Definitions: the user of these general terms and conditions is referred to as “Silk-Ka B.V.”, the other party as the “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. Stipulations that derogate from the stipulations set out in these general terms and conditions, such as the purchase terms and conditions or other general terms and conditions of the customer, do not apply between the parties, unless these have been agreed in consultation with Silk-Ka B.V. and expressly accepted in writing as such by Silk-Ka B.V. The customer who has entered into earlier agreements with Silk-Ka B.V., for which these general terms and conditions applied, will be deemed to tacitly agree to the applicability of the general terms and conditions to later agreements of Silk-Ka B.V.
- Silk-Ka B.V. will be entitled to amend these general terms and conditions. These amendments will come into effect on the announced time of coming into effect. Silk-Ka B.V. will forward the amended general terms and conditions to the customer in a timely manner. If no time of the coming into effect is stated, the amendments will come into effect in respect of the customer as soon as the amendments are communicated to the customer.
Article 2. Offers
- All quotations, offers, brochures or price lists of Silk-Ka B.V. are without obligation in the sense that the offer can still be revoked within four working days after acceptance. An agreement will only come into effect after Silk-Ka B.V. has confirmed the acceptance of its customer in writing. If Silk-Ka B.V. has had to incur costs for submitting the quotation, Silk-Ka B.V. will be entitled to charge the customer for all costs that it had to incur in order to be able to prepare the quotation.
- The prices set out in a quotation or an offer are exclusive of VAT and other duties imposed by the government and any costs to be incurred in the context of the agreement, including, but not limited to, for example: transport costs, loading and unloading costs, packaging costs, costs for the preparation of, application for and provision of (delivery) documents, inter alia including a certificate of origin, insurance costs and administrative costs, unless expressly stated otherwise by Silk-Ka B.V.
- If during the period between the date of the offer and the date of delivery the cost prices are increased as the result of circumstances including, but not limited to, government measures, wages, or import duties, Silk-Ka B.V. will be entitled to increase the price charged to the customer accordingly.
- In the event that the acceptance derogates on a (minor) point from the offer from Silk-Ka B.V., no agreement will come into effect, unless Silk-Ka B.V. states otherwise in writing.
- All offers from Silk-Ka B.V., even if these consist of partial deliveries, must be qualified as an entire offer that cannot be accepted per part.
Article 3. Delivery periods, performance of and amendments to the agreement
- The delivery periods stated by Silk-Ka B.V. are only indicative and cannot be regarded as final deadlines. Silk-Ka B.V. will only be in default if it has been given notice of default in writing and an additional delivery period of at least four weeks is granted to Silk-Ka B.V. to still deliver.
- Delivery takes place FCA the place of business of Silk-Ka B.V. (Jan Tinbergenstraat 201-2015 in 7559 SP Hengelo) in conformity with the Incoterms 2020, unless agreed otherwise in writing. The customer will be obliged to take receipt of the (purchased) goods at the location and time that Silk-Ka B.V. states or has stated. If the customer has not taken receipt of the goods at the agreed time and location, Silk-Ka B.V. will be entitled to take (or cause to take) custody of the goods at the customer's expense and risk, including the risk of quality reduction and including, but not limited to, derogations of colours and the quality of the goods. All costs incurred by Silk-Ka B.V. with regard to the goods to be taken into its custody will be at the customer's expense. Silk-Ka B.V. will be entitled to only deliver the goods to the customer after payment in full of the storage costs. Furthermore, in the event of late or incomplete purchase of the goods, Silk-Ka B.V. will be entitled to terminate the agreement (wholly or partly) by means of a statement in writing, which will be at the discretion of Silk-Ka B.V.
- Silk-Ka B.V. reserves the right to have (a part of) its obligations discharged by third parties.
- Silk-Ka B.V. will always be entitled to deliver the goods in various parts and to separately invoice for each partial delivery.
Article 4. Suspension, termination, notice of termination of the agreement
- Silk-Ka B.V. will be entitled to suspend the fulfilment of its obligations (wholly or partly) and/or to terminate the agreement (wholly or partly), without Silk-Ka B.V. having to give notice of default in writing to the customer first and without being liable for compensation on the basis of the termination, if:
- the purchaser does not, does not fully or does not in a timely manner, fulfil one or more obligations under the agreement;
- after the concluding of the agreement, facts occur, or facts or circumstances come to the knowledge of Silk-Ka B.V., which give cause to fear that the customer will not properly fulfil the obligations and the customer does not furnish security for the fulfilment of his obligations on first request from Silk-Ka B.V.;
- the customer does not take receipt of all goods at the agreed time and location, or refuses to take delivery thereof;
- after the concluding of the agreement, facts or incidents occur which considerably delay or complicate the performan
- the customer tries to reach a debt settlement with the his creditors, in the event of a petition for bankruptcy, application for a moratorium or debt restructuring, attachment and/or liquidation of the enterprise of the customer, as well as on the death or in the event of the placement under guardianship of the customer and/or the withdrawal and/or reduction of a credit limit issued by the credit insurer of Silk-Ka B.V. for the benefit of the customer.
- In the event of termination on the basis of this article 4, all that which Silk-Ka B.V. can claim from the customer will be immediately due and payable, without prejudice to the right of Silk-Ka B.V. to claim compensation for any further damage.
Article 5. Force majeure
- In these general terms and conditions, force majeure is taken to mean each circumstance beyond the control of Silk-Ka B.V. as a result of which the performance of the agreement by Silk-Ka B.V. is permanently or temporarily prevented or delayed, and over which Silk-Ka B.V. has or has had no control, even if this was already foreseeable at the time of the coming into effect of the agreement. Force majeure includes in particular, but is not limited to, the following: fire, floods, embargo, (civil) war, industrial actions in or (temporary) cessation of the business of Silk-Ka B.V. or in the business of its suppliers, delay during the transport to and from Silk-Ka B.V., delay in acquiring or issuing of (import/export) permits, absence due to sickness or otherwise, of staff members of Silk-Ka B.V. or of third parties engaged by Silk-Ka B.V. for the performance of its agreement.
- During the period of force majeure, Silk-Ka B.V. will be entitled to suspend its obligations without failing to fulfil the obligations under the agreement as a result.
- If fulfilment of the obligations of Silk-Ka B.V. is delayed due to force majeure, Silk-Ka B.V. will enter into consultation with the customer in order to consider whether the agreement can be performed at a later time without additional costs. If this appears not to be possible, Silk-Ka B.V. will be entitled to terminate the agreement (wholly or in part) without being liable for any compensation.
- If prior to the occurrence of a circumstance or incident which qualifies as force majeure Silk-Ka B.V. has already executed a part of its deliveries, this part will be invoiced and settled separately, without Silk-Ka B.V. being obliged to still make the rest of the deliveries or being liable for any compensation of damage.
Article 6. Process, payment and collection costs
- Payment of the invoices of Silk-Ka B.V. must take place within 14 days after the date stated on the invoice, meaning that the amount to be paid must have been credited to the bank account stated by Silk-Ka B.V. by then, unless agreed otherwise in writing.
- The aforementioned payment term is a final deadline. The customer will be in default with immediate effect in the event of failure to pay in time or in full. In the event of late payment, an interest of 3% per month or the statutory commercial interest will be owed from the due date of the invoice, depending on which interest is higher. In this context, part of a calendar month will apply as a full calendar month.
- The customer will not be entitled to set-off the amount owed to Silk-Ka B.V. against any claim of the customer against Silk-Ka B.V. The customer is also not entitled to suspend his payment obligations for any reason whatsoever.
- All judicial and extrajudicial collection costs of the claim(s) will be borne by the customer. The extrajudicial costs and the costs of legal proceedings will be equal to the amount that the lawyer or legal assistance provider has charged to Silk-Ka B.V. with regard to this. If Silk-Ka B.V. deals with the collection itself, the collection costs will amount to at least 15% of the invoice amount, without prejudice to the right of Silk-Ka B.V. to claim the actual costs from the customer if these are higher. In that case, the incoming payments from the defaulting customer will first serve to settle the extrajudicial costs and interest, following which the remaining amount of the longest outstanding invoices will be settled. The customer will pay these costs on first request from Silk-Ka B.V., whereby the administrative records of Silk-Ka B.V. will provide conclusive evidence of the liability to pay the aforesaid extrajudicial or judicial costs.
Article 7. Retention of title
- Silk-Ka B.V. retains the title to all goods delivered, or still to be delivered, by Silk-Ka B.V. to the customer until the purchase price for all these goods has been paid in full to Silk-Ka B.V. The retention of title also applies to all obligations ensuing from this agreement or from other agreements, which Silk-Ka B.V. might acquire against the customer. The customer will be obliged to keep the goods delivered subject to retention of title with due care and as the recognisable property of Silk-Ka B.V.
- Prior to the payment of the delivered goods which the retention of title relates to, it will only be permitted to sell on these goods in the course of the usual business operations of the customer.
- In the event that third parties levy attachment against the customer and/or Silk-Ka B.V. on the goods delivered subject to retention of title, the customer will be obliged to inform Silk-Ka B.V. of this within 24 hours by means of a message in writing (including by email).
- If the customer fails to fulfil his (payment) obligations towards Silk-Ka B.V. and/or Silk-Ka B.V. has good grounds to fear that the customer will fail to fulfil these obligations, Silk-Ka B.V. will be entitled to repossess the goods delivered subject to retention of title, without the intervention from a third party such as, but not limited to, a judge or a bailiff. The customer will inform Silk-Ka B.V. on its first request of the location where these goods are situated and will permit Silk-Ka B.V. to take possession of the goods concerned, and to enter for this purpose the buildings and spaces where the goods concerned are situated, as well as the buildings and spaces that provide access thereto. Furthermore, in case of the repossession of these goods, the customer will owe Silk-Ka B.V. the actual costs which Silk-Ka B.V. will incur, or has incurred, with regard to this.
- In the event of breach of the provisions of this article, the customer will incur towards Silk-Ka B.V. an immediately due and payable financial penalty of € 2,000, as well as an immediately due and payable financial penalty of € 1,000 for each day during which the breach continues, without prejudice to the right of Silk-Ka B.V. to claim performance and/or the actual damage.
Article 8. Defects
- The goods to be delivered by Silk-Ka B.V. will have the agreed characteristics and will meet the stated specifications. Any complaints will not give the customer the right to suspend or set off the payment owed to Silk-Ka B.V.
- The customer is obliged to inspect the delivered goods at the time of delivery. Complaints/objections due to shortfalls, defects, derogations from the stated specifications or externally observable derogations/damage must be precisely described by the customer on the consignment notes signed by him. Late complaints will cause all rights of the customer related thereto to lapse.
- Defects that appear at a later time must be reported to Silk-Ka B.V. in writing immediately after discovering these and in any event no later than five working days after discovery. Late complaints will cause all rights of the customer related thereto to lapse.
- Complaints related to the invoice amount must be communicated to Silk-Ka B.V. in writing no later than within ten (10) days after the sending of the invoice. Late complaints will cause all rights of the customer related thereto to lapse.
- If goods delivered by Silk-Ka B.V. are defective or do not meet the agreed characteristics, Silk-Ka B.V. will be entitled to repair or replace the goods, or as the case may be to repay the purchase price, which will be at the discretion of Silk-Ka B.V. The customer will not be entitled to complain if the goods delivered by Silk-Ka B.V. show derogations, provided that these derogations are tolerated as being usual in the sector.
- All claims of the customer against Silk-Ka B.V. due to a failure in the fulfilment 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 damage and costs caused by, or directly related to, an attributable failure in the performance of the agreement, or caused by an unlawful act on the part of Silk-Ka B.V., is at all times limited to the repair of the defective goods or the replacement thereof, unless there is intent or gross negligence. The liability of Silk-Ka B.V. is in any event limited to the net invoice amount of the delivery concerned.
- Silk-Ka B.V. will never be liable for indirect damage and costs, inter alia including, but not limited to, production losses, lost profit and other indirect economic loss, transport costs, business interruption loss, damage of third parties, operational losses, loss of production time, and missed opportunities. Silk-Ka B.V. will not be liable for defects or loss of quality of the goods due to changes thereto or processing thereof by or on behalf of the customer, such as inter alia, but not exclusively, having the goods treated with fire-retardant substances. Silk-Ka B.V. does not guarantee and does not warrant that the goods are fire-retardant or have fire-retardant qualities.
- 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 staff charged with the management of the business of Silk-Ka B.V. Silk-Ka B.V. will not be liable for damage resulting from incorrect information which has been provided by the customer, nor will Silk-Ka B.V. be liable for printing errors or clerical errors in images or brochures or on websites.
- The limitation of liability stipulations included in these general terms and conditions also serve for the limitation of the liability of employees of Silk-Ka B.V. and the third parties engaged by Silk-Ka B.V. for the fulfilment of the obligations that Silk-Ka B.V. has undertaken.
Article 10. Risk transfer
- The goods delivered or to be delivered by Silk-Ka B.V. are at the risk of the customer from the time of the delivery, or as the case may be from the time when these are made available to the customer.
Article 11. Indemnity
- The customer indemnifies Silk-Ka B.V. against, and will compensate Silk-Ka B.V. for, all claims by third parties for compensation of damage, regarding which the liability of Silk-Ka B.V. is excluded in the relationship with the customer in these general terms and conditions.
- If third parties bring claims against Silk-Ka B.V., the customer will be obliged to assist Silk-Ka B.V. as much as possible, with knowledge as well as financially.
Article 12. Intellectual property
- The customer is aware of the fact that intellectual property rights of Silk-Ka B.V., as well as of third parties, can be vested in the goods, designs, samples, logos, brochures, images and suchlike as well as in the derivatives thereof, delivered under the agreement, which rights the customer will respect and will not infringe.
- The customer is expressly prohibited from using, reproducing, publishing or making available to third parties these documents, materials and/or products, as well as promotion material, for other purposes, or from giving these into use in a manner other than as stipulated in the agreement between Silk-Ka B.V. and the customer, unless with express permission in writing from Silk-Ka B.V.
- If the customer becomes aware of an infringement of the industrial/intellectual property rights as described above, he must immediately report this to Silk-Ka B.V.
- In the event of a breach of the provisions of this article, the customer will incur towards Silk-Ka B.V. an immediately due and payable financial penalty of € 25,000 per breach, as well as an immediately due and payable financial penalty of € 2,000 for each day during which the breach continues, without prejudice to the right of Silk-Ka B.V. to claim performance and/or the actual damage.
- The customer guarantees to Silk-Ka B.V. that he is entitled to use the materials, designs, samples, logos, images and suchlike, as well as the derivatives thereof, that are made available by the customer. The customer indemnifies Silk-Ka B.V. against any form of liability whatsoever which may ensue from the use of the materials made available by the customer.
- Insofar as intellectual property rights are vested in Silk-Ka B.V., these rights will always remain vested in Silk-Ka B.V., even after delivery and onward supply of these goods to third parties. The customer will be obliged to point out these intellectual property rights to its own customers.
Article 13. Miscellaneous
- All notices, letters and other documents can be sent by Silk-Ka B.V. in a legally valid manner by electronic mail (email). Even if there is a legal requirement to set out in writing, notices of default or other notices can be communicated by email to the customer.
- If a provision of these general terms and conditions is null and void or voidable, or if these general terms and conditions contain gaps, this will not affect the validity of the other provisions of these general terms and conditions. The parties agree to replace the null and void or voidable provision by a provision that will as much as possible correspond to the legal and/or economic purpose and purport of the null and void or voidable provision. In the event of gaps, such an agreed provision will be deemed to apply as the parties would have agreed, having regard to the economic and/or legal purpose and purport of these general terms and conditions, if they had foreseen such an arrangement from the outset.
- The accounts of Silk-Ka B.V. will constitute conclusive evidence with regard to that which the customer owes to Silk-Ka B.V.
- Silk-Ka B.V. will always be entitled to require in advance a bank authorisation or direct debit mandate for the payment of its invoices.
- These general terms and conditions can only be amended in writing. This also applies for this requirement to set out in writing.
- These general terms and conditions have been drawn up in the Dutch language. In the event of a translation of the general terms and conditions into another language, the Dutch version will be the authentic version and the concepts used must be read and understood in the context of the Dutch legal system.
Article 14. Applicable law and disputes
- Dutch law exclusively applies to these general terms and conditions and all offers and agreements between Silk-Ka B.V. and the customer.
- If the customer is established in the European Union: The court of the place of business of Silk-Ka B.V. (being the Overijssel District Court) has exclusive jurisdiction to hear disputes ensuing 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 its place of residence or another court with competent jurisdiction on the basis of legislation and regulations.
- If the customer is established outside the European Union: All disputes that may arise in relation to these general terms and conditions, or agreements that might be the result thereof, will be settled in accordance with the Arbitration Regulations of the Dutch Arbitration Institute, whereby Silk-Ka B.V. will be free to also summon the customer before the competent court of its place of residence or another court with competent jurisdiction on the basis of legislation and regulations. The arbitration tribunal will consist of one arbitrator. The place of arbitration will be Hengelo, the Netherlands. The proceedings will be conducted in the Dutch language. The parties are free at all times to request that the competent court orders preliminary or precautionary measures.