Article 1 DEFINITIONS
Seller: Kentron Microbiology B.V., the user of the general terms and conditions;
Buyer: the counterparty of the seller, the customer, the client;
Agreement: the agreement between the seller and the buyer.
Article 2 GENERAL
2.1 The provisions of these general terms and conditions apply to every offer and agreement between the seller and the buyer, insofar as the parties have not expressly deviated from these terms and conditions in writing.
2.2 These general terms and conditions also apply to all agreements with the seller, for the performance of which the seller makes use of the services of third parties.
2.3 The applicability of the buyer’s general terms and conditions is expressly excluded, unless the parties have agreed otherwise in writing.
2.4 If the seller enters into more than one agreement with the buyer, these general terms and conditions shall apply to all subsequent agreements, regardless of whether or not they have been explicitly declared applicable.
2.5 If one or more provisions in these general terms and conditions are null and void or are voided, the other provisions of these general terms and conditions will remain applicable.
Article 3 OFFERS/QUOTATIONS/PRICES
3.1 All offers, in whatever form, are without obligation, unless a term for acceptance is stated in the offer.
3.2 Agreements to which the seller is a party are only considered to have been concluded:
a) after both parties have signed an agreement drawn up for that purpose, or;
b) after written confirmation by the seller of an order placed by the buyer;
c) in the absence thereof, by the actual delivery of the products sold.
3.3 In the case of verbal agreements, the invoice shall be deemed to accurately and completely reflect the agreement, unless a complaint is made within 8 days of the invoice date.
3.4 If a natural person concludes an agreement on behalf of or for the account of another natural person, he declares – by signing the contract – that he is authorised to do so. This person is jointly and severally liable with the other natural person for all obligations arising from the agreement.
3.5 If the acceptance deviates from the offer included in the quotation, the seller is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the seller indicates otherwise.
3.6 A composite quotation does not oblige the seller to deliver part of the products included in the offer or quotation at a corresponding part of the quoted price.
3.7 The prices in the agreements apply to delivery from the warehouse, in euros, including loading costs, excluding VAT, government levies, excluding administration and packaging costs, excluding assembly and commissioning, unless expressly agreed otherwise.
3.8 The prices are based on all internal and external cost factors, such as rates, wages, taxes, fuel, levies, prices, etc., applicable on the date of the offer or the conclusion of the agreement under normal circumstances and during normal working hours.
3.9 Because the products are subject to price fluctuations, the seller is entitled to pass on price increases of more than 2% after 30 days if price changes have occurred between the time of acceptance and delivery with regard to, for example, exchange rates, wages, raw materials or packaging materials.
Article 4 PERFORMANCE OF THE AGREEMENT
4.1 The seller shall perform the agreement to the best of its knowledge and ability.
4.2 If and insofar as required for the proper performance of the agreement, the seller shall be entitled to have work carried out by third parties.
4.3 The seller is not liable for damage of any kind caused by the seller relying on incorrect and/or incomplete information provided by the buyer, unless this incorrectness or incompleteness should have been apparent to the seller.
4.4 If delivery is delayed due to factors for which the buyer is responsible, the buyer shall compensate the seller for any damage and costs incurred as a result.
4.5 The buyer indemnifies the seller against any claims from third parties who suffer damage in connection with the performance of the agreement and which damage is attributable to the buyer.
Article 5 DELIVERY
5.1 Delivery shall be made free of charge to the buyer’s address, provided that the buyer is established in the Netherlands and subject to a minimum order size, which depends on the nature of the goods, unless the parties agree otherwise.
5.2 The buyer is obliged to take delivery of the products at the time the seller delivers them or has them delivered, or at the time they are made available to the buyer in accordance with the agreement.
5.3 If the buyer refuses to take delivery or is negligent in providing information or instructions necessary for delivery, the seller is entitled to store the products at the buyer’s expense and risk.
5.4 If the buyer does not take delivery of the purchased products within one week, the seller is entitled to sell the products to another party. If this is not possible, the seller is entitled to destroy the products. Any damage suffered by the seller as a result of resale or destruction will be borne by the buyer.
5.5 The seller is entitled to deliver the products cash on delivery.
5.6 If the seller has specified a delivery period, this is indicative. A specified delivery time is therefore never a strict deadline. If a delivery period is exceeded, the buyer must give the seller written notice of default.
5.7 If the seller requires information from the buyer in connection with the performance of the agreement, the delivery time shall commence after the buyer has made this information available to the seller.
5.8 The seller is entitled to deliver the products in instalments. The seller is entitled to invoice partial deliveries separately.
Article 6 INSPECTION, COMPLAINTS
6.1 The buyer is obliged to inspect the delivered goods at the time of delivery, but in any case within 24 hours. In doing so, the buyer must check whether the quality and quantity of the delivered goods correspond to what has been agreed.
6.2 If a sample has been shown to the buyer, it is presumed to have been shown for illustrative purposes only, without the goods having to correspond to it, unless it has been expressly agreed that the goods will correspond to it.
6.3 Any visible shortages and/or damage must be reported to the seller in writing within 24 hours of delivery. Other complaints must be received by the seller within 8 days of delivery. The notice of default must contain as detailed a description as possible of the shortcoming, so that the seller is able to respond adequately.
6.4 If a complaint is made in good time in accordance with the previous paragraphs, the buyer remains obliged to take delivery of and pay for the purchased products. If the buyer wishes to return defective products, this must be done with the prior written consent of the seller, at the buyer’s expense, in the original packaging and in the manner indicated by the seller.
6.5 The buyer must, at the seller’s first request, enable the seller to inspect the goods sold to verify the validity of the complaint.
6.6 If a complaint is justified, the seller shall replace the delivered goods, unless this has become demonstrably pointless for the buyer. The latter must be communicated by the buyer in writing. However, in all cases, the seller shall only be liable within the limits set out in the articles ‘Warranty’ and ‘Liability’.
6.7 Goods may only be returned with the prior written consent of the seller.
Article 7 PAYMENT
7.1 Payment must be made within 30 days of the invoice date in euros, in a manner to be specified by the seller, unless the parties have agreed otherwise in writing. Objections to the amount of the invoices do not suspend the payment obligation.
7.2 The seller is entitled to charge an advance payment in advance or to demand full payment in advance. After payment of the advance amount, the seller will arrange for delivery.
7.3 If the buyer fails to make payment within the agreed term, the buyer will be in default by operation of law. The buyer will then owe interest of 1.5% per month or part thereof, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the higher interest rate will apply. Interest on the amount due will be calculated from the moment the buyer is in default until the moment the full amount is paid.
7.4 In the event of liquidation, (application for) bankruptcy, admission of the buyer to statutory debt restructuring under the Debt Rescheduling (Natural Persons) Act, placement under guardianship, seizure or (provisional) suspension of payments by the buyer, the seller’s claims against the buyer shall become immediately due and payable.
7.5 Payments will first be applied to reduce the costs, then to reduce the interest due and finally to reduce the principal and the current interest.
Article 8 COLLECTION COSTS
8.1 If the buyer is in default or fails to fulfil its obligations (on time), all reasonable costs incurred in obtaining satisfaction out of court shall be borne by the buyer. The collection costs shall be calculated in accordance with the collection rate recommended by the Dutch Bar Association in collection cases, with a minimum of €350.00.
8.2 If the seller has incurred higher costs, which were reasonably necessary, these will also be eligible for reimbursement. Any reasonable legal and enforcement costs incurred will also be borne by the buyer.
Article 9 RETENTION OF TITLE/RIGHT OF RETENTION
9.1 All products delivered by the seller remain the property of the seller until the buyer has fulfilled all obligations arising from all agreements concluded with the seller.
9.2 If third parties seize the products delivered under retention of title or wish to establish or assert rights thereto, the buyer is obliged to inform the seller as soon as possible.
9.3 Products delivered by the seller that are subject to retention of title pursuant to the first paragraph of this article may only be resold in the context of normal business operations and may never be used as a means of payment.
9.4 The buyer must insure the products subject to retention of title against their sales value. The compensation paid by the insurer will replace the aforementioned products and will accrue to the seller.
9.5 In the event that the seller wishes to exercise its property rights referred to in this article, the buyer hereby grants the seller or third parties designated by the seller unconditional and irrevocable permission to enter all locations where the seller’s property is located and to take back the products.
9.6 The seller is entitled to retain the goods it has in its possession from the buyer until the buyer has fulfilled all its obligations under all agreements with the seller, unless the buyer has provided sufficient security for those costs.
Article 10 WARRANTY
10.1 The products delivered by the seller meet the requirements and specifications set by the manufacturer and customary in the industry. These provisions expressly do not extend to consumables.
10.2 This warranty is limited:
– to deliveries to buyers within the EU;
– to 12 months after delivery (including the trial period), unless expressly agreed otherwise between the parties;
– to replacement or repair of the item;
– to the manufacturer’s warranty, unless the parties have expressly agreed otherwise.
10.3 This warranty shall lapse:
– upon resale of the delivered products, unless the parties have expressly agreed otherwise;
– in the event of improper or inappropriate use or storage and transport;
– after processing, mixing or treatment of the delivered goods by the buyer or a third party;
– in the event of exposure to harmful substances and excessively high or low temperatures;
– if the delivered goods are not used in accordance with the instructions for use;
– in the event of processing, modifications or changes by the buyer or a third party to or of the delivered goods (including repairs by third parties);
– if used for a purpose other than that specified by the buyer to the seller or for which it is suitable.
10.4 As long as the buyer fails to fulfil its obligations arising from the agreements concluded by the parties, it cannot invoke this warranty provision.
10.5 The seller is entitled to charge the buyer for the additional costs (travel, accommodation, special transport, testing) if the warranty work is carried out elsewhere than at the seller’s premises.
Article 11 SUSPENSION AND TERMINATION
11.1 The seller is entitled to suspend the fulfilment of its obligations or to terminate the agreement if:
– the buyer fails to fulfil its obligations under the agreement, fails to do so on time or fails to do so in full;
– after the conclusion of the agreement, circumstances come to the seller’s attention that give good reason to fear that the buyer will not fulfil its obligations, will not do so on time or will not do so in full. If there are good reasons to fear that the buyer will only partially or improperly fulfil its obligations, the suspension is only permitted to the extent that the shortcoming justifies this;
– upon conclusion of the agreement, the buyer is requested to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient. Once security has been provided, the right to suspend performance shall lapse, unless this has unreasonably delayed performance.
11.2 Furthermore, the seller is entitled to terminate the agreement (or have it terminated) if circumstances arise of such a nature that fulfilment of the agreement is impossible or can no longer be demanded in accordance with standards of reasonableness and fairness, or if other circumstances arise of such a nature that unaltered maintenance of the agreement cannot reasonably be expected.
11.3 If the agreement is dissolved, the seller’s claims against the buyer will become immediately due and payable. If the seller suspends the fulfilment of its obligations, it will retain its claims under the law and the agreement.
11.4 The seller always retains the right to claim compensation.
Article 12 CANCELLATION
12.1 Cancellation by the buyer is only possible if it is established that the seller, except in the cases referred to in the provisions of these terms and conditions under “Force Majeure”, cannot fulfil its delivery obligation within a reasonable period of time.
12.2 Cancellation must be made in writing and must be preceded by a notice of default to the seller for failure to deliver on time.
Article 13 LIABILITY AND INDEMNIFICATION
13.1 If products delivered by the seller are defective, the seller’s liability towards the buyer is limited to what is stipulated in these terms and conditions under “Guarantees”.
13.2 The seller is never liable for the composition and possible presence of substances or bacteria prohibited by law on or in the delivered goods. The buyer shall hold the manufacturer liable for this.
13.3 The seller shall never be liable for any reduction in the quality of the delivered goods after two days following delivery, as the seller no longer has any influence on the quality and condition of the delivered products after delivery.
13.4 If the seller is liable for direct damage, that liability is limited to a maximum of the amount to be paid by the seller’s insurer, or at least to a maximum of the sales value of the products.
13.5 The seller is never liable for indirect damage, including consequential damage, lost turnover and profit, lost savings and damage due to business interruption.
13.6 If the seller is held liable by a third party for any damage for which it is not liable under the agreement with the buyer or these terms and conditions, the buyer shall fully indemnify the seller in this regard.
13.7 The seller shall never be liable for:
– deviations, damage, errors and defects that have gone unnoticed in products/samples approved by the buyer;
– damage resulting from rejected raw materials due to changes in environmental legislation after delivery;
– damage resulting from use that does not comply with the instructions for use, environmental legislation or product information;
13.8 The seller shall never be liable for damage resulting from advice given. Advice is always given on the basis of the facts and circumstances known to the seller and in mutual consultation, with the seller always taking the buyer’s intention as a guideline and starting point.
13.9 The buyer must inform its customer in accordance with the instructions for use and product information.
13.10 The buyer must investigate in advance whether the purchased goods are suitable for the purpose for which it intends to use them. If it subsequently transpires that the purchased goods are not suitable for the purpose, the buyer cannot hold the seller liable for any resulting damage.
13.11 The limitations of liability for direct damage included in these terms and conditions do not apply if the damage is due to intent or gross negligence on the part of the seller or its subordinates.
Article 14 TRANSFER OF RISK/TRANSPORT
14.1 The risk of loss or damage to the products that are the subject of the agreement shall pass to the buyer at the moment that the products are legally and/or actually delivered to the buyer and thereby brought under the control of the buyer or a third party designated by the buyer.
14.2 If the seller arranges for the transport or storage of the products that are the subject of the agreement, this will be entirely at the expense and risk of the buyer.
14.3 If and insofar as the seller undertakes the transport, storage, shipment, packaging or similar, the manner in which this is done will be determined by the seller, unless the buyer has provided the seller with further instructions. Unless otherwise agreed, the buyer assumes all risks in this regard, including fault/negligence on the part of the carrier.
14.4 Any specific wishes of the buyer regarding transport/shipping/storage will only be carried out if the buyer has declared that it will bear the additional costs thereof.
Article 15 FORCE MAJEURE
15.1 The parties shall not be obliged to fulfil any obligation if they are prevented from doing so as a result of a circumstance that is not attributable to gross negligence or intent on the part of the party invoking it, and which is not for their account under the law, a legal act or generally accepted practice.
15.2 In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and case law, all external causes, foreseen or unforeseen, over which the seller has no influence, such as traffic jams, power/computer failures, export barriers, accidents, theft, fire, illness of its personnel and stagnation in delivery by suppliers, but as a result of which the seller is unable to fulfil its obligations, whether or not in a timely manner. This includes strikes at the seller’s company or at the auction.
15.3 The seller also has the right to invoke force majeure if the circumstance preventing (further) performance occurs after the seller should have fulfilled its obligation.
15.4 The parties may suspend their obligations under the agreement for the duration of the force majeure. If this period lasts longer than one month, either party is entitled to terminate the agreement without being obliged to compensate the other party for any damage.
15.5 Insofar as the seller has already partially fulfilled its obligations under the agreement at the time of the occurrence of force majeure or will be able to fulfil them, and the fulfilled or to be fulfilled part has independent value, the seller is entitled to invoice the already fulfilled or to be fulfilled part separately. The buyer is obliged to pay this invoice as if it were a separate agreement.
Article 16 PACKAGING
16.1 If the seller provides durable packaging, the buyer must return the packaging empty, cleaned and undamaged within 30 days of delivery.
16.2 All costs of repair, replacement and cleaning will be charged in full to the buyer.
16.3 For each week that the buyer is late in returning the packaging, the seller may charge the buyer an amount of €40.00.
Article 17 CHEMICALS
17.1 Chemicals are in principle supplied for use in laboratories, industry and/or education. The buyer is deemed to be sufficiently knowledgeable for the correct use and application of the chemicals supplied. The seller accepts no responsibility whatsoever for pharmaceutical and/or cosmetic applications. For a number of specific products, the seller is obliged to request so-called end-user declarations. The seller will inform the buyer of this. Delivery will follow after final assessment.
17.2 When using or processing chemicals and/or composite products, the legal regulations must be observed. In addition to the provisions of these terms and conditions under ‘Liability’, damage resulting from non-compliance with legal regulations shall always be borne by the buyer. This includes, in particular, any domestic or foreign patent rights to a recipe supplied by the buyer. In such cases, the seller’s liability is excluded.
Article 18 INTELLECTUAL PROPERTY RIGHTS
18.1 Without prejudice to the provisions of these general terms and conditions, the seller reserves the rights and powers vested in the seller under intellectual property law and the Copyright Act.
18.2 All goods delivered by the seller, samples provided, calculations and brochures are intended exclusively for use by the buyer and may not be reproduced, resold, edited, modified, copied, reproduced, made public or disclosed to third parties, unless the nature of the goods sold or documents provided dictates otherwise.
18.3 The buyer is not entitled to remove the name or brand of the manufacturer from the packaging or the package leaflet supplied.
Article 19 TRANSLATION OF THESE TERMS AND CONDITIONS
Only the version of these terms and conditions written in Dutch is authentic.
If a translation differs in any way, the Dutch text shall prevail.
Article 20 DISPUTES
The competent court in the seller’s place of business shall have exclusive jurisdiction to hear disputes. Nevertheless, the seller has the right to submit the dispute to the court competent under the law.
Article 21 APPLICABLE LAW
All agreements between the seller and the buyer are governed by Dutch law. The Vienna Sales Convention is expressly excluded.
Article 22 Filing of terms and conditions
These terms and conditions have been filed with the Chamber of Commerce and Industry in Woerden under number KvK02/1807576.