause 10 apply with respect to guarantees on
goods supplied by or on behalf of Kreisler which, after completion of the assembly or
installation activities, form a part of the Work. The remaining provisions with respect to
liability are likewise applicable.
29.2 Kreisler explicitly gives no guarantee on goods assembled, installed and/or
commissioned by or on behalf of Kreisler but which are not supplied by Kreisler
himself. In addition, Kreisler accepts no liability for damage arising as a result of the
assembly or installation of goods supplied by third parties or as a result of the
commissioning of a Work where such goods form a part or in which such goods are
assembled or installed, while Kreisler, at the same time, accepts no liability for
assembly or installation activities or commissioning not performed by or on behalf of the
Kreisler or faults in the Work caused by products from third parties which are used in the
assembly, installation or commissioning.
29.3 Kreisler is not responsible for:
- the design of the Work and the parts and components thereof and of the components
of the separate parts of the Work and all other data and information not hailing from
Kreisler;
- the effects on and the consequences for the Work or any part thereof or on goods
supplied by and/or assembled by and/or installed by or on behalf of Kreisler, as a
result of the application or use of material and/or equipment and/or software and/or
other products not supplied to the Other party by Kreisler or by the use or
application of user and operating instructions not provided by Kreisler;
- inaccurate observation of the user or service instructions and the results of such
inaccuracy;
- normal wear and tear, and damage and/or wear and tear resulting from injudicious
use, overloading or from the influence of abnormal or unforeseen circumstances;
- the application of legal or official regulations with regard to safety and/or
environmental norms and the result of their application.
If a case as intended here arises then the obligation of Kreisler to provide a
guarantee lapses.
29.4 The guarantee provisions specified in Clause 10 of these Conditions are also applicable to
assembly/installation work for so far, seeing the specific character of this work, that they
can be applied. This means, amongst other things, that the maximum duration of the
guarantee is 12 months as described in Clause 10, and that the guarantee itself does not
extend to goods and faults for which the guarantee in accordance with the provisions of
Clause 10 is not valid.
30. Claims.
30.1 With regard to claims relating to capability, the Other Party is obliged to lodge these in
writing directly with Kreisler within thirty (30) days of the delivery of the Work. For
other claims the provisions in Clause 13 of these Conditions regarding claims are
applicable.
31. Payment.
31.1 In addition to the provisions in these Conditions regarding payment, in the case of
assembly/installation work Kreisler is also entitled to demand payment in instalments
as follows:
- one third of the agreed price when entering into the agreement;
- one third of the agreed price at the testing or inspection or sending of the finished
goods or the most important parts thereof; and
- one third within thirty (30) days of the day on which the second instalment of one third
has been paid.
C. SPECIAL CONDITIONS RELATING TO SOFTWARE, ADVICE AND COMPUTER SERVICE.
32. General.
32.1 The following provisions of these Conditions are valid next to and in addition to the
provisions specified in Clauses 1 to 31 unless explicitly identified as departures from the
previous provisions.
32.2 ”Software” (written with a capital S) is defined as; computer programme(s) recorded on
media or material that can be read by a computer together with any associated
documentation irrespective of the form of this documentation.
32.3 ”Standard Package” (written with a capital S and P) is defined as; generally available
Software not developed specifically for the Other Party or specially adapted, modified or
extended for the Other Party.
32.4 ”Advising” (written with a capital A) is defined as; the provision of advice with regard to
automation and/or organisation, the performance of feasibility studies, the performance of
consultancy, the performance of system analyses, the selection of equipment, the
provision of support with the development of Software, the giving of tuition, courses or
training, and/or the organisation of courses or training.
32.5 The definition of ”Kreisler” (written with a capital K) is extended to include; the third party
or programmer employed on behalf of the original supplier to execute the activities
involved in the development of the Software, or for the development, adaptation, alteration
and/or extension of a Standard Software Package or for the provision of Advice.
32.6 The Other Party is responsible for ensuring that all relevant or useful data and information
necessary for the carrying out of the agreement is made available to Kreisler on time
and in an understandable and usable form; any costs associated with obtaining such data
and information and making and keeping it available in an understandable and usable
form for Kreisler are to be borne by the Other Party.
32.7 The Other Party is responsible for the use and the correct application of the Software, the
hardware and any services provided or to be provided by or on behalf of Kreisler.
Furthermore, the Other Party is responsible for the use and the correct application of the
administration and calculation methods employed and the Other Party is responsible for
the protection of the data.
32.8 If, in the