General conditions
This document applies to Kruitbosch and its associated brands, PENDLR, Cortina, and Alpina.
Kruitbosch Zwolle B.V.
Ravensburgstraat 8
8028 PZ Zwolle
Dutch Chamber of Commerce registration number:
Version: September 2024
Article 1: Applicability, definitions
1. These general terms and conditions apply to all offers, orders and all agreements of sale of Kruitbosch Zwolle B.V., established in Zwolle, hereinafter referred to as "Kruitbosch".
2. The purchaser, any natural person acting in the course of its business, or legal entity that contacts Kruitbosch in connection with an agreement that may be entered into or has entered into with Kruitbosch, shall hereinafter be referred to as "purchaser".
3. Unless otherwise agreed in writing, these general terms and conditions also apply to repeat orders or partial orders resulting from the agreement.
4. If Kruitbosch has already handed these general terms and conditions to the purchaser several times, Kruitbosch does not have to hand over the general terms and conditions each time in order for them to apply to subsequent agreements.
5. If any provision of the agreement is invalid or non-binding on account of incompatibility with mandatory law, the agreement shall remain in force for the rest, and Kruitbosch shall replace the invalid and non-binding provision with another provision that is valid and binding, the legal consequences of which approximate those of the invalid and non-binding provision as far as possible, also with a view to the nature and scope of the agreement.
6. Kruitbosch reserves the right to amend these general terms and conditions during the term of the agreement. The most recent version of the general terms and conditions shall automatically apply to every agreement as soon as it is made known to the purchaser by Kruitbosch.
7. Additions or amendments to these general terms and conditions or the agreement shall not be binding on Kruitbosch until they have been confirmed to the purchaser in writing by Kruitbosch.
Article 2: Conclusion of agreements
1. All offers or quotations by Kruitbosch are without obligation, even if they contain a term for acceptance. If an offer or quotation contains an offer without obligation and this offer is accepted by the purchaser, Kruitbosch has the right to revoke the offer within 5 working days after receipt of the acceptance.
2. The purchaser is responsible for placing an order correctly. The agreement is concluded after the purchaser has accepted the offer made by Kruitbosch, even if this acceptance deviates from the offer on minor points. However, if the purchaser's acceptance deviates from the offer on essential points, the agreement shall only be concluded if Kruitbosch has expressly agreed to these deviations in writing.
3. If the purchaser issues an order or places an order to Kruitbosch without a prior offer, Kruitbosch shall only be bound by this assignment or order after it has confirmed this to the purchaser in writing.
4. Kruitbosch shall only be bound by verbal agreements after it has confirmed these to the purchaser in writing or as soon as Kruitbosch – without objection from the purchaser – has started to implement these agreements.
5. By placing orders by the purchaser or the delivery of goods by Kruitbosch, a long-term relationship between the parties is in no way entered into or intended. Each order by the purchaser and delivery by Kruitbosch stands alone. Kruitbosch therefore has the right at all times – without giving reasons – not to deliver (any longer) to the purchaser, or if there is a long-term relationship, to terminate this relationship with due observance of a notice period of 2 (two) months. The foregoing except to the extent that other agreements have been expressly made between the parties.
Article 3: Offers, quotations, prices
1. The prices stated in the offers and quotations are exclusive of VAT and any costs, such as transport costs, shipping costs, administration costs and invoices from third parties called in. Unless otherwise agreed in writing, all transport, shipping, customs and clearance costs and all other charges related to the delivery as well as the costs related to insuring the products shall be borne by the purchaser.
2. A compound quotation does not oblige Kruitbosch to deliver part of the offer included in this quotation at a corresponding part of the price.
3. If the offer is based on information provided by the purchaser and this information turns out to be incorrect or incomplete or changes afterwards, Kruitbosch shall be entitled to adjust the prices and/or delivery periods stated in the offer.
4. Offers, quotations and prices do not automatically apply to repeat orders.
5. Samples and models shown and/or provided, quotations of colours, dimensions, weights and other descriptions in brochures, promotional material and/or on the Kruitbosch website are as accurate as possible, but are only indicative. The purchaser cannot derive any rights from this.
6. The samples and models referred to in the previous paragraph shall remain the property of Kruitbosch and must be returned to Kruitbosch at the purchaser's first request at the purchaser's expense.
7. If between the date of concluding the agreement and its execution, (cost) price increasing circumstances occur for Kruitbosch as a result of legislation and regulations, currency fluctuations or price changes at the third parties or suppliers engaged by Kruitbosch, etc., Kruitbosch shall be entitled to increase the agreed price accordingly and charge this to the purchaser.
Article 4: Engagement of third parties
1. If proper execution of the agreement requires this, Kruitbosch has the right to engage third parties. Kruitbosch is at all times entitled to invoke any limitations of liability of those third parties against Kruitbosch in turn against the purchaser.
Article 5: Obligations of the purchaser
1. The purchaser shall ensure that shall be entitled provides Kruitbosch with all information required for the execution of the agreement in good time in the manner desired by Kruitbosch and that this information is correct and complete.
2. All goods delivered by Kruitbosch may only be resold by the purchaser in the original packaging originating from Kruitbosch or its supplier. The purchaser must not make any changes to the original packaging and must avoid damage. If this provision is violated, the purchaser shall be liable for all damages and costs incurred by Kruitbosch as a result.
3. If the purchaser receives a complaint about the resold goods, the purchaser shall first investigate the complaint himself/herself and assess whether the complaint is justified before the purchaser can appeal.
Article 6: Delivery, delivery terms
1. Although Kruitbosch makes every effort to meet the agreed delivery period, the delivery periods stated are only indicative and should never be regarded as strict deadlines. If Kruitbosch does not fulfil its delivery obligations under the agreement or does not do so in time, it shall be given written notice of default by the purchaser, whereby it is granted a reasonable period to still fulfil its delivery obligations.
2. Kruitbosch shall be entitled to deliver in parts, whereby each partial delivery can be invoiced separately by Kruitbosch.
3. The risk regarding the ordered goods shall pass from Kruitbosch to the purchaser at the time these goods are made available to the purchaser at the agreed place. If it has been agreed that Kruitbosch will take care of shipment or transport of the ordered goods, the moment of making the goods available is the moment of delivery of the goods at the agreed place of delivery. If it has been agreed that the purchaser will take care of the shipment or transport of the ordered goods, the moment the goods to be delivered leave Kruitbosch's premises, warehouse or shop, or, if earlier, the moment Kruitbosch has notified the purchaser that shall be entitled can collect these goods, shall be deemed to be the moment of availability.
4. Unless otherwise agreed in writing, the party responsible for shipment or transport shall determine the manner in which this takes place and shall bear the costs of shipment or transport. If it has been agreed that Kruitbosch will arrange transport, the purchaser must ensure that the delivery address stated is complete and correct and that delivery can actually be made to the address. A post box and/or reply number meets these requirements. If delivery (unloading) is not possible or if delivery is refused, the purchaser is immediately in default and the purchaser is obliged to reimburse the costs incurred by Kruitbosch. Moreover, in that case, Kruitbosch shall be free, at Kruitbosch's discretion and at the purchaser's expense and risk to:
a. Deliver the goods to a location which, in the opinion of Kruitbosch and/or its transporter, is most suitable at or in the immediate vicinity of the corresponding delivery address.
b. Take back the goods and deliver them at a later date.
c. Store the goods elsewhere and deliver them at a later date.
5. If, after expiry of one month from the original delivery date, the purchaser has not remedied its default by still complying with its obligation to take delivery, Kruitbosch has the right to dissolve the agreement in whole or in part with immediate effect, without judicial intervention, by means of a written statement, and to sell the goods to third parties. All this without any obligation for Kruitbosch to compensate for damage, costs and interest. If and to the extent that the purchaser has already paid Kruitbosch an amount for the aforementioned goods, Kruitbosch shall reimburse the purchaser for any remainder of this amount remaining after deducting any damage suffered by Kruitbosch and/or costs incurred in connection with the storage of the goods.
6. The foregoing shall not affect the purchaser's obligation to compensate any (storage) costs, delay damage, transport costs, loss of profit or other damage.
7. Kruitbosch cannot be obliged to commence delivery of the goods before it has received all necessary information and any agreed (advance) payment or requested security from the purchaser. If this causes a delay, delivery times shall be extended proportionally.
Article 7: Packaging
1. If the goods are delivered by or on behalf of Kruitbosch in packaging intended for multiple use, the packaging shall remain the property of Kruitbosch or the third party. This packaging may not be used by the purchaser for purposes other than those for which it is intended.
2. Kruitbosch shall be entitled to charge the purchaser a fee for this packaging. After timely return of the packaging, Kruitbosch shall refund the fee.
3. If packaging is damaged, incomplete or lost, the purchaser shall be liable for this damage and its right to reimbursement shall lapse.
4. If the damage referred to in paragraph 3 of this article exceeds the compensation charged, Kruitbosch is authorised not to take back the packaging. Kruitbosch may then charge the packaging at cost price, plus any damage suffered by Kruitbosch as a result of the packaging being damaged, incomplete or lost that exceeds the cost price and/or costs incurred and less the compensation paid by the purchaser. The purchaser is obliged to pay that amount to Kruitbosch on demand within 14 calendar days.
5. If packaging is intended to be used only once, Kruitbosch does not have to take back the packaging and Kruitbosch shall be entitled to leave this packaging with the purchaser. Any costs for disposing of this packaging shall then be borne by the purchaser.
Article 8: Complaints and returns
1. The purchaser is obliged to check the delivered goods for numbers immediately upon delivery. In case of any deviations thereof, the buyer is prohibited from signing for full receipt and this must be shown on the delivery note or other (digital) transport documentation. Any other immediately visible defects, faults and damage to the delivered goods and/or their packaging may also be noted on the delivery note and/or transport documentation. The purchaser is in any case obliged to check the delivered goods and/or packaging for any visible defects, faults or damage immediately upon receipt, but at the latest within 72 hours, and if there are any, to report this in writing to Kruitbosch within 24 hours of discovery thereof, whether or not via a designated online environment, but at the latest within 5 calendar days after receipt of the goods.
2. Defects that were not observable at the time of delivery and could not have become apparent during the inspection as referred to in paragraph 1 of this article must be reported in writing to Kruitbosch by the purchaser within 24 hours of the discovery of these defects, or at least the time at which they could reasonably have been discovered. The deadline for reporting such defects is one year from delivery, unless the warranty period offered to the consumer in respect of the relevant goods is shorter. In that case, this shorter warranty period shall be the final notification period.
3. If a complaint has not been reported to Kruitbosch within the periods stated in the previous paragraphs, the goods are deemed to have been received in good condition and to comply with the agreement. Then the purchaser's right to complain lapses, no appeal is possible to any agreed warranty and Kruitbosch is not obliged to deal with the complaint. If the purchaser has resold the delivered goods and receives a complaint from its purchaser, the purchaser is obliged to first investigate the correctness of the complaint himself/herself before Kruitbosch is obliged to deal with the complaint.
4. Ordered goods shall be delivered in the (wholesale) packaging in stock at Kruitbosch. Minor deviations in sizes, weights, quantities, colours, etc. accepted in the industry do not apply as a shortcoming on the part of Kruitbosch and do not result in the relevant goods not complying with the agreement.
5. Complaints regarding a specific delivery do not suspend the purchaser's payment obligations regarding other deliveries.
6. The purchaser shall enable Kruitbosch to investigate the complaint and in this context provide Kruitbosch with all information relevant to the complaint. Any claim of the purchaser against Kruitbosch relating to alleged defects in the delivered goods shall lapse if the purchaser fails to cooperate or insufficiently cooperates in an investigation into the merits of the complaints. If return shipment is necessary to investigate the complaint, this shall take place at the expense and risk of the purchaser, unless the complaint is subsequently found to be justified.
7. It is at the sole discretion of Kruitbosch, acting as a reasonable supplier, whether the reported defect is justified. If the defect is justified, Kruitbosch shall, at its discretion, provide for replacement of the relevant goods free of charge upon return of the relevant defective goods, or for reimbursement of or a discount on the agreed price. These are the only rights the purchaser can claim in case of a defect.
8. Any claim by the purchaser against Kruitbosch relating to alleged defects in the delivered goods shall lapse, and Kruitbosch cannot be held liable on other grounds, if the damage has occurred:
a. Due to improper use or use contrary to the purpose of the delivered product or the instructions, advice, directions for use, leaflets, etc. provided by or on behalf of Kruitbosch.
b. Due to improper preservation (storage) of the delivered goods.
c. Due to errors or omissions in the information provided to Kruitbosch by or on behalf of the purchaser.
d. Due to directions or instructions from or on behalf of the purchaser.
e. Due to repairs or other work or operations that have been carried out on the delivered goods by or on behalf of the purchaser or consumer, without Kruitbosch's express prior consent.
9. In the cases listed in paragraph 8 of this article, the purchaser shall be fully liable for all resulting damage and explicitly indemnifies Kruitbosch against all third-party claims for compensation of such damage.
10. In all cases, the goods shall be returned in a manner to be determined by Kruitbosch and in the original packaging.
11. Imperfections in or properties of goods manufactured from natural materials shall not result in such goods not complying with the agreement, and complaints in respect of such goods shall not be considered if such imperfections or properties are inherent to the nature of such materials.
12. If and as soon as goods which, after receipt by the purchaser or third parties, have changed in nature and/or composition or have been fully or partly processed or are no longer in their original packaging, the purchaser can no longer claim that those goods do not comply with the agreement and/or can no longer rely on any warranty agreed with regard to those goods. Complaints regarding matters referred to in the previous sentence shall not be considered.
Article 9: Liability
1. Without prejudice to the provisions of article 8 of these general terms and conditions, Kruitbosch shall only be liable for direct damage. Direct damage shall only mean the reasonable costs that are a direct and immediate consequence of the Kruitbosch's failure to fulfil the agreement.
2. Kruitbosch shall never be liable for indirect damage by the purchaser. Indirect damage includes consequential damage, loss of profits and/or losses suffered, costs incurred or damage due to business interruption, as well as missed orders and missed savings and/or delay damage.
3. Kruitbosch shall also not be liable for damage towards third parties arising from or in connection with the nature of or defects to the delivered goods.
4. The purchaser shall be obliged to take all measures necessary to prevent or limit the damage.
5. If Kruitbosch is liable for damage suffered by the purchaser, Kruitbosch's obligation to pay compensation shall at all times be limited to a maximum of the amount paid by its insurer in the case in question minus the amount of its own risk. If Kruitbosch's insurer does not pay out or the damage is not covered by (the coverage of) an insurance policy taken out by Kruitbosch, Kruitbosch's obligation to pay compensation is limited to a maximum of the invoice amount for the delivered item(s) that caused the damage.
6. The purchaser shall notify Kruitbosch of the damage shall be entitled has suffered within 6 months after shall be entitled has become aware of it or could have become aware of it, on pain of forfeiture of the right to sue Kruitbosch for compensation for that damage.
7. The limitations of liability included in this article do not apply if the damage is due to intent and/or deliberate recklessness on the part of Kruitbosch or its managerial staff at board level or if mandatory statutory provisions dictate otherwise.
Article 10: Payment
1. Kruitbosch shall at all times be entitled to require (partial) advance payment or any other security for payment from the purchaser.
2. Payment shall be made within a due date of 30 calendar days from the invoice date, unless the parties have expressly agreed otherwise in writing. Thereby, the correctness of an invoice is established if the purchaser has not objected within this payment period, unless Kruitbosch proves that the invoice is incorrect.
3. If an invoice has not been paid in full after the expiry of the term referred to in paragraph 2, the purchaser shall be in default by operation of law pursuant to Section 6:83a of the Dutch Civil Code and, without prejudice to Kruitbosch's other rights, the purchaser shall pay Kruitbosch the statutory commercial interest pursuant to Section 6:119a of the Dutch Civil Code, to be calculated on the principal sum. Parts of a month are counted as full months for this purpose. In addition, all extrajudicial and judicial costs incurred by Kruitbosch as a result of the purchaser's failure to fulfil its payment obligations or other obligations under the agreement or these general terms and conditions shall be borne by the purchaser. The amount of the extrajudicial collection costs payable to Kruitbosch shall be a minimum of 15% (fifteen per cent) of the relevant invoice amount with a minimum of €100 (one hundred euros).
4. If the purchaser fails to pay in full, Kruitbosch shall be entitled, without further notice of default or judicial intervention, to dissolve the agreement by means of a written statement or to suspend its obligations under the agreement until payment has been made or the purchaser has provided proper security for this. Kruitbosch shall also have the aforementioned right of suspension if, even before the purchaser is in default of payment, it has sound reasons to doubt the creditworthiness of the purchaser.
5. Payments made by the purchaser shall first be deducted by Kruitbosch from all interest and costs due and subsequently from the due and payable invoices that have been outstanding the longest.
6. Kruitbosch's claim for payment by the purchaser is, in any case, immediately due and payable as soon as:
a) A payment deadline has been missed.
b) The purchaser has gone bankrupt or applied for bankruptcy or suspension of payments.
c) Goods or receivables of the purchaser have been or will be seized.
d) The control of the purchaser changes.
e) The purchaser is dissolved, ceases to exist by merger or otherwise ceases to exist.
Article 11: Retention of title
1. Kruitbosch retains ownership of all goods delivered and to be delivered by it until the purchaser has paid all claims referred to in paragraph 2 that Kruitbosch has or will acquire against it. The mere circumstance that Kruitbosch does not have a claim as referred to above against the purchaser at any time does not nullify the retention of title. Retention of title shall in any case always apply to all delivered goods that are still in the purchaser's stock, shop and/or contents at the time of invoking retention of title, regardless of whether the purchase price for one or more goods present has already been paid.
2. Claims referred to in paragraph 1 include:
a. Claims regarding the consideration for goods delivered or to be delivered by Kruitbosch to the purchaser pursuant to the agreement (including: payment of the purchase price or compliance with a payment arrangement made in this respect).
b. Claims in respect of work performed or to be performed by Kruitbosch on behalf of the purchaser pursuant to the agreements referred to under (a).
c. Claims for attributable failure to perform the agreements referred to under (a) and/or (b) (including payment of damages, extrajudicial collection costs, interest and any penalties and any other costs).
3. Goods subject to retention of title may be resold by the purchaser in the ordinary course of business, provided the purchaser has also stipulated retention of title on the delivered goods with respect to its customers.
4. As long as the delivered goods are subject to retention of title, the purchaser is not authorised to pledge these goods in any way or to place them under the effective control of a financier.
5. The purchaser is obliged to immediately inform Kruitbosch in writing if third parties claim to have ownership or other rights to the goods subject to retention of title. Furthermore, the purchaser is obliged to inform any seizer, administrator or receiver of Kruitbosch's retention of title.
6. The purchaser is obliged to keep the goods subject to retention of title carefully, separated from similar goods owned by the purchaser or third parties and as identifiable property of Kruitbosch, until it has fulfilled all its obligations towards Kruitbosch.
7. The purchaser shall take out business insurance or contents insurance such that the goods delivered under retention of title are covered at all times and shall allow Kruitbosch inspection of the insurance policy and the corresponding premium payment receipts on demand.
8. If the purchaser acts contrary to the provisions of this article or Kruitbosch invokes the retention of title, the purchaser grants Kruitbosch and its employees in advance the irrevocable right to enter the purchaser's premises and take back the goods delivered under retention of title, without prior notice or notice of default being required. An appeal by Kruitbosch to the retention of title shall not constitute an appeal for dissolution and shall not release the purchaser from any obligation, unless explicitly stated otherwise by Kruitbosch in writing. Kruitbosch reserves the right at all times to claim compensation for damages, as well as the right to terminate the agreement without further notice of default, by means of a written statement.
Article 12: Termination and dissolution
1. Without prejudice to the provisions of the other articles of these general terms and conditions and other rights, Kruitbosch shall be entitled to terminate or dissolve the agreement, without further notice of default and without judicial intervention, by means of a written statement to the purchaser with immediate effect and without being obliged to pay any compensation for damage and/or costs, at the discretion of Kruitbosch, at the time at which the purchaser:
a. Is declared bankrupt or a petition for its bankruptcy has been filed.
b. Applies for (provisional) suspension of payments.
c. Is affected by foreclosure.
d. Is placed under guardianship or administration.
e. Otherwise loses the power of disposal or legal capacity in respect of its assets or parts thereof.
f. Ceases or ceases to exist (including liquidation, dissolution or winding-up) in whole or in part.
g. Is taken over in whole or in part.
2. The purchaser is obliged at all times to inform the receiver or administrator of the (contents of the) agreement and these general terms and conditions.
3. Furthermore, Kruitbosch shall be entitled to dissolve the agreement or have it dissolved if circumstances arise of such a nature that unaltered maintenance of the agreement cannot reasonably be expected.
4. If the agreement is (partially) dissolved, Kruitbosch's claims on the purchaser are immediately due and payable. If Kruitbosch suspends fulfilment of its obligations, it shall retain its claims under the law and the agreement.
5. The purchaser waives the right to rescind the agreement. The purchaser cannot dissolve the agreement under any circumstances, unless Kruitbosch expressly agrees to this in writing. In that case, the purchaser shall owe Kruitbosch compensation to be determined by Kruitbosch. Such compensation shall in any case include all costs already incurred by Kruitbosch and the damage suffered including loss of profit. Kruitbosch shall be entitled to fix the aforementioned compensation in the amount of the originally agreed price.
6. The purchaser shall be liable towards third parties for the consequences of the dissolution as referred to in the previous paragraph and shall indemnify Kruitbosch for any resulting claims of these third parties.
Article 13: Force majeure
1. In the event of force majeure on the part of the purchaser or Kruitbosch, Kruitbosch shall be entitled, without any obligation to pay compensation, to dissolve the agreement in full or in part by means of a written notification to this effect without judicial intervention, or to suspend further performance of the agreement, without prejudice to Kruitbosch's right to payment by the purchaser for services already provided by Kruitbosch.
2. For the purposes of these general terms and conditions, force majeure on the part of Kruitbosch shall in any case mean: all circumstances that arose through no fault or risk on the part of Kruitbosch, as a result of which Kruitbosch is temporarily or permanently unable to fulfil its obligations. This applies inter alia, but not exclusively, in the event of a strike at Kruitbosch or its suppliers, occupation, unforeseeable transport difficulties, war/threat of war, (the threat of) terrorism, fire, water damage, flooding, pandemic, epidemic, revolution, acts of war, unforeseeable government measures, including in any case import and export bans and quota restrictions and operational failures at Kruitbosch or its suppliers, as well as its suppliers and/or subcontractors who fail to meet their obligations in time.and/or subcontractors of Kruitbosch that do not fulfil their obligations in time, as well as disruptions in the supply of energy and/or water to the company of Kruitbosch.
3. If the force majeure situation occurs when the agreement has already been partially executed, the purchaser is obliged to fulfil its obligations towards Kruitbosch up to that time.
Article 14: Suspension
1. Without prejudice to the provisions of other articles of these general terms and conditions, Kruitbosch is authorised to suspend the fulfilment of its obligations or to dissolve the agreement in whole or in part, if:
a. The purchaser does not fulfil or does not fully fulfil its obligations under the agreement.
b. After the agreement has been concluded, circumstances come to Kruitbosch's knowledge which give good reason to fear that the purchaser will not fulfil its obligations.
c. There is a case of bankruptcy, suspension of payments, receivership of the purchaser or a request to that effect.
d. The purchaser is dissolved, ceases to exist by merger or otherwise ceases to exist.
2. Kruitbosch always retains the right to claim damages and immediate payment of what is due to it.
3. If the purchaser requests to suspend the agreed deliveries, all costs incurred by Kruitbosch at that time shall be immediately due and payable and Kruitbosch shall be entitled to charge them to the purchaser. Kruitbosch shall also be entitled to charge the purchaser for all costs incurred or to be incurred during the suspension period.
4. If execution of the agreement cannot be resumed after the agreed suspension period, Kruitbosch shall be entitled to dissolve the agreement, without judicial intervention, by means of a written statement to the purchaser. If execution of the agreement is resumed after the agreed suspension period, the purchaser is obliged to reimburse any costs incurred by Kruitbosch as a result of such resumption.
Article 15: Settlement
1. Kruitbosch shall be entitled to set off all claims it has against the purchaser, regardless of whether these claims are already due and payable, against any claims of the purchaser against Kruitbosch.
2. The purchaser is not allowed to suspend its payment obligations or to set off its claims that it claims to have against Kruitbosch against claims that Kruitbosch has against the purchaser.
Article 16: Applicable law/competent court
1. The agreement entered into between Kruitbosch and the purchaser is exclusively governed by Dutch law, to the exclusion of the Vienna Sales Convention.
2. Any disputes shall be settled exclusively by the competent court of the District Court of Overijssel, location Zwolle, albeit that Kruitbosch always retains the authority to submit the dispute to the competent court in the place where the purchaser is established.