General terms and conditions – Kingfisher Workwear BV
1. Applicability and conclusion of Agreement
1.1
In these general terms and conditions - hereinafter “the Terms and Conditions” - “Kingfisher” means the private company with limited liability Kingfisher Workwear B.V., with its registered office in Arnhem, and its affiliated companies. “Customer” is defined as the person for whom Kingfisher provides services and/or to whom Kingfisher supplies Goods and/or to whom Kingfisher supplies or rents Consumables. “Items” means items that are sold or rented by Kingfisher to the Customer under the Agreement. “Consumables” means products to be supplied and/or delivered by Kingfisher that are to be used in or in connection with the Goods.
1.2
These Terms and Conditions apply to requests, quotations and quotations from Kingfisher, as well as to Agreements concluded with Kingfisher. Kingfisher expressly rejects the applicability of the Customer's terms and conditions or other (general) terms and conditions, unless Kingfisher has accepted the relevant terms and conditions in writing.
1.3
All requests, quotations and offers from Kingfisher are without obligation and can be revoked or changed by Kingfisher at any time. If a request or quotation contains a term for acceptance, the offer will immediately expire upon expiry of that term.
1.4
The agreement between Kingfisher and the Customer – hereinafter “the Agreement” – is concluded after the Customer has accepted Kingfisher's offer in the broadest sense of the word. To the extent that the Customer accepts an offer from Kingfisher with deviations, those deviations do not form part of the Agreement, unless Kingfisher expressly agrees to such deviations in writing
2. Prices and payment
2.1
Prices for Goods, Consumables and services are stated in euros (€) excluding VAT, additional reasonable costs/surcharges for the performance of the Agreement by Kingfisher, as well as excluding costs associated with assembly/installation and disassembly of Goods, unless otherwise specified in the Agreement.
2.2
Prices are in principle changed by Kingfisher once a year on the basis of a reasonable indexation. If, in the sole opinion of Kingfisher, there are also valid reasons for a (supplemental) price increase or surcharge, such a change can be implemented by Kingfisher with due observance of a prior notice period of 2 (two) months.
2.3
Kingfisher invoices are sent electronically to the Purchaser. If the Purchaser wishes to receive a paper version, Kingfisher is entitled to charge reasonable costs for this.
2.4
Payment by the Purchaser shall be made within 30 calendar days after the invoice date, unless otherwise agreed in writing.
2.5
If the Purchaser fails to pay the invoices of Kingfisher within the payment term as referred to in article 2.4, he will be in default by operation of law and will owe the statutory commercial interest from that moment on. In that case, Kingfisher is entitled to suspend delivery and to send formal notices, or to take other (extra)judicial measures, whereby the (legal) costs to be incurred by Kingfisher will be charged to the Purchaser, all this to be increased by the statutory commercial interest.
2.6
The Purchaser is obliged to provide security for future payments within 14 days at the first request of Kingfisher, under penalty of suspension of the obligations on the part of Kingfisher. If the Purchaser fails to do so, he will immediately be in default, in which case Kingfisher can terminate the Agreement [with compensation for costs and damage by the Purchaser] without Kingfisher being liable for damages. The delivery time of Goods will be extended by the suspension period.
3. Delivery and execution
3.1
The delivery dates stated in the Agreement are always target dates and do not apply as fatal deadlines.
3.2
The Purchaser receives the ordered Goods and/or Consumables on the basis of rental and/or purchase, in accordance with the Agreement. Kingfisher is authorized to deliver replacement Goods and/or Consumables [of similar quality and functionality] if the originally ordered Goods and/or Consumables are not available at any time.
3.3
If the Purchaser does not [timely] receive the Goods and/or Consumables in accordance with the Agreement, all costs incurred in vain by Kingfisher in connection therewith, including any costs for transport, storage and/or new delivery attempts, will be borne by the Purchaser.
4. Service
4.1
Assembly/installation and disassembly of the Goods is exclusively provided by Kingfisher.
4.2
Kingfisher is free to engage third parties to perform obligations under the Agreement and the Purchaser grants Kingfisher permission in advance to transfer the Agreement and the obligations arising from it for Kingfisher in whole or in part to third parties. Kingfisher is liable to the Purchaser for the performance by the engaged third party[ies].
4.3
The Purchaser is only permitted to rent, sublet, give into use or otherwise make available rented Goods and Consumables to third parties if Kingfisher has given the Purchaser express written approval to do so in advance. The Purchaser is not permitted to have the Goods and Consumables repaired, adjusted or supplemented by third parties.
5. Maintenance and Consumables
5.1
Kingfisher will ensure maintenance, repair, cleaning and/or replacement of the Items as well as replenishment of the Consumables in accordance with the Agreement.
5.2
The Purchaser is obliged to purchase the Consumables from Kingfisher for rented Items, unless otherwise agreed.
6. Warranty
6.1
Kingfisher provides a warranty on the moving parts of purchased Items for a period of one year under normal use.
6.2
The warranty expires in the event of non-normal use of the purchased Items or if the Items have not been installed and/or repaired by Kingfisher or if the Items have not been used in combination with the Consumables from Kingfisher.
7. Ownership Kingfisher
7.1
Items rented by the Purchaser remain the property of Kingfisher. The Purchaser is not entitled to alienate, encumber or appropriate them.
7.2
The risk of the Items purchased by the Purchaser shall pass to the Purchaser at the time of delivery, with all [legal] consequences thereof.
7.3
Without prejudice to the provisions of article 7.2, the ownership of Items purchased by the Purchaser shall only pass to the Purchaser once the Purchaser has paid all claims of Kingfisher on the Purchaser.
7.4
Consumables purchased by the Purchaser, intended for use in combination with the Items, shall remain the property of Kingfisher until the Purchaser has paid all claims of Kingfisher with respect to the Consumables, unless otherwise agreed in writing.
7.5
In the event of any third-party claim on rented and/or not yet [fully] paid purchased Goods and Consumables, suspension of payments or bankruptcy, the Purchaser is obliged to [i] inform the attaching party, administrator or trustee of the ownership/retention of title of Kingfisher and [ii] inform Kingfisher in writing of such circumstances, as well as of the location of the Goods and Consumables.
7.6
The Agreement and/or these Terms and Conditions do not contain a transfer or license of any intellectual property right belonging to Kingfisher. The Purchaser is therefore not permitted to reproduce Goods in whole or in part or to apply, remove or change labels and imprints, unless otherwise agreed in writing.
8. Obligations of Purchaser
8.1
Purchaser shall use and store rented Goods and Consumables appropriately and shall follow the instructions of Kingfisher. Goods and Consumables shall be deemed to have been received in good condition by Purchaser and shall, in the event of rental, be returned in good condition to Kingfisher at the end of the contract.
8.2
Purchaser shall be liable for any property damage outside normal use of rented Goods and the destruction, loss or disappearance of rented Goods. Purchaser shall be obliged to take appropriate measures in the event of damage to/destruction/loss/missing of Goods and to inform Kingfisher thereof without delay. In the event of damage to or loss of rented Goods, Purchaser shall be charged the full repair or replacement costs.
8.3
After termination of the Agreement, the Purchaser must, except for normal wear and tear and aging, have all rented Items dismantled by Kingfisher at its own expense within 14 days and have them collected by Kingfisher without defects and in the condition that Kingfisher may expect from a well-maintained Item.
8.4
If the Purchaser does not or does not timely provide Kingfisher with the opportunity to collect a rented Item, the Purchaser will be in default without any notice of default being required. Kingfisher may enter the location where the Item is located to collect the Item and the Purchaser must cooperate in this. Any costs associated with this will be borne by the Purchaser.
8.5
Kingfisher is authorised to suspend the performance of the Agreement in whole or in part or to terminate the Agreement in whole or in part, without judicial intervention and with immediate effect and without being obliged to pay any damages, in the event of:
[i] a failure by the Purchaser to fulfil its obligations under the Agreement and/or these Terms and Conditions,
[ii] suspension of payment, declaration of bankruptcy of the Purchaser,
[iii] placement under guardianship or administration of one of the parties,
[iv] sale, pledging or termination of the company of one of the parties.
All claims that Kingfisher has or obtains against the Purchaser at the time that one [or more] of the above situations occurs, these claims will be immediately and fully due and payable.
9. Complaints
9.1
Upon delivery of Goods and/or Consumables, the Purchaser must immediately examine whether they comply with the Agreement, failing which the Goods and/or Consumables are deemed to have been received in a sound and undamaged condition and comply with the Agreement.
9.2
If there is any shortcoming on the part of Kingfisher , the Purchaser must notify Kingfisher of this in writing within 5 [five] working days after delivery, stating a clear description of the shortcoming. If the Purchaser fails to do so, his rights in this regard will lapse.
9.3
Filing a complaint as referred to in article 9.2 does not entitle the Purchaser – regardless of whether or not the notification thereof was made on time – to suspend his payment obligation(s) towards Kingfisher .
10. Liability
10.1
Kingfisher is not liable for any damage that the Purchaser and/or third parties may suffer as a result of the Agreement, for whatever reason, except in the event of gross negligence or serious culpability on the part of Kingfisher . In the event that liability of Kingfisher is established, only direct financial loss will be eligible for compensation, excluding indirect, consequential and/or immaterial damage and up to a maximum of the amount charged to the Purchaser by Kingfisher in the previous calendar year, but never more than the amount insured by Kingfisher in the relevant calendar year under its business liability insurance.
11. Confidentiality
11.1
Kingfisher and Purchaser mutually undertake to treat confidential information, including but not limited to the Agreement, as strictly confidential, unless the other party has given prior written consent. Purchaser is obliged to pass on this confidentiality to persons involved in its business, such as its employees, and it guarantees that these persons will not breach the aforementioned confidentiality.
11.2
If Purchaser and/or its employees breach the confidentiality obligation, Purchaser will owe Kingfisher an immediately due fine of EUR 10,000 and in addition EUR 2,000 for each day that the breach continues. In deviation from article 6:92 paragraph 2 of the Dutch Civil Code, Purchaser will also owe this fine if the breach is not attributable. In addition to this fine, Kingfisher retains its right to compensation.
12. Privacy
12.1
Kingfisher is entitled to use and retain all data it receives in the performance of the Agreement without restriction[s], but with due observance of the confidentiality as stated in article 11.1.
12.2
If Kingfisher and Customer process data of individuals in connection with the performance of the Agreement, they will comply with the applicable regulations regarding privacy and data protection.
13. Amendment and termination of the Agreement
13.1
Unless otherwise agreed in writing, the initial term of the Agreement is 36 months from the date of first delivery of Goods and/or Consumables, with a tacit extension of 12 months each time.
13.2
The Agreement will not be tacitly extended if one party has terminated the Agreement in writing to the other party no later than six months before the end of the term, with due observance of a notice period of 6 months.
13.3
Kingfisher may amend the Agreement if there are important reasons for Kingfisher to do so. The Conditions may be amended by Kingfisher, provided that a revised version of the Conditions will apply to the Agreement between Kingfisher and the Customer, as soon as the Customer does not expressly notify Kingfisher of its objections to the amended Conditions within two calendar months after Kingfisher has sent the amended Conditions to the Customer.
13.4
In the event of early termination by the Purchaser, the Purchaser shall owe Kingfisher a termination fee equal to the average turnover [100%] per month generated by Kingfisher for the Purchaser in the year preceding the termination, multiplied by 6 [six]. In addition to this termination fee, Kingfisher shall retain its right to compensation.
13.5
Notwithstanding the provisions of Article 13.4, in the event of early termination of the Agreement in the first 18 months of the initial term, the Purchaser shall owe Kingfisher a termination fee equal to the turnover for Kingfisher over 12 months, which shall be determined on the basis of the average over the previous 12 months. In addition to this termination fee, Kingfisher shall retain its right to compensation.
14. Force Majeure
14.1
If Kingfisher is unable to fulfil the Agreement due to force majeure until more than six months after the agreed delivery date, either party may terminate the Agreement by registered letter. The other party will not be entitled to compensation for damages as a result of such dissolution.
14.2
Force majeure occurs if Kingfisher is unable to fulfil agreements or is unable to fulfil them on time due to a circumstance not attributable to Kingfisher, including war, flooding, natural disaster, epidemic, fire, destruction, damage to or defects in Kingfisher's essential assets for the performance of the agreement, strike, occupation and lock-out, government measures, transport difficulties, illness of personnel and/or lack of raw materials.
15. Miscellaneous
15.1
The invalidity of a provision of these Terms and/or the Agreement shall not affect the validity of other provisions of these Terms and/or the Agreement.
15.2
The Agreement and these Terms and Conditions shall be governed exclusively by Dutch law, to the exclusion of the Vienna Sales Convention.
15.3
Should provisions of these Terms and Conditions and the Agreement be in conflict, the provision of the Agreement shall prevail.
15.4
Only the competent court of the District Court of Gelderland shall have jurisdiction to hear disputes between Kingfisher and the Purchaser regarding the Agreement and/or Terms and Conditions.