In the (remote) agreement, "Entrepreneur" means: waterpompspecialist.nl. This is a trade name of Kempkes, located at 5674TL, at Huufkes 81F in Nuenen, the Netherlands. Chamber of Commerce number: 55414907 and VAT identification number: NL001757636B12.
Contact details: Kempkes Waterpompen De Huufkes 81F 5674TL, Nuenen The Netherlands
These terms and conditions apply to every offer, quotation, and agreement between "Entrepreneur" and a Counterparty to which the Entrepreneur has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
The present terms and conditions also apply to follow-up or partial orders resulting from the agreement.
The present terms and conditions also apply to agreements with the Entrepreneur, for the execution of which the Entrepreneur must involve third parties.
These general terms and conditions are also written for the employees of the Entrepreneur and its management.
The applicability of any purchasing or other conditions of the Counterparty is expressly rejected.
If one or more provisions in these general terms and conditions are at any time wholly or partially void or should be annulled, the other provisions in these general terms and conditions remain fully applicable. The Entrepreneur and the Counterparty will then enter into consultations to agree on new provisions to replace the void or annulled provisions, taking into account as much as possible the purpose and intent of the original provisions.
If there is uncertainty regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation must take place 'in the spirit' of these provisions.
If a situation arises between parties that is not regulated in these general terms and conditions, this situation must be assessed in the spirit of these general terms and conditions.
If the Entrepreneur does not always require strict compliance with these conditions, this does not mean that the provisions thereof are not applicable, or that the Entrepreneur would lose the right in any way to require strict compliance with the provisions of these conditions in other cases.
Article 2 Applicability
These general terms and conditions apply to every offer from the Entrepreneur and to every (remote) agreement concluded between the Entrepreneur and the Counterparty.
Before the (remote) agreement is concluded, the text of these general terms and conditions will be made available to the Entrepreneur. If this is not reasonably possible, the Entrepreneur will indicate, before the (remote) agreement is concluded, how the general terms and conditions can be viewed at the entrepreneur's premises and that they will be sent free of charge as soon as possible at the request of the Counterparty.
If the remote agreement is concluded electronically, notwithstanding the previous paragraph and before the remote agreement is concluded, the text of these general terms and conditions can be made available to the Counterparty electronically in such a way that it can be easily stored by the Counterparty on a durable data carrier. If this is not reasonably possible, it will be indicated before the remote agreement is concluded where the general terms and conditions can be accessed electronically and that they will be sent electronically or otherwise free of charge at the request of the Counterparty.
In the event that specific product or service conditions apply in addition to these general terms and conditions, the second and third paragraphs of this article apply accordingly, and the Counterparty can always rely on the applicable provision that is most favorable to them in the event of conflicting conditions.
Article 3 Quotations and Offers
The offer contains a full and accurate description of the products offered. The description is sufficiently detailed to allow a proper assessment of the offer by the Counterparty. If the Entrepreneur uses images, these are a true representation of the products offered. Obvious mistakes or manifest errors in the offer do not bind the Entrepreneur.
Each offer contains such information that it is clear to the Counterparty what the rights and obligations are that are attached to the acceptance of the offer.
All quotations and offers from the Entrepreneur are without obligation, unless a period for acceptance is stated in the quotation. A quotation or offer expires if the product to which the quotation or offer relates has become unavailable in the meantime.
The Entrepreneur cannot be held to his quotations or offers if the Counterparty can reasonably understand that the quotations or offers, or a part thereof, contain an obvious mistake or clerical error.
The prices stated in a quotation or offer in the webshop include VAT. Any other government levies, as well as any costs to be incurred in the context of the agreement, including shipping and administration costs, are stated separately from the product prices. Quotations or offers that are not created via the webshop, but in another way, are exclusive of VAT.
If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, the Entrepreneur is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the Entrepreneur indicates otherwise.
A composite price quotation does not oblige the Entrepreneur to perform a portion of the assignment for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 4 Contract Duration; Delivery Times, Execution and Amendment of Agreement; Price Increase
The agreement between the Entrepreneur and the Counterparty is concluded, subject to the provisions of paragraph 4.2, at the moment of acceptance by the Counterparty of the offer and compliance with the conditions set therein.
If the Counterparty has accepted the offer electronically, the Entrepreneur will immediately confirm receipt of the acceptance of the offer electronically. As long as the receipt of this acceptance has not been confirmed by the Entrepreneur, the Counterparty may dissolve the agreement.
The Entrepreneur can – within legal frameworks – inform himself whether the Counterparty can meet his payment obligations, as well as all those facts and factors that are important for a responsible conclusion of the remote agreement. If the Entrepreneur has good grounds based on this investigation not to enter into the agreement, he is entitled to refuse an order or application or to attach special conditions to the execution.
Every agreement is entered into under the suspensive condition of sufficient availability of the products concerned.
The agreement between the Entrepreneur and the Counterparty is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or if the parties explicitly agree otherwise in writing.
The Entrepreneur will observe the greatest possible care when receiving and executing orders for products.
The address that the Counterparty has made known to the Entrepreneur serves as the place of delivery.
If a period has been agreed or specified for the delivery of certain items, this is never a strict deadline. If a period is exceeded, the Counterparty must therefore give the Entrepreneur written notice of default. The Entrepreneur must be offered a reasonable period to still perform the agreement.
Regarding the delivery of products to consumers: - the Entrepreneur will execute accepted orders with convenient speed but no later than within 30 days, unless another delivery period has been agreed. If delivery is delayed, or if an order cannot be executed or can only be partially executed, the consumer will be notified of this no later than 30 days after placing the order. In that case, the consumer has the right to dissolve the agreement without costs and the right to any compensation. - After this dissolution, the Entrepreneur will immediately repay the amount paid by the consumer. - the risk of damage and/or loss of products rests with the Entrepreneur until the moment of delivery to the consumer or a representative designated in advance and made known to the Entrepreneur, unless expressly agreed otherwise.
The Entrepreneur has the right to have certain activities performed by third parties.
The Entrepreneur is entitled to execute the agreement in various phases and to invoice the part thus executed separately.
If the agreement is executed in phases, the Entrepreneur may suspend the execution of those parts belonging to a subsequent phase until the Counterparty has approved the results of the preceding phase in writing.
If the Entrepreneur requires data from the Counterparty for the execution of the agreement, the execution period does not commence until after the Counterparty has made this data correctly and completely available to the Entrepreneur.
If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement it, the parties will proceed to adjust the agreement timely and in mutual consultation. If the nature, scope, or content of the agreement is changed, whether or not at the request or instruction of the Counterparty, the competent authorities, etc., and the agreement is thereby changed qualitatively and/or quantitatively, this may have consequences for what was originally agreed. As a result, the originally agreed amount may be increased or decreased. The Entrepreneur will provide a price quote for this in advance as much as possible. An amendment to the agreement may change the originally stated period of execution. The Counterparty accepts the possibility of an amendment to the agreement, including the change in price and execution period.
If the agreement is amended, including a supplement, the Entrepreneur is entitled to only execute it after approval has been given by the authorized person within the Entrepreneur and the Counterparty has agreed to the price and other conditions stated for the execution, including the time then to be determined at which it will be executed. Failure to execute or not immediately execute the amended agreement does not constitute a breach of contract by the Entrepreneur and is no ground for the Counterparty to terminate the agreement.
Without being in default, the Entrepreneur may refuse a request to amend the agreement if this could have consequences in qualitative and/or quantitative terms, for example, for the work to be performed or items to be delivered in that context.
If the Counterparty should default in the proper fulfillment of what he is bound to towards the Entrepreneur, then the Counterparty is liable for all damage (including costs) incurred directly or indirectly on the part of the Entrepreneur as a result.
If the Entrepreneur agrees on a certain price when concluding the agreement, the Entrepreneur is nevertheless entitled to increase the price under the following circumstances, even if the price was not originally stated subject to reservation: - If the price increase is the result of an amendment to the agreement; - if the price increase arises from a power belonging to the Entrepreneur or an obligation resting on the Entrepreneur under the law; - In other cases, with the understanding that the Counterparty who is not acting in the exercise of a profession or business is entitled to dissolve the agreement by a written statement if the price increase is more than 10% and takes place within three months after the conclusion of the agreement, unless the Entrepreneur is then still willing to execute the agreement based on what was originally agreed, or if it was stipulated that the delivery will take place more than three months after the purchase.
Notwithstanding the previous paragraph, the Entrepreneur may offer products whose prices are linked to fluctuations in the financial market and over which the Entrepreneur has no influence, with variable prices. This link to fluctuations and the fact that any stated prices are target prices will be stated with the offer.
Article 5 Suspension, Dissolution and Interim Termination of the Agreement
The Entrepreneur is authorized to suspend the fulfillment of the obligations or to dissolve the agreement immediately and with direct effect if: - the Counterparty does not, not fully, or not timely fulfill the obligations under the agreement; - circumstances come to the knowledge of the Entrepreneur after the conclusion of the agreement that give good ground to fear that the Counterparty will not fulfill the obligations; - the Counterparty was requested when concluding the agreement to provide security for the fulfillment of his obligations under the agreement and this security is not provided or is insufficient; - if, due to the delay on the part of the Counterparty, the Entrepreneur can no longer be required to fulfill the agreement against the originally agreed conditions, the Entrepreneur is entitled to dissolve the agreement; - if circumstances arise of such a nature that fulfillment of the agreement is impossible or unchanged maintenance of the agreement cannot reasonably be required of the Entrepreneur.
If the dissolution is attributable to the Counterparty, the Entrepreneur is entitled to compensation for the damage, including costs, incurred directly and indirectly as a result.
If the agreement is dissolved, the Entrepreneur's claims against the Counterparty are immediately due and payable. If the Entrepreneur suspends the fulfillment of the obligations, he retains his claims under the law and the agreement.
If the Entrepreneur proceeds to suspension or dissolution on the grounds mentioned in this article, he is in no way held to compensate for damage and costs incurred in any way as a result, while the Counterparty, due to breach of contract, is obliged to pay compensation or indemnification.
In the event of liquidation, of (application for) a moratorium or bankruptcy, of seizure - if and insofar as the seizure has not been lifted within three months - at the expense of the Counterparty, of debt restructuring or another circumstance whereby the Counterparty can no longer freely dispose of his assets, the Entrepreneur is free to terminate the agreement immediately and with direct effect or to cancel the order or agreement, without any obligation on his part to pay any compensation or indemnification. The Entrepreneur's claims against the Counterparty are in that case immediately due and payable.
If the Counterparty cancels a placed order in whole or in part, the items ordered or prepared for it, increased by any removal and delivery costs thereof and the labor time reserved for the execution of the agreement, will be charged in full to the Counterparty.
Article 6 Force Majeure
The Entrepreneur is not obliged to fulfill any obligation towards the Counterparty if he is hindered from doing so as a result of a circumstance that is not due to fault, and is not for his account under the law, a legal act, or generally accepted practice.
In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in the law and jurisprudence, all external causes, foreseen or unforeseen, over which the Entrepreneur cannot exercise influence, but as a result of which the Entrepreneur is unable to fulfill his obligations. The Entrepreneur also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after the Entrepreneur should have fulfilled his commitment.
The Entrepreneur may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without obligation to compensate the other party for damage.
If the Entrepreneur has already partially fulfilled his obligations under the agreement at the time of the occurrence of force majeure or will be able to fulfill them, and independent value is attributed to the part fulfilled or to be fulfilled respectively, the Entrepreneur is entitled to invoice the part already fulfilled or to be fulfilled separately. The Counterparty is held to pay this invoice as if it were a separate agreement.
Article 7 Payment and Collection Costs
Payment must always be made immediately upon ordering in the currency in which the invoice was made, unless otherwise indicated in writing by the Entrepreneur. The Entrepreneur is entitled to invoice periodically.
The Counterparty has the duty to report inaccuracies in provided or stated payment details to the Entrepreneur immediately.
If the Counterparty fails to pay an invoice in a timely manner, the Counterparty is in default by operation of law. The Counterparty will then owe interest. In the case of a consumer purchase, the interest is equal to the statutory interest rate. In other cases, the Counterparty owes the statutory commercial interest. The interest on the amount due will be calculated from the moment the Counterparty is in default until the moment of payment of the full amount due.
The Entrepreneur has the right to have the payments made by the Counterparty serve in the first place to reduce the costs, then to reduce the interest due, and finally to reduce the principal sum and the current interest.
The Entrepreneur can, without being in default, refuse an offer of payment if the Counterparty designates a different order for the allocation of the payment. The Entrepreneur can refuse full repayment of the principal sum if the interest due and current interest and collection costs are not also paid.
Objections to the amount of an invoice do not suspend the payment obligation.
If the Counterparty is in default or in breach of the (timely) fulfillment of his obligations, the Entrepreneur is allowed to charge extrajudicial collection costs. These collection costs amount to a maximum of: 15% on the outstanding amount up to €2,500. This with a minimum of €40. 10% on the following €2,500. 5% on the following €5,000 and 1% on the following €190,000.
The Counterparty also owes the statutory commercial interest on the collection costs due.
If, however, the Entrepreneur has incurred higher costs for collection that were reasonably necessary, the costs actually incurred are eligible for compensation. Any judicial and execution costs incurred will also be recovered from the Counterparty. The Counterparty also owes interest on the collection costs due.
The Counterparty is in no case entitled to set off the amount owed by him to the Entrepreneur.
The customer has the duty to report inaccuracies in provided or stated payment details to the Entrepreneur immediately.
Article 8 Retention of Title
All items delivered by the Entrepreneur in the context of the agreement remain the property of the Entrepreneur until the Counterparty has properly fulfilled all obligations under the agreement(s) concluded with the Entrepreneur.
Items delivered by the Entrepreneur that fall under the retention of title pursuant to paragraph 7.1. may be resold by a business Counterparty (not being a consumer) in the context of normal business operations, provided that the Counterparty has stipulated a retention of title on the delivered items with its customers. The Counterparty is not authorized to pledge or in any other way encumber the items falling under the retention of title.
The Counterparty must always do everything that can reasonably be expected of him to secure the property rights of the Entrepreneur.
If third parties seize the items delivered under retention of title or wish to establish or assert rights thereto, the Counterparty is obliged to inform the Entrepreneur immediately.
The Counterparty undertakes to insure and keep insured the items delivered under retention of title against fire, explosion, and water damage as well as against theft and to provide the policy of this insurance for inspection to the Entrepreneur upon first request. In the event of any insurance payout, the Entrepreneur is entitled to these funds. Insofar as necessary, the Counterparty undertakes towards the Entrepreneur in advance to provide his cooperation to everything that might (appear to) be necessary or desirable in that context.
In the event that the Entrepreneur wishes to exercise his property rights indicated in this article, the Counterparty gives unconditional and irrevocable permission in advance to the Entrepreneur and third parties to be designated by the Entrepreneur to enter all those places where the Entrepreneur's properties are located and to take those items back.
Article 9 Guarantees, Investigation and Complaints
The items to be delivered by the Entrepreneur meet the usual requirements and standards that can reasonably be set at the moment of delivery and for which they are intended for normal use in the Netherlands. The Counterparty must check this himself. The guarantee mentioned in this article applies to items intended for use within the Netherlands. For use outside the Netherlands, the Counterparty must verify himself whether the use thereof is suitable for use there and whether they meet the conditions set for it. In that case, the Entrepreneur may set other guarantee and other conditions regarding the items to be delivered or work to be performed.
The guarantee mentioned in paragraph 1 of this article applies for a period of 6 months after delivery, unless the nature of the delivered items dictates otherwise or parties have agreed otherwise. If the guarantee provided by the Entrepreneur concerns an item produced by a third party, the guarantee is limited to that provided by the producer of the item, unless stated otherwise. After the guarantee period expires, all costs for repair or replacement, including administration, shipping, and call-out costs, will be charged to the Counterparty.
The Counterparty can also claim the factory warranty offered by the producer of products.
Any form of guarantee expires if a defect has arisen as a result of or arises from improper or inappropriate use thereof or use after the expiration date, incorrect storage or maintenance by the Counterparty and/or by third parties when, without written permission from the Entrepreneur, the Counterparty or third parties have made changes to the item or have tried to make changes, other items were attached to it that should not be attached, or if they were processed or treated in a manner other than prescribed. The Counterparty is also not entitled to a guarantee if the defect is caused by or is the result of circumstances beyond the Entrepreneur's influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), etc.
The Counterparty is held to examine the delivered goods (or have them examined) immediately at the moment the items are made available to him or the relevant activities have been carried out. In doing so, the Counterparty should investigate whether the quality and/or quantity of the delivered goods corresponds with what was agreed and meets the usual requirements and standards that parties have agreed upon in this regard. Any defects must be reported to the Entrepreneur in writing within two months after discovery. The notification must contain a description of the defect as detailed as possible, so that the Entrepreneur is able to respond adequately. The Counterparty must offer the Entrepreneur the opportunity to investigate a complaint (or have it investigated).
If the Counterparty complains in a timely manner, this does not suspend his payment obligation. In that case, the Counterparty also remains obliged to accept and pay for the other items ordered, unless they have no independent value.
If a defect is reported later, the Counterparty no longer has the right to repair, replacement, or compensation.
If it is established that an item is defective and a complaint was made in a timely manner, the Entrepreneur will replace the defective item within a reasonable period after receiving the return or, if returning is reasonably not possible, after written notification regarding the defect by the Counterparty, at the choice of the Entrepreneur, or ensure its repair or pay a replacement fee to the Counterparty. In the event of replacement, the Counterparty is held to return the replaced item to the Entrepreneur and to provide ownership thereof to the Entrepreneur, unless the Entrepreneur indicates otherwise.
If it is established that a complaint is unfounded, the costs incurred as a result, including the investigation costs on the part of the Entrepreneur, will be borne entirely by the Counterparty.
Article 10 Liability
If the Entrepreneur should be liable, this liability is limited to what is regulated in this provision.
The Entrepreneur is not liable for damage of any nature whatsoever caused by the Entrepreneur having assumed incorrect and/or incomplete data provided by or on behalf of the Counterparty.
The Entrepreneur is exclusively liable for direct damage.
Direct damage is exclusively understood to mean: - the reasonable costs to determine the cause and the extent of the damage, insofar as the determination relates to damage in the sense of these conditions; - any reasonable costs incurred to have the Entrepreneur's defective performance comply with the agreement, insofar as these can be attributed to the Entrepreneur; - reasonable costs incurred to prevent or limit damage, insofar as the Counterparty demonstrates that these costs led to the limitation of direct damage as referred to in these general terms and conditions.
The Entrepreneur is never liable for indirect damage, including consequential damage, lost profit, missed savings, and damage due to business or other stagnation. In the case of a consumer purchase, this limitation does not extend beyond what is permitted under Article 7:24 paragraph 2 of the Dutch Civil Code (BW).
If the Entrepreneur should be liable for any damage, the Entrepreneur's liability per event (where a series of related events is seen as one event) is limited to a maximum of three times the invoice value of the order, or at least to that part of the order to which the liability relates.
The Entrepreneur's liability is in any case always limited to the amount of the payout from his insurer in the occurring case.
The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of the Entrepreneur or his management subordinates.
Article 11 Limitation Period
Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against the Entrepreneur and the third parties involved by the Entrepreneur in the execution of an agreement is one year.
The provisions of paragraph 1 do not apply to legal claims and defenses based on facts that would justify the assertion that the delivered item would not comply with the agreement. Such claims and defenses prescribe after the expiry of two years after the Counterparty has notified the Entrepreneur of such non-conformity.
Article 12 Transfer of Risk
The risk of loss, damage, or depreciation passes to the Counterparty at the moment items are brought under the Counterparty's control. This also includes the transfer of goods to a carrier chosen by the Counterparty.
Article 13 Indemnification
The Counterparty indemnifies the Entrepreneur against any claims by third parties who suffer damage in connection with the execution of the agreement and the cause of which is attributable to parties other than the Entrepreneur.
If the Entrepreneur should be addressed by third parties for that reason, the Counterparty is held to assist the Entrepreneur both extrajudicially and in court and to immediately do everything that can be expected of him in that case. Should the Counterparty fail to take adequate measures, the Entrepreneur is entitled, without notice of default, to proceed to do so himself. All costs and damage on the part of the Entrepreneur and third parties incurred as a result will be entirely at the expense and risk of the Counterparty.
Article 14 Applicable Law and Disputes
To all legal relationships to which the Entrepreneur is a party, only Dutch law is...
