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General Terms and Conditions
General Terms and Conditions of supply and service of KI Kampen, deposited in August 2019 with the Chamber of Commerce and factories.
1. General
1.1. These terms and conditions apply to all purchase and service agreements entered into by us, excluding those articles which by mention or nature apply exclusively to one of the two types of agreements.
1.2. Deviation from the agreed is possible if and insofar as we have communicated or confirmed this in writing.
1.3. The client is the one who instructs us to deliver products or perform services.
1.4. Rights and obligations arising from agreements concluded with us cannot be transferred to third parties by the client without our consent.
1.5. We reserve the right to modify or supplement these terms and conditions in the interim. However, for already accepted orders, the conditions in force on the day the agreement was concluded will always apply.
1.6. The applicability of any general or specific conditions of the client is explicitly rejected.
2. Offers
2.1. Unless stated otherwise, our offers are non-binding and valid for 30 days. An offer containing a deadline can nevertheless be revoked by us, even after receipt of the order, provided this is done within five working days.
2.2. Documentation material sent with the offer or information provided digitally is, unless otherwise described, purely informative and does not bind us.
2.3. We expressly reserve copyright claims on the documentation provided by us. This material may not be provided to third parties. It may only be used within the context of the respective order.
3. Agreement
3.1. An agreement is deemed to have been concluded lawfully after we have confirmed the order or have started the execution.
3.2. An agreement to be concluded electronically is only deemed to have been concluded lawfully when the client has followed the procedure prescribed by us for the respective transaction and the electronically transmitted order has actually reached us.
3.3. Both parties guarantee that all exchanged information about the other party will be treated confidentially, will only be used in the context of this agreement, and will not be made available to a third party.
4. Service Assignments
4.1. Activities that fall outside the service assignment will be billed as additional work.
4.2. If a service agreement is made to be carried out by a specific person, we reserve the right to replace this person with others of equivalent qualifications.
5. Prijzen: Purchase and Service
5.1. General
5.1.1. Unless otherwise stated, all prices are exclusive of VAT and other costs associated with the agreement, such as levies and rates. Prices are expressed in euros, unless otherwise agreed in writing.
5.1.2. We reserve the right to change prices or rates. The client will be informed of this as soon as possible.
5.1.3. The prices given in the offers are based on execution within normal working hours. If, due to reasons not attributable to us, work must be done outside of normal hours, the additional costs associated with this must be borne by the client, unless the order confirmation has taken into account execution outside normal working hours.
5.1.4. All additional costs related to processing the order as an urgent order, as well as costs associated with registered, cash on delivery, and express shipments and courier services, are at the expense of the client.
5.2. Purchase
Unless otherwise stated, our prices are based on delivery from our AI station, depot, or other storage location.
5.3. Service Provision
5.3.1. Price quotes and prices that are charged are: a. based on post-calculation, for which article 5.3.2. applies, or; b. a fixed amount mentioned in the offer or order confirmation, to which section 5.3.3. applies.
5.3.2. If an assignment is carried out on a post-calculation basis, we charge the time spent on the respective assignment multiplied by the agreed rate, plus all costs incurred by us in executing the assignment.
5.3.3. The time we spend on the assignment will be evident from the hours registration maintained by our employees, from which the client can request a specification. The aforementioned hours registration is binding for both parties. We will invoice according to this registration.
5.3.4. An estimated amount in an offer is not binding between parties. If the amount calculated according to article 5.3.2. threatens to exceed the aforementioned estimate by 20% or more, we will immediately notify the client. The client then has the right to modify or cancel the assignment upon payment of our made costs (direct and indirect), calculated as determined in article 5.3.2., provided this happens in writing and within seven days. If the client does not do this, the price calculated in accordance with article 5.3.2. will amount to a maximum of 150% of the estimate.
5.3.5. If a fixed price has been agreed upon, we reserve the right to bill the client for unforeseen (additional) work based on post-calculation as per article 5.3.2., if these activities have become necessary due to circumstances reasonably attributable to the client.
6. Payment, Invoicing
6.1. Payment should be made to a bank account designated by us, within thirty days after the invoice date, unless otherwise indicated in the order confirmation or on the invoice, without any deduction, offset, compensation, or suspension for any reason unless otherwise stated in the agreement.
6.2. We are entitled to invoice after the execution of the entire assignment, or after completing a part of it.
6.3. The client is in default after the expiry of the payment term without the need for a notice of default.
6.4. Without prejudice to any other rights accruing to us, in the event of default, the client owes interest amounting to 1% per month or part thereof, starting from the date the client falls into default.
6.5. All extrajudicial and judicial costs incurred by us in any way if we are involved in a legal procedure against the client, whether claiming or defending, are, if we are proven right, at the expense of the client: the extrajudicial collection costs to be determined according to the collection rate of the Dutch Bar Association, the judicial collection costs to be determined based on the actual amount we paid concerning the procedure, even if this exceeds the liquidated process costs.
7. Commencement/Delivery/Execution Deadlines
7.1. All agreed commencement, delivery, or execution deadlines are not considered strict deadlines, even if expressly accepted by the client. In the event of a delay in delivery or completion, we are only in default after having received a notice of default.
7.2. Deadlines within which the agreed service(s) should be delivered by us will automatically be extended in the event, but not limited to, delays in production or any other temporary hindrance, such as (but not limited to) limited availability of breeding material; in such cases, we will inform the client as soon as possible. Deadlines will also be extended if the client fails in one or more of his obligations towards us or there is a justified fear he will; or if the client does not enable us to execute the agreed upon terms.
8. Delivery, Risk
8.1. Delivery of products takes place when and where the products are ready for shipment at our premises or at a location specified by us.
9. Packaging
We will ensure adequate packaging for all products to be delivered. The genetic material to be delivered is packed by us in a suitable container that remains our property. The client is not allowed to use the packaging materials and container for other purposes; he is obliged to return them as per article 5.1.4.
10. Reservation of Ownership
10.1. Delivery is made under reservation of ownership. This reservation applies to claims for payment for all products delivered or to be delivered by us to the client and/or services provided, as well as claims due to the client's failure to fulfill these agreements.
10.2. In any of the cases described in article 16, we are entitled to retrieve delivered products that remain our property. Such retrieval is considered a termination of the agreement(s) with the client. If necessary, we are irrevocably authorized by the client to remove the relevant products.
10.3. The client is entitled to dispose of the products subject to the reservation of ownership if and insofar as necessary in the context of his normal business operations.
11. Right of Retention
We have the right to suspend the obligation to return a client's item in our possession until our claim relating to that item is fully paid, including interest and costs.
12. Provided Products
12.1. Production resources provided by us, such as (but not limited to) designs, data carriers, genetic material, and software, do not become the property of the client unless explicitly agreed upon. We retain discretion over these products.
12.2. Production resources provided by the client to us will be treated with care by us; however, they remain at the client's risk.
13. Quality Guarantee
13.1. We commit to delivering products or services that meet specifications as expressly agreed upon in writing. Otherwise, delivery conforms to the Dutch standards of good quality.
13.2. For genetic material produced in the Netherlands, we guarantee it meets the requirements and is produced under the supervision of the competent authority. No further guarantees are provided.
14. Client Inspection; Complaints
14.1. We will fulfill our obligations with due care and expertise.
14.2. Complaints about our performance must be communicated to us within eight days of discovery, failing which the client will have no rights against us. This also applies when we handle a complaint out of goodwill.
14.3. The previous article does not apply to sperm delivery. In that case, the client must immediately inspect each insemination and report any defects to us within 48 hours.
14.4. In the event of a valid complaint, we can, at our discretion, either redeliver or compensate, but we are never liable for indirect damages and are not obligated to pay more than stipulated in article 15.
14.5. Processing a complaint does not suspend the client's payment obligation.
14.6. Upon request, the client will provide us or a designated third party with all information required to determine any damages. The client must also make the relevant products available.
14.7. Each delivery or service is considered a separate transaction for the right to complain. Complaints about a specific delivery or service do not affect previous or subsequent ones, regardless of the same agreement.
15. Liability
15.1. Notwithstanding article 14.4, we do not accept liability for unforeseen and uncontrollable gestation periods, quality and health of sperm, embryos, or livestock used in fulfilling our obligations, or damage caused by transmitting diseases to animals.
15.2. In all other cases, we only accept liability in accordance with article 14.4 and only if the damage is covered by our liability insurance in the relevant case.
16. Non-compliance
If the client fails to fulfill any of their obligations towards us, or if they pass away, request suspension of payments or file for bankruptcy; if bankruptcy is requested against them or if their company is shut down, liquidated, or wholly or partly taken over; if any assets are seized, if an out-of-court agreement is offered, or if, pursuant to the relevant provisions of the Coordination Act on Social Insurance, a notification of insolvency has to be made, this shall be considered a substantial reason for us to either suspend the agreement at our discretion or terminate it by means of an extrajudicial declaration, notwithstanding our further rights. In these cases, any claim against the client is immediately and fully due, without us being liable for compensation or warranty. In all cases where the client otherwise seriously has to take into account their inability to fulfill their obligations towards us, they must immediately inform us. Failure to do so will be considered a significant reason as mentioned above.
17. Security provision
During the duration of the agreement, we are entitled to demand security for payment. If this security is not provided to our satisfaction, we have the right to suspend our services until the security is provided within a deadline set by us in writing. If the client fails to provide the required security within the set deadline, we have the right to cancel the agreement for the unperformed part without any judicial intervention. In that case, the entire amount or a part of the invoice amount determined by us based on our performance becomes immediately due, increased by an immediately due penalty of 20%, notwithstanding our rights to performance and/or further compensation.
18. Force majeure
18.1. Force majeure, understood as any circumstance beyond our control and doing, whether foreseeable at the time of entering into the agreement or not, as a result of which we cannot reasonably be expected to fulfill our obligations, gives us the right to suspend our obligations. Force majeure includes, but is not limited to, lack of genetic material, factory or transport disruptions of any kind, strikes, exclusion or lack of staff, quarantine, epidemics, mobilization, state of siege, war, riots, hindered or closed supply, default of third parties engaged by us for the execution of the agreement, as well as all obstacles caused by government measures. The same circumstances concerning our suppliers or experts engaged by us also fall under this provision.
18.2. In case of force majeure on our side, we will inform the client as soon as possible about whether executing the assignment is still possible and, if so, within which period.
18.3. If there is a lack of (sufficient) genetic material, we have the right to offer the client an alternative of comparable quality.
18.4. If performance is not permanently impossible but cannot be resumed within three months, both parties are entitled to terminate the agreement by notifying the other party in writing, without either party being entitled to compensation. For the part of the agreement already executed by us, the client remains obliged to pay.
19. Partial nullity
If one or more provisions of this agreement with the client prove to be partially or fully void, the remaining provisions remain in full force. A suitable arrangement, which approximates the intentions of the parties and the economic result they pursue in a legally effective manner as closely as possible, will apply in place of the invalid provisions.
20. Place of performance, applicable law, disputes, competent court
21.1. The place where the client must fulfill their obligations towards us is our place of business.
21.2. All our agreements are governed by Dutch law.
21.3. If a dispute related to (a breach in) the execution of an agreement cannot be resolved through consultation between the parties, the parties will endeavor to resolve the dispute through mediation in accordance with the regulations of the Dutch Mediation Institute, as it reads on the date of signing this agreement.
21.4. If it proves impossible to resolve a dispute as mentioned above through mediation, the dispute will be submitted, at our choice, to the competent court of our place of business or that of the client. In case of disputes initiated by the client, the competent court is that of our place of business. This provision does not affect the ability to file a counterclaim before the court where the case is pending.
21.5. Dutch law governs all agreements.
Dalfsen, augustus 2019