GENERAL TERMS AND CONDITIONS OF KONFLEX B.V., SALE AND DELIVERY OF MOVABLE GOODS, version June 2018
Offer: The offer made by or on behalf of Konflex, in whatever form, including, but not limited to, tenders, price quotations and proposals.
General Terms and Conditions: The present set of general terms and conditions.
Konflex: the user of these General Terms and Conditions, Konflex B.V., based in Ingen, the Netherlands, being a trading company and not a manufacturer, that
enters into an Agreement with Buyer.
Defect: The failure of the Product to fulfil the Agreement.
Buyer: The party that, in the practice of an occupation or profession, enters into an agreement with Konflex for the purchase of the Product.
Delivery Time/Implementation Period: The period agreed upon between Konflex and Buyer in which the Product must be delivered or in which the Agreement must be implemented by Buyer and Konflex.
Order: The acceptance by Buyer of the Offer from Konflex.
Agreement: The agreement entered into between Buyer and Konflex with regard to the sale, purchase and delivery of the Product to which these General Terms and Conditions apply.
Parties: Konflex and Buyer jointly.
Price: The amount to be paid for the Product by Buyer to Konflex.
Product: The movable item to be delivered by Konflex to Buyer based on the Agreement.
2 Applicability and interpretation
2.1 In the event of conflict, the Agreement shall prevail over these General Terms and Conditions.
2.2 These terms and conditions apply to any (invitations to submit an) Offer, acceptance, assignment, confirmation, Agreement and agreement between Konflex and the Buyer, as well as to all legal and other relationships between parties arising from or otherwise corresponding to them.
2.3 Every reference by the Buyer to their own purchasing conditions or other terms and conditions are expressly rejected by Konflex.
2.4 In the event of nullity or annulment of one or more provisions of these General Terms and Conditions or they lose their validity in any other way, the other provisions will remain in full force and effect. In that case, the first-mentioned provision(s) will be replaced with a valid provision that is as consistent as possible with the purpose and the intent of these provisions.
3 Offer, creation and amendment
3.1 Unless expressly stated otherwise, every Offer made by Konflex is non-binding and will be made under the suspensive terms and conditions that the creditworthiness of Buyer has been proved to the satisfaction of Konflex and/or payment by Buyer has been guaranteed with sufficient certainty.
3.2 If an Offer is accompanied by estimates, plans, catalogues and/or other documents, these documents shall at all times remain the property of Konflex and must be returned to Konflex upon first request. Without the express written permission of Konflex, the documents may not be copied, nor made available to third parties for examination.
3.3 The Agreement is concluded when Buyer accepts Konflex’s Offer by means of the Order.
3.4 Amendment of the Agreement is only binding for Konflex if Konflex accepts these amendments in writing.
3.5 The implementation period specified originally can be changed as a result of an amendment to the Agreement. Konflex can refuse a request to amend the Agreement without being in default as a result.
3.6 If Buyer makes data, drawings, information and so on available to Konflex, Konflex can assume their accuracy and will base its Offer on this information.
3.7 Konflex cannot be held to its Offer if the Buyer can or should have reasonably understood that the Offer, or a part thereof, contains an obvious mistake or error.
3.8 Konflex cannot be bound by information provided by them, such as, but not limited to, price lists, brochures, folders and websites insofar as that information is not explicitly referred to in an Offer.
3.9 An Offer from Konflex does not constitute an obligation for Konflex to make delivery of a portion of the Offer at the Price for the proportionate share of the full specified Price.
4.1 All prices charged by Konflex are exclusive of:
4.1.a sales tax (VAT) and other levies imposed by the authorities,
4.1.b any expenses incurred in the context of the (implementation of the) Agreement, including travel and accommodation costs, shipping and handling costs and import costs (also including the costs as specified in Article 9.3 of these General Terms and Conditions), as these apply at the time of the implementation of the Agreement, unless indicated otherwise in writing.
4.2 Unless agreed upon otherwise in writing, all prices are in euros.
4.3 If a Price has already been agreed upon at the time the Agreement was entered into and then one or more cost factors experience an increase, Konflex can increase the agreed-upon Price correspondingly and charge that amount to Buyer.
4.4 Konflex reserves the right to charge Buyer for the extra costs that are not anticipated at the time of the entry into of the Agreement.
5 Payment or down payment and default
5.1 Payment of invoices must be made within 30 days after the invoice date, without deductions or withholdings, by deposit in or transfer to a bank account or bank accounts specified by Konflex. Payment of an amount has been made as of the moment that this payment is credited to the bank account of Konflex.
5.2 The payment periods used by Konflex are final deadlines.
5.3 Konflex can specify additional terms and conditions for payment, such as that full or partial advance payment of the invoice must be made as of the time of the conclusion of the Agreement and/or prior to delivery of the Product and/or shipping of the Product, where Konflex determines what percentages of the Price and during what phase of implementation of the Agreement these percentages of the Price must be paid in advance. Konflex can also reserve the right to only make delivery and/or to ship at such time that Buyer has made payment.
5.4 If Buyer does not make payment (on time), Buyer shall be in default by operation of law. Buyer will then be charged the statutory commercial interest or interest of 1.5% over the invoice amount (where a portion of a month will be considered an entire month), depending on which of the above-mentioned interest rates is higher at the moment that Buyer is in default, to be paid monthly.
5.5 Konflex shall at all times have the right to demand advance payment, immediate payment or provision of security under suspension of his delivery obligation, for the fulfilment of all of Buyer’s payment obligations to Konflex. Buyer must comply with this request immediately, failing which Buyer shall immediately be in default without notice of default being required.
5.6 By way of derogation from the preceding, all of that which Buyer owes as of that moment to Konflex is payable immediately and in full if:
5.6.a If Buyer fails to fulfil its obligations pursuant to the Agreement, or if Konflex has serious doubts in that regard, of if the Buyer cannot (or no longer) reasonably be considered capable of meeting its obligations pursuant to the Agreement;
5.6.b A request is made for debt restructuring, admission to a debt rescheduling arrangement under the Natural Persons Debt Rescheduling Act, declaration of bankruptcy or dissolution of the Buyer or Buyer’s company;
5.6.c Buyer reaches the decision to request its own bankruptcy or liquidation of its company;
5.6.d With regard to the Buyer or a portion of the Buyer’s assets, a request is submitted to appoint a liquidator, administrator or mentor and/or such a request is honored;
5.6.e The Buyer has requested or been granted suspension of payment;
5.6.f If upon issue, transfer or transmission of shares in the capital of the company to which the Buyer has subscribed by the transfer of voting right to those shares as a result of merger or division, when subscribing to shares, or otherwise, control over the company’s activities held by the Buyer transfers to one or more other parties, pursuant to the Merger Code 2015 of the Social and Economic Council (SER), regardless or whether those rules of conduct apply to the acquisition in question;
5.6.g A request to issue a seizure order on assets or securities of the Buyer is submitted, or such a seizure order is in fact issued;
5.6.h The Buyer is a natural person and has died or has been declared permanently occupationally disabled;
5.6.i The Buyer’s business activities are ceased;
5.6.j The Buyer implements its plan to offer an arrangement/agreement with creditors to avert a bankruptcy, a suspension of payment, debt restructuring or debt assistance.
5.7 If Buyer does not make (prompt) payment, Buyer will owe Konflex extrajudicial collection expenses in conformity with the Extrajudicial Collection Costs Act and the corresponding decision.
5.8 In addition to the extrajudicial costs, Buyer will also owe the actual legal expenses to be incurred by Konflex in connection with the collection procedure.
6 Delivery Time
6.1 Konflex will determine the estimated Delivery Time and/or Completion Period; this is therefore indicative and will never mean a final deadline. Konflex reserves the right to make interim changes to the Delivery Time and/or Completion Period.
6.2 When establishing the Delivery Time and/or Completion Period, Konflex assumes that they can implement the Agreement under the conditions that they reasonably should have been aware of at the time of this determination.
6.3 In case of a change in the conditions as they were reasonably known to Konflex when the Delivery Time and/or Completion Period was agreed upon, Konflex has the right to extend the Delivery Time and/or Completion Period to include the time that is reasonably required to implement the Agreement under these changed conditions.
6.4 The changing of the Delivery Time and/or Completion Period does not grant Buyer the right to full or partial dissolution of the Agreement, unless the scope of the change is significant. In that case, Buyer can dissolve the Agreement by sending written notification with proof of receipt to Konflex. Insofar as applicable, Buyer will then have the right to repayment of the portion of the Price already paid for the Product.
6.5 Unless expressly agreed otherwise in writing, exceeding or interim adjustment of the agreed-upon Delivery Time and/or Completion Period will never give rise to any right to compensation.
7 Risk transfer
7.1 Unless expressly agreed otherwise in writing, delivery of the Product will be made Ex Works in conformance with the Incoterms 2010. Immediately after the Product has been delivered, Buyer bears the risk for all direct and/or indirect damage that occurs to or by the Product, except insofar as the damage is the result of an intentional act or deliberate recklessness on the part of Konflex.
7.2 If the transport of the Product is carried out by or through the mediation of Konflex, Buyer must ensure and guarantee the proper, complete and satisfactory receipt equipment, as well as qualified personnel, and Buyer must guarantee that storage areas or other areas in which or where the Product must be unloaded are accessible unimpeded and without risks.
7.3 Buyer is subject to a purchase obligation. If a Product offered by Konflex is not or cannot be purchased due to circumstances that cannot be attributed to Konflex, then Konflex has the right, at its own sole discretion, to store and/or sell the Product to third parties or, if storage and/or sale cannot be reasonably expected of Konflex, to destroy the Product or have the Product destroyed. All costs, as well as any capital loss, shall be borne by Buyer. This would not prejudice any other rights of Konflex towards Buyer.
8 Retention of title, accession, conversion, confusion, pledge and right of retention
8.1 The Product delivered and still to be delivered by Konflex remains the property of Konflex until full payment has been made of all of that which Buyer owes or will owe pursuant to the Agreement or any other agreement or legal relationship, including all claims due to failure to fulfil such agreements or legal relationships.
8.2 Any Product delivered or to be delivered by Konflex that falls under the retention of title pursuant to paragraph 1 can only be resold in the context of Buyer’s normal business process.
8.3 If Buyer fails to fulfil its obligations towards Konflex or if there is a well-founded fear that this will be the case, Konflex will have the right to remove the Product that is subject to the retention of title specified in paragraph 1 of this article (or have this Product removed) from (and with the cooperation of) Buyer of from third parties that are holding the Product for Buyer.
8.4 The provisions in paragraph 3 of this article do not prejudice the right of Konflex to full compensation.
8.5 Buyer is required to:
8.5.a insure and keep insured the Products delivered under retention of title against the usual risks. This includes, for example, damage due to theft, water, fire and explosion;
8.5.b provide the original policy of the insurance referred to under a of this paragraph upon the first request from or on behalf of Konflex for inspection and to make or provide copies of this policy;
8.5.c to pledge all Buyer’s claims pursuant to the insurance under a of this article to Konflex;
8.5.d to hold the Product delivered under retention of title with due diligence for as long as full payment of the delivered Product has not taken place and to ensure that the Product remains undamaged.
8.6 Buyer is required to mark the Product delivered under retention of title as being the property of Konflex.
8.7 If Buyer forms a new product (in part) from the Product delivered by Konflex, Buyer will only form that item for Konflex and Buyer will retain the newly formed item for Konflex until Buyer has paid Konflex all of the amounts owed pursuant to the Agreement. In that case, until such time as Buyer has made full payment, Konflex retains all rights as owner of the newly formed item.
8.8 The Product delivered by Konflex to Buyer, in the context of the fulfilment of the generally accepted practice, with regard to accession or merger as laid out in Articles 5:14 and 5:15 Dutch Civil Code, has the right to be considered a main item.
8.9 Buyer is required to grant its cooperation in every way to all reasonable measures that Konflex wishes to take with regard to the Product to protect its property right and not to unreasonably hinder Buyer in their normal business operations.
8.10 Buyer undertakes in advance – by way of security for all claims (and future claims) that Konflex has or shall obtain against Buyer outside of this or similar agreements – to cooperate, upon first request from Konflex, in the pledge of the Product or the new item as specified in paragraph 7 of this article to Konflex. Buyer undertakes to grant unconditional cooperation in this context to fulfil the establishment requirements for a legally valid lien.
8.11 It is not possible to establish or have established a lien and/or any other right and/or to initiate its own seizure of the Product that, pursuant to paragraph 1 of this article, falls under the retention of title. This prohibition has an effect on the power of disposition as specified in Article 3:83 in conjunction with Article 3:98 DCC. Buyer is required to actively inform relevant third parties, such as but not limited to financers, regarding the foregoing. Buyer is required to inform Konflex as soon as they know and/or should have suspected that a third party wants to establish a lien and/or any other claim, including an attachment (or third party attachment) and/or seizure and/or believes to have obtained this.
8.12 Konflex can exercise the right of retention on the good/goods made available by Buyer to Konflex for the purpose of the implementation of the Agreement, if and for as long as:
8.12.a Buyer does not (entirely) pay the Price to Konflex; and/or
8.12.b Buyer does not pay Konflex the Price (or not the full price) and other costs of Services provided previously by Konflex; and/or
8.12.c Buyer does not fulfil (or does not entirely fulfil) the other obligations arising from the Agreement.
Obligations of Buyer
9.1 Buyer shall ensure and guarantees the suitability, accuracy and completeness of the relevant information provided to Konflex in the context of the Agreement, including for example dimensions, calculations and drawings.
9.2 Buyer is required to take all measures and/or to follow all directions that are required for the use of the Product and that contribute to the sustainability and safety of the Product. This relates, among other things, to all of the measures and directions that are specified by Konflex or that are included in the manuals and/or instruction materials provided by Konflex.
9.3 For export deliveries, in which Konflex carries out the transport itself, or has the export carried out by third parties, Buyer is responsible for providing information for preparing the export documents, the compliance with import regulations, Customs formalities, import duties, import taxes, the unloading, local storage, insurance and transport to the local final destination, and all of the costs and risks arising from the above-mentioned items are at the risk and expense of the Buyer.
10.1 Konflex will guarantee that, at the time of delivery, the Product meets the applicable quality requirements and that the Product is suitable for the purpose for which it is intended to be used.
10.2 If and insofar as with regard to the Product a supplier is obliged towards Konflex to any form of guarantee, the guarantee granted by Konflex in paragraph 1 of this article shall never exceed the guarantee granted by this supplier.
10.3 If Buyer is of the opinion that the requirements specified in Article 10 paragraph 1 and paragraph 2 are not fulfilled, Buyer must act in conformance with Article 11 of these General Terms and Conditions. If in that case Konflex determines that the complaint is well founded, Konflex will act in conformity with the provisions in paragraph 4 of this article, but only if Buyer demonstrates that this Defect in the Product has been caused by improper manufacture, construction or processing of the Product, or due to the use of unsound materials, raw materials and auxiliary materials by Konflex.
10.4 Konflex will, at its sole discretion, repair free of charge, or fully or partially replace the Product. Konflex can, also at its sole discretion, also fulfil its guarantee obligation by repaying the Price of the defective Product. If Konflex decides to replace all or part of the Product, or to repay all or a portion of the purchase amount, they can offset the benefit of any temporary use by the Buyer. Expressly not included under this guarantee are costs that should not reasonably be at the expense of Konflex, such as transport, travel and wage costs.
10.5 The agreed-upon term of claim will not be extended as a result of the replacement or repair of the Product pursuant to paragraph 4 of this article.
10.6 Konflex offers no guarantee for a Defect that is entirely or partially the result of a method of processing, storage, production, construction or manufacture prescribed (or prescribed partially) by Buyer, or that is entirely or partially caused by a supplier, advisor, subcontractor or assistant prescribed by the Buyer.
10.7 Also not covered under the guarantee are defects that can be entirely or partially traced back to:
10.7.a incorrect handling by the Buyer;
10.7.b improper storage by the Buyer as a result of which the products delivered are, for example, exposed to the influence of moisture, contamination, mildew, dryness, light, high and low temperatures, shocks and vibrations or excessively long storage;
10.7.c loss/wear under normal use;
10.7.c use, handling or processing of the delivered goods other than in conformity with the guidelines and specifications provided with the delivered goods or other than in conformity with the purpose for which the goods have been delivered;
10.7.e the failure to follow the maintenance and/or operating instructions, as described verbally and/or delivered in writing by Konflex;
10.7.f the compliance with any government regulation.
Konflex is not obliged, during the period in which Buyer is in default with regard to any obligation towards Konflex, to provide any type of guarantee.
11.1 Buyer must report any complaints relating to visible or easy-to-check inadequacies or shortcomings after delivery of the Product immediately to Konflex, accompanied by supporting documents. A claim against such inadequacies or shortcomings cannot be held against Konflex at a later moment.
11.2 After delivery of the Product, Buyer must report all other complaints in writing to Konflex fourteen days after they discover, or reasonably should have discovered, any inadequacies or shortcomings, but no later than within the expiry period pursuant to Article 22 of these General Terms and Conditions.
11.3 The above-mentioned notification must contain the most detailed possible description of the complaint and the relevant Product, including among other things Buyer’s information and the order number, so that Konflex is able to respond adequately and, if required, to examine these issues. If such a notification is not made, Buyer will be considered to have approved the delivered Product.
11.4 In any event, the assessment of whether the Product satisfies all of that which is agreed upon will take place into the condition of the Product at the time of delivery. The Product regarding which Buyer has complained must be stored by Buyer carefully, unused and unprocessed in a place suitable for that purpose and, upon first request from Konflex, be made available for further assessment by Konflex or a third party to be designated by Konflex.
11.5 If with due consideration for this article Buyer submits a complaint that turns out to relate to a shortcoming that can be attributed to Konflex, at its choice, Konflex will:
11.5.a repair the Product; or
11.5.b replace the relevant Product, after which the Product to be replaced remains/will be the property of Konflex.
11.6 A notification that the Product does not comply with the Agreement is no longer possible if Buyer or a third party decides to use, process or resell the delivered Product.
11.7 After providing a notification regarding an identified inadequacy or shortcoming, Buyer has the obligation to do everything possible to limit the damage for itself, Konflex and/or a third party and to keep it limited.
11.8 A shortcoming or inadequacy pursuant to this article shall not include a shortcoming or inadequacy that is the result of normal wear, or the following carried out by Buyer, or a third party brought in by Buyer:
11.8.a improper or careless use/maintenance/repair work;
11.8.b modification/movement without the permission of Konflex;
11.8.c acting in conflict with safety standards, either imposed by the government or otherwise.
11.9 Complaints in no way suspend Buyer’s payment obligation.
11.10 The burden of proof rests with Buyer to demonstrate that the Product does not comply with the Agreement.
11.11 Buyer cannot derive any rights from that which is specified in this article if and insofar as he fails towards Konflex in the fulfilment of his obligations.
11.12 Complaints regarding invoices must be reported by the Buyer in writing to Konflex within fourteen days of the invoice date.
11.13 Every action based on this article lapses if Buyer does not or does not fully comply with provisions herein, as a result of which Buyer will be considered to have duly accepted the Product in all respects.
12.1 Konflex is a trading company and not a manufacturer. Buyer shall not hold Konflex liable in any way for any shortcomings or for the use by Buyer of the delivered Product and/or the prototype of the Product to be used. Konflex only accepts obligations to pay compensation insofar as specified in this article.
12.2 The total liability of Konflex as a result of an imputable shortcoming in the commitment to fulfil its delivery obligation of any performance – or any other legal basis (also including a claim for compensation based on damage through death or bodily injury or for material damage to objects) – is limited to compensation of direct damage up to a maximum amount of 50% of the Price stipulated for the Product (excl turnover tax). If the Agreement is (primarily) a continuing performance agreement with a duration of more than a year, the amount referred to above will be designated at 50% of the compensation (excl turnover tax) stipulated for one year. Under no circumstances will the total compensation for direct damage total more than the amount paid out by Konflex’s insurance. Insofar as Buyer demonstrates this direct damage, pursuant to this article, direct damage shall exclusively be understood to refer to:
12.2.a the reasonable costs incurred to determine the cause and the scope of the damage, insofar as the determination relates to direct damage within the meaning of this article;
12.2.b the reasonable costs that Buyer has incurred to have Konflex’s Product comply with the Agreement entered into, if and insofar as Buyer has first made use of the options indicated in Articles 10 and 11 of these General Terms and Conditions;
12.2.c the reasonable costs incurred to prevent or limit the damage, insofar as Buyer demonstrates that these costs led to limiting the direct damage within the meaning of this article;
12.3 Excluded from the liability of Konflex is indirect damage, including consequential damage, lost profit, missed savings, damage due to business interruption and any other damage than specified in paragraph 2 of this article.
12.4 Konflex is not liable for any damage arising from the revocation of an Offer.
12.5 Konflex is not liable for damage suffered by Buyer or any third party of whatever nature and resulting from whatever cause that is the result is of incorrect and/or incompetent use by Buyer or any third party of the Product delivered by Konflex.
12.6 Outside the instances specified in paragraph 2 of this article, Konflex is in no way whatsoever liable for damage, except in the case of intent or deliberate recklessness on the part of Konflex and, in that case, limited to a damage amount arrived at with due consideration for the provisions in paragraph 2 of this article, regardless of the grounds on which an action to obtain compensation of those damages is based.
12.7 Buyer can only invoke any right to compensation after submitting a complaint pursuant to Article 11 of these General Terms and Conditions and, insofar as necessary, has given Konflex written notice of default – specifying a reasonable period – and Konflex remains in default even after this period has elapsed.
12.8 For the application of this article, a series of corresponding damage-corresponding events shall count as a single event.
13.1 Buyer indemnifies Konflex against all claims for compensation of third parties insofar as that damage is the result of the Buyer not, not properly or not entirely complying with these General Terms and Conditions or specific regulations of Konflex, or if Buyer does not adequately inform third-party users during the use of the product, or the wrongful provision of information or data by Buyer that does not come from Konflex. In such cases, Buyer is required to compensate all damage that Konflex suffers.
14.1 The term force majeure is understood to refer to all causes that impede the (further) fulfilment of Konflex’s obligations arising from the Agreement, foreseen or unforeseen, and that cannot be attributed to Konflex. This includes in any case, but not exclusively, illness and/or strikes by Konflex and/or Buyer and/or third-party personnel involved in the implementation of the Agreement, government measures or regulations, war or threat of war, terrorism or threat of terrorism, riots, willful damage, fire, flooding, earthquake and failure by third parties to meet their obligations.
14.2 In case of force majeure, regardless of the moment at which it arises, Konflex has the right to suspend and/or (immediately) terminate the implementation of the Agreement. If as a result of the force majeure situation the suspension lasts longer than six months, Buyer is authorised to offer Konflex the choice to as yet implement the Agreement, or to terminate the Agreement. If the force majeure only partly impedes the implementation of the Agreement, Buyer only has the right to terminate that part of the Agreement. Termination or partial termination will not lead to an annulment provision or obligations to pay compensation.
14.3 If Konflex suspends compliance with its obligations, it will retain its claims pursuant to law and/or the Agreement.
14.4 If Konflex terminates the Agreement due to force majeure, Konflex is entitled to invoice insofar as the Agreement was already implemented at the start of the force majeure. This includes, in any event, all costs already incurred at that moment in the context of the implementation of the Agreement. Buyer is required to pay this invoice as if it related to a separate Agreement.
15.1 In addition to the force majeure situations as specified in Article 14 of these General Terms and Conditions, Konflex has the right to suspend the performance of its obligations from the Agreement if Buyer fails to fulfil any payable obligation towards Konflex, or if Konflex can reasonably expect that Buyer will not fulfil its obligation(s) towards Konflex. In those cases, Konflex will not be required to pay any compensation to Buyer.
15.2 Buyer does not have the right to suspend fulfilment of its obligations towards Konflex pursuant to the Agreement.
15.3 Konflex has the right to terminate the Agreement effective immediately by written notification to Buyer if one or more of the circumstances as described in Article 5.6 arise.
15.4 In all cases in which Buyer must take serious account of the fact that it cannot fulfil its obligations towards Konflex, Buyer must inform Konflex of that immediately. In that case, Konflex also has the right to terminate the Agreement in the manner specified in the introduction to paragraph 3 of this article.
15.5 In situations other than those specified in paragraph 3 of this article, the Agreement can only be terminated by mutual agreement.
15.6 Termination will not lead to an annulment provision. By way of derogation from the foregoing, the result of the termination will be that:
15.6.a Buyer is immediately in default and all claims of Konflex are immediately payable;
15.6.b all property of Konflex must be returned immediately.
15.7 Konflex has the right at all times to offset any debt on its part to Buyer with a claim against it by Buyer, after Konflex has informed the Buyer to that effect. Buyer waives the right to set off a debt to Konflex with a claim against Konflex.
16.1 Buyer undertakes to in no way disclose any information of which it becomes aware during the implementation of the Agreement, the confidential nature of which is known or which it can reasonably expect – including through social media channels – or to use this information for its own purposes, except insofar as any statutory regulation or judicial decision requires disclosure of this information, or if this is necessary for safeguarding its rights in the courts.
16.2 Buyer undertakes to agree to this confidentiality obligation, as included in paragraph 1 of this article, with the persons employed for or on behalf of them or third parties brought in by them or Buyer.
16.3 In case of violation of the previous paragraphs by Buyer and/or persons employed by Buyer and/or the third parties brought in by Buyer, Konflex has the right to suspend implementation of the Agreement or to terminate the Agreement effective immediately by written notification in conformity with that which is presented in Article 15 of these General Terms and Conditions.
17.1 In conformity with the General Data Protection Regulation, Konflex will properly and carefully process the Personal Data of Buyer that Buyer makes available to Konflex that is necessary in the context of the implementation of the Agreement in a manner that is proportional and subsidiary to the purpose of collection as follows from the Agreement.
17.2 Personal details will not be made available to third parties, unless this is required based on a judicial decision or law or regulation, or if Konflex is officially asked to provide Buyer’s personal data.
18 Intellectual property rights
18.1 Konflex reserves all intellectual and industrial property rights, whether corresponding to the Product or otherwise.
18.2 Unless expressly agreed otherwise in writing, all intellectual property rights or claims to intellectual property rights with regard to any result arising from the Agreement rest with Konflex. The Buyer shall transfer these IP rights or claims to IP rights – insofar as required – to Konflex free of charge. Insofar as such a transfer is not achieved by these General Terms and Conditions, Buyer will cooperate in implementing this transfer at no charge and upon first request.
18.3 The term ‘result’ pursuant to this article is understood to refer to all that is brought about in the context of the Agreement, regardless of whether the Buyer achieves the result using any contribution from Konflex and/or third parties.
18.4 Insofar as possible, Buyer waives any and all personality rights to the copyrighted works created in the context of the Agreement.
18.5 Unless agreed upon otherwise in writing, Buyer does not retain or obtain the right of use relating to any result of the Agreement.
18.6 Konflex expressly reserves the right of use with regard to all work disclosed to Buyer in the context of the Agreement. The Buyer acknowledges this reservation.
18.7 Buyer indemnifies Konflex and holds Konflex fully harmless with regard to each claim by third parties based on an (alleged) infringement of industrial or intellectual property rights as a result of use by Konflex of shapes, models, molds, designs or other information or products made available by the Buyer or as a result of storage, delivery or use by Konflex of the Product(s) that are produced (or produced in part) using that data, shapes, models, molds or designs.
19 Contracting of third parties
19.1 Konflex can contract third parties for the implementation of the Agreement. In such cases, these third parties operate on their own account and risk and Buyer cannot hold Konflex liable for any actions of these third parties. In the event that Buyer holds Konflex liable due to damage caused by these third parties, Konflex can require these third parties to be joined in the proceedings.
20 Contract acquisition
20.1 Konflex has the right at all times to transfer its rights and obligations, or a portion thereof, corresponding with or arising from the Agreement (or the implementation of the Agreement) to a third party. Buyer only has the right to do this after Konflex has expressly granted its permission to do so in writing.
21 Prototypes and models
21.1 Prototypes, models and samples that are shown and/or provided to Buyer by or on behalf of Konflex qualify only as samples. The only exception to this rule is if the parties expressly agree otherwise in writing that the Product to be delivered will be the same. Konflex expressly gives no guarantee on the prototypes, models and samples.
21.2 Costs of prototypes, models and/or samples (including administrative, packaging and shipping costs) will be at Buyer’s expense.
21.3 Konflex has the right to deliver a Product that deviates from the prototypes, models and/or samples as specified in paragraph 1 of this article with regard to changes to the Product to be delivered, the packaging or documentation that are required to satisfy applicable statutory regulations or if they are minor changes to the Product that constitute an improvement.
22 Loss of right
22.1 Any claim against Konflex that – in whatever way – relates to or arises from the implementation of the Agreement shall lapse in any event after a period of one year, unless a different period applies by force of law, to be calculated as of the date of delivery of the Product and/or unless otherwise agreed upon.
23 Applicable law and competent court
23.1 The Agreement and the legal relationships between the Parties arising from and/or corresponding to the Agreement is subject to Dutch law.
23.2 The Vienna Convention (CISG) does not apply.
23.3 Unless Parties agree otherwise in writing, all disputes between them will be settled by the competent court of Gelderland, Arnhem location.
This is a English translation from the Dutch text and the Dutch text of the “Leveringsvoorwaarden” of Konflex B.V.” is always binding in case of disputes concerning the content.