General Terms of Sale

Definitions: the party using these general terms and conditions is referred to as ‘Silk-Ka B.V.’, and its counterparty is referred to as ‘customer’.

Article 1. General

These general terms and conditions apply to every offer, agreement, delivery, and legal act between Silk-Ka B.V. and its customer. Provisions deviating from those in these general terms and conditions, such as the customer’s purchase or other general terms and conditions, are not valid between the Parties, unless agreed upon in consultation with Silk-Ka B.V. and expressly accepted in writing by Silk-Ka B.V. The customer who has previously entered into agreements with Silk-Ka B.V. to which these general terms and conditions applied is deemed to have tacitly agreed to the applicability of the general terms and conditions to subsequent agreements with Silk-Ka.
Silk-Ka B.V. is authorized to make changes to these general terms and conditions. These changes will take effect at the announced time of commencement. Silk-Ka B.V. will timely send the amended general terms and conditions to the customer. If no time of commencement has been communicated, the changes will take effect for the customer as soon as they become known to them.

Article 2. Offers

All quotations, offers, brochures, or price lists from Silk-Ka B.V. are without obligation, meaning that the offer can still be revoked within four working days after acceptance. An agreement is only concluded after Silk-Ka B.V. has confirmed the acceptance by its customer in writing. If Silk-Ka B.V. has incurred costs for preparing the quotation, Silk-Ka B.V. is entitled to charge the customer for all costs it has incurred to prepare the quotation.
The prices stated in the quotation or offer are exclusive of VAT and other government levies and any costs to be incurred within the framework of the agreement, including but not limited to: transport costs, loading and unloading costs, packaging, costs for preparing, requesting, and providing (delivery) documents, including a certificate of origin, insurance costs, and administration costs, unless expressly stated otherwise by Silk-Ka B.V.
If, during the period between the date of the quotation and that of delivery, cost prices increase, such as, but not limited to, as a result of government measures, salaries, or import duties, Silk-Ka B.V. is entitled to increase the price charged to the customer accordingly.
In the event that the acceptance deviates from Silk-Ka B.V.’s offer on a (minor) point, no agreement will be concluded, unless Silk-Ka B.V. indicates otherwise in writing.
All offers from Silk-Ka B.V., even if they consist of partial deliveries, must be qualified as a complete offer that cannot be accepted in parts.

Article 3. Delivery Period, Performance, and Amendment of Agreement

The delivery periods specified by Silk-Ka B.V. are only indicative and cannot be regarded as a strict deadline. Silk-Ka B.V. will only be in default if it receives a written notice of default and is granted an additional delivery period of at least four weeks to still deliver.
Delivery takes place FCA (Free Carrier) at Silk-Ka’s establishment (Jan Tinbergenstraat 201 in 7559 SP Hengelo) in accordance with Incoterms 2020, unless otherwise agreed in writing. The customer is obliged to take receipt of the (purchased) goods at the place and time specified by Silk-Ka B.V. In the event that the customer has not taken receipt of the goods at the agreed time and place, Silk-Ka B.V. is entitled to store the goods (or have them stored) at the expense and risk of the customer, including the risk of quality deterioration, including but not limited to deviations in the color and quality of the goods. All costs incurred and to be incurred by Silk-Ka B.V. in connection with the storage of the goods are for the account of the customer. Silk-Ka B.V. is entitled to only release the goods to the customer after full payment of the storage costs. Furthermore, in case of untimely or incomplete acceptance of the goods, Silk-Ka B.V. is entitled to dissolve the agreement (in whole or in part) by means of a written declaration, at the discretion of Silk-Ka B.V.
Silk-Ka B.V. reserves the right to have (a part of) its obligations performed by third parties.
Silk-Ka B.V. is always entitled to deliver the goods in different parts and to invoice each partial delivery separately.
The customer is not entitled to sell, deliver, and/or make the goods available to parties against whom a national, international, or European sanction applies and/or who are established in a country against which a national, international, or European sanction applies.

Article 4. Suspension, Dissolution, Termination of the Agreement

Silk-Ka B.V. is authorized to suspend the fulfillment of its obligations (in whole or in part) and/or to dissolve the agreement (in whole or in part), without Silk-Ka B.V. first having to send the customer a written notice of default and without being liable for damages on the basis of the dissolution, in the event that:
1. the customer fails to properly, completely, or timely fulfill one or more obligations arising from the agreement;
2. after the conclusion of the agreement, facts or circumstances that have come to the knowledge of Silk-Ka B.V. give Silk-Ka B.V. reason to fear that the customer will not properly fulfill its obligations and the customer fails to provide security for the fulfillment of its obligations upon Silk-Ka B.V.’s first request.
3. in the event that the customer does not take receipt of all goods at the agreed time and place, or refuses to take receipt;
4. after the conclusion of the agreement, facts or events occur that significantly delay or hinder the performance of the agreement by Silk-Ka B.V.;
5. the customer attempts to reach a debt settlement with its creditors, in case of a bankruptcy petition, a petition for suspension of payments or WSNP (Dutch Debt Restructuring Scheme for Natural Persons), attachment, and/or liquidation of the customer’s business, as well as in case of death and/or guardianship of the customer, and/or withdrawal and/or reduction of a credit limit issued by Silk-Ka B.V.’s credit insurer on behalf of the customer.
In case of dissolution based on this Article 4, all claims Silk-Ka B.V. has against the customer are immediately due and payable, without prejudice to Silk-Ka B.V.’s right to claim further damages.

Article 5. Force Majeure

Force majeure in these general terms and conditions means any circumstance or event beyond the control of Silk-Ka B.V. that permanently or temporarily prevents or delays the fulfillment of the agreement by Silk-Ka B.V. and over which Silk-Ka B.V. has no influence or has had no influence – even if it was foreseeable at the time the agreement was concluded. Force majeure shall specifically, but not exclusively, include: fire, flood, embargo, (civil) war, strike in or (temporary) shutdown of Silk-Ka B.V.’s business or in the business of one of its suppliers, delay during transport to and from Silk-Ka B.V., delay in obtaining or issuing (import/export) permits, illness or other absence of Silk-Ka B.V. personnel or third parties engaged by Silk-Ka B.V. for the performance of its agreement.
Silk-Ka B.V. is authorized to suspend its obligations during the period of force majeure, without thereby failing to fulfill the agreement.
If the fulfillment of Silk-Ka B.V.’s obligations is delayed due to force majeure, Silk-Ka B.V. will consult with the customer to see if the agreement can be performed at a later date without additional costs. If this proves not to be possible, Silk-Ka B.V. is entitled to dissolve the agreement (in whole or in part), without being liable for damages.
In the event that, before a circumstance or event occurs that must be qualified as force majeure, Silk-Ka B.V. has already performed a part of its deliveries, this part will be invoiced and settled separately, without Silk-Ka B.V. being obliged to still deliver the remainder of the deliveries and without Silk-Ka B.V. being obliged to compensate for any damages.

Article 6. Process, Payment, and Collection Costs

Payment of Silk-Ka B.V.’s invoices must take place within 14 days after the date indicated on the invoice, meaning that the amount to be paid must have been credited to the bank account specified by Silk-Ka B.V. by then, unless otherwise agreed in writing.
The above payment term is a strict deadline. In case of untimely or incomplete payment, the customer is immediately in default. In case of untimely payment, interest of 3% per month, or the statutory commercial interest, whichever is higher, is due from the due date of the invoice. A part of a calendar month counts as a full calendar month in this context.
Invoices will at all times be issued exclusively in the name of the customer. Silk-Ka B.V. does not accept payments from third parties who are not the customer. The customer indemnifies Silk-Ka B.V. and holds it harmless for all damages and costs related to a payment by a third party on behalf of the customer.
The customer is not entitled to set off the amount owed by them to Silk-Ka B.V. against any claim the customer has against Silk-Ka B.V. Nor is the customer entitled to suspend its payment obligations, for any reason whatsoever.
All costs of judicial and extrajudicial collection of the claim(s) shall be borne by the customer. The extrajudicial costs and the costs of legal proceedings are equal to the amount charged by the lawyer or legal aid provider to Silk-Ka B.V. in this regard. If Silk-Ka B.V. handles the collection itself, the collection costs amount to at least 15% of the invoice amount, without prejudice to Silk-Ka B.V.’s right to claim the actual costs from the customer if these are higher. From the incoming payments of the customer in default, these extrajudicial costs and interest will first be settled, after which the remaining amount will be used to settle the oldest outstanding invoices. The customer will pay these costs upon Silk-Ka B.V.’s first request, whereby Silk-Ka B.V.’s administration provides compelling evidence of the indebtedness of the aforementioned extrajudicial or judicial costs.

Article 7. Retention of Title

Silk-Ka B.V. retains ownership of all goods delivered or to be delivered by it to the customer until the purchase price for all these goods has been paid in full. The reserved ownership also applies to all obligations arising from this or other agreements that Silk-Ka B.V. may obtain against the customer. The customer is obliged to store the goods delivered under retention of title with due care and as recognizable property of Silk-Ka B.V.
Before payment for the delivered goods, to which the retention of title applies, has been made, these goods may only be resold within the framework of the customer’s normal business operations.
In the event that third parties attach the goods delivered under retention of title at the expense of the customer and/or Silk-Ka B.V., the customer is obliged to inform Silk-Ka B.V. thereof within 24 hours by means of a written message (including email).
If the customer fails to fulfill its (payment) obligations towards Silk-Ka B.V. and/or gives Silk-Ka B.V. good reason to fear that it will fail to fulfill those obligations, Silk-Ka B.V. is entitled to repossess the goods delivered under retention of title without the intervention of a third party, such as but not limited to a judge or a bailiff. The customer will inform Silk-Ka B.V. upon its first request where these goods are located and will grant Silk-Ka B.V. permission to take possession of the goods concerned, as well as to enter the buildings and premises where the goods concerned are located, as well as those that provide access thereto. Furthermore, upon retrieval of these goods, the customer owes Silk-Ka B.V. the actual costs that Silk-Ka B.V. will incur or has incurred in this regard.
In case of violation of the provisions of this article, the customer forfeits to Silk-Ka B.V. an immediately due and payable penalty of € 2,000.00, as well as an immediately due and payable penalty of € 1,000.00 per day that the violation continues, without prejudice to Silk-Ka B.V.’s right to claim performance and/or actual damages.

Article 8. Defects

The goods to be delivered by Silk-Ka B.V. shall have the agreed properties and shall comply with the specified specifications. Complaints do not give the customer the right to suspend or set off payment of the amount owed by them to Silk-Ka B.V.
The customer is obliged to inspect the delivered goods at the time of delivery. Complaints/claims due to shortages, defects, deviations from the stated specifications, or visibly observable deviations/damages must be accurately described by the customer on the waybills signed by them. Late complaints will result in the forfeiture of all rights of the customer in this regard.
Defects that become apparent later must be reported to Silk-Ka B.V. in writing immediately after their discovery, and in any case no later than five working days after their discovery. Late complaints will result in the forfeiture of all rights of the customer in this regard.
Complaints regarding the invoice amount must be made known to Silk-Ka B.V. in writing within ten (10) days after sending the relevant invoice. Late complaints will result in the forfeiture of all rights of the customer in this regard.
In the event that a good delivered by Silk-Ka B.V. is defective or does not comply with the agreed properties, Silk-Ka B.V. is entitled to repair or replace the good, or to refund the purchase price, at the discretion of Silk-Ka B.V. The customer is not entitled to complain if the goods delivered by Silk-Ka B.V. show deviations, insofar as these deviations are tolerated as customary in the industry.
The customer is aware that the goods are not suitable for outdoor use, such as a garden or a terrace. The quality of the goods may deteriorate due to weather conditions such as rain, frost, sun, or high/low temperatures. Furthermore, the colors of the goods may transfer to other materials. Silk-Ka B.V. is not liable if the customer uses the goods outdoors or exposes them to weather conditions.
All claims of the customer against Silk-Ka B.V. due to a shortcoming in the fulfillment of its obligations under the agreement will lapse if such claims are not made known to Silk-Ka B.V. in writing within six months after the delivery of the goods.

Article 9. Liability

The liability of Silk-Ka B.V. for all damages and costs, which are caused by or directly related to an attributable shortcoming in the performance of the agreement, or which are caused by an unlawful act of Silk-Ka B.V., is at all times limited to the repair of the defective goods or their replacement, unless there is intent or gross negligence. In any case, the liability of Silk-Ka B.V. is limited to the net invoice amount of the relevant delivery.
Silk-Ka B.V. is never liable for indirect damages and costs, including but not limited to production damage, lost profit, and other indirect economic damage, transport costs, stagnation damage, damage to third parties, operational losses, loss of production time, and missed opportunities. Silk-Ka B.V. is not liable for defects or loss of quality of the goods due to changes or processing thereof by or on behalf of the customer, such as but not limited to treating the goods with fire-retardant agents. Silk-Ka B.V. does not guarantee and is not responsible for the goods being/working as fire-retardant.
Silk-Ka B.V. is not liable for damage caused by its personnel or by suppliers or other third parties engaged by Silk-Ka B.V., unless there is intent or gross negligence on the part of the personnel responsible for the management of Silk-Ka B.V.’s business. Silk-Ka B.V. is not liable for damage resulting from incorrect information provided by the customer. Silk-Ka B.V. is also not liable for printing or writing errors in images, brochures, or websites.
The liability-limiting clauses included in these general terms and conditions also serve to limit the liability of subordinates of Silk-Ka B.V. and third parties engaged by Silk-Ka B.V. for the performance of the obligations undertaken by Silk-Ka B.V.

Article 10. Transfer of Risk

The goods to be delivered or delivered by Silk-Ka B.V. are at the risk of the customer from the moment of delivery, or from the moment they are made available to the customer.

Article 11. Indemnification

The customer indemnifies Silk-Ka B.V. and holds it harmless from all claims of third parties for compensation for damages, for which the liability of Silk-Ka B.V. is excluded in these general terms and conditions in relation to the customer.
If Silk-Ka B.V. is sued by third parties, the customer is obliged to assist Silk-Ka B.V. as much as possible, both with knowledge and financially.

Article 12. Intellectual Property

The customer is aware that intellectual property rights, belonging to both Silk-Ka B.V. itself and third parties, may rest on the goods, models, samples, logos, brochures, images, etc., delivered in connection with the agreement, as well as derivations thereof, which rights the customer will respect and not infringe upon.
The customer is expressly prohibited from using, reproducing, disclosing, making available to third parties, or otherwise putting into use these documents, materials, and/or products, as well as promotional material, for purposes other than those specified in the agreement between Silk-Ka B.V. and the customer, unless with the express written consent of Silk-Ka B.V.
If the customer becomes aware of an infringement of the industrial/intellectual property right as described above, they must immediately report this to Silk-Ka B.V.
In case of violation of the provisions of this article, the customer forfeits to Silk-Ka B.V. an immediately due and payable penalty of € 25,000.00 per violation, as well as an immediately due and payable penalty of € 2,000.00 per day that the violation continues, without prejudice to Silk-Ka B.V.’s right to claim performance and/or actual damages.
The customer guarantees Silk-Ka B.V. that they are entitled to the use of the materials, models, samples, logos, images, etc., provided by them, as well as derivations thereof. The customer indemnifies Silk-Ka B.V. against any form of liability that may arise from the use of the materials provided by the customer.
Insofar as intellectual property rights of Silk-Ka B.V. rest on the delivered goods, these rights shall always remain with Silk-Ka B.V., even after delivery and onward delivery of these goods to third parties. The customer is obliged to inform its own customer of these intellectual property rights.

Article 13. Miscellaneous

All notices, letters, and other documents can be validly sent by Silk-Ka B.V. via electronic mail (e-mail). Even if a written requirement applies by law, notices of default or other communications can be communicated to the customer via e-mail.
If a provision in these general terms and conditions is or becomes null and void or voidable, or if these general terms and conditions contain gaps, the validity of these general terms and conditions for the remainder shall not be affected thereby. Parties agree to replace the null and void or voidable provision with a provision that corresponds as much as possible to the legal and/or economic purport and purpose of the null and void or voidable provision. In the case of gaps, a provision shall be deemed to have been agreed upon which the Parties, given the economic and/or legal purport and purpose of these general terms and conditions, would have agreed upon if they had provided for a regulation from the outset.
Silk-Ka B.V.’s accounting records serve as full proof of what the customer owes Silk-Ka B.V.
Silk-Ka B.V. is always entitled to request a prior bank authorization or direct debit for the payment of its invoices.
These general terms and conditions can only be amended in writing. This also applies to this written requirement.
These general terms and conditions are drawn up in the Dutch language. In case of translation of the general terms and conditions into another language, the Dutch version shall be authentic, and the terms used shall be read and understood in the context of the Dutch legal system.

Article 14. Applicable Law and Disputes

These general terms and conditions and all offers and agreements between Silk-Ka B.V. and the customer are exclusively governed by Dutch law.
If the customer is established in the European Union: The court in the place of establishment of Silk-Ka B.V. (being the District Court of Overijssel) has exclusive jurisdiction to hear disputes arising from agreements and from these general terms and conditions, whereby Silk-Ka B.V. is free to also summon the customer before the competent court of their place of residence or another court competent under laws and regulations.
If the customer is established outside the European Union: All disputes that may arise as a result of these general terms and conditions or agreements that may result therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute, whereby Silk-Ka B.V. is free to also summon the customer before the competent court of their place of residence or another court competent under laws and regulations. The arbitral tribunal shall consist of one arbitrator. The place of arbitration shall be Hengelo, the Netherlands. The proceedings shall be conducted in the Dutch language. Parties are at all times free to request the competent court to order provisional or protective measures.

General Terms of Sale

Read also