1. General
1.1 These general terms and conditions apply to all offers from 2KERR B.V. and to all agreements with 2KERR B.V. (hereafter: '2KERR').
1.2 Parties may only deviate from these general terms and conditions if and to the extent that such deviations have been confirmed in writing by the management of 2KERR.
1.3 Oral promises by employees of 2KERR bind 2KERR only to the extent that such promises have been confirmed in writing by its management.
1.4 The term 'client' in these general terms and conditions refers to a consumer or business entity. 1.5 2KERR has the right to unilaterally modify these general terms and conditions. In that case, 2KERR will notify the client of the changes in a timely manner. There will be at least one month between this notification and the effective date of the amended terms.
1.6 If one or more provisions in these general terms and conditions are deemed void or declared void due to legal measures and/or a court ruling, this does not affect the applicability of the other provisions of these general terms and conditions.
2. Quotes
2.1 All offers and price quotations from 2KERR are entirely non-binding and based on the prices and specifications in effect at the time of concluding the agreement.
2.2 The term within which an offer from 2KERR remains valid is thirty (30) days. After this period, the client can no longer derive any rights from the offer of 2KERR.
2.3 All prices mentioned by 2KERR are including VAT, unless otherwise stated by 2KERR.
2.4 The prices in the offers of 2KERR only apply to the quantities indicated therein.
2.5 Minor deviations from sample materials, test pieces, and/or imagery and/or descriptions used by 2KERR are reserved and do not constitute a shortcoming of 2KERR.
2.6 In the case of interim model changes, 2KERR has the right to deliver the modified model.
3. Agreement
An agreement with 2KERR is established when the client agrees to a quote/offering from 2KERR. Changes to the original order, made by the client, that cause higher costs, will be charged to the client by 2KERR. The content of the order confirmation from 2KERR is leading for the agreements made between the parties.
4. Delivery and delivery times
4.1 All delivery times are provided by 2KERR as approximate estimates. Exceeding a delivery time does not constitute default unless expressly agreed otherwise in writing. Early delivery is always allowed.
4.2 In the event of exceeding the estimated delivery time, 2KERR must be granted a further period by the client in writing to deliver. This further period is equal to the original estimated delivery time, with a maximum of thirty (30) calendar days. If this delivery time is also exceeded by 2KERR due to circumstances not attributable to the client, the client has the right to dissolve the agreement if 2KERR fails to fulfill its obligation within fourteen (14) days after receiving a written default notice after this delivery time has elapsed.
4.3 Delivery by 2KERR will always take place at the prices applicable on the day of actual delivery. Price increases due to changes in factory prices and exchange rates will be passed on to the client. The client has the right to terminate the agreement free of charge up to ten (10) days after notification of the price change unless 2KERR is still willing to supply at the originally agreed price. Taxes, excise duties, and other government-imposed charges may at all times be charged by 2KERR to the client, even if this change occurs after the conclusion of the agreement without the client having the right to dissolve the agreement.
4.4 From the moment the goods are delivered by 2KERR, they are at the expense and risk of the client. If the goods are not picked up within three (3) days after the client has been notified that the goods are ready for delivery, the goods will from that moment be the responsibility of the client and 2KERR is entitled to charge storage costs to the client according to the applicable rates at 2KERR.
4.5 2KERR is entitled, without notice to or consultation with the client, to outsource the order or parts thereof to third parties not employed by it if, in 2KERR's opinion, this promotes good execution.
4.6 If an order needs to be expedited at the request of the client, overtime and/or other potentially extra costs incurred by 2KERR can be charged to the client.
4.7 In case of damage to goods that are returned, 2KERR reserves the right to charge repair costs or replacement costs or, in exceptional cases, to refuse returns.
5. Payments
5.1 Payment to 2KERR must be made to a bank account designated by 2KERR, prior to or immediately upon delivery of the goods or immediately after providing the service.
5.2 The client is obligated, at first request from 2KERR, which is always entitled to that, to provide an advance payment or deposit, or to provide security for the proper fulfillment of its obligations in a manner determined by 2KERR.
5.3 2KERR may exercise its right of retention against the client and third parties on all that 2KERR holds for or on behalf of the client as long as goods or services provided by 2KERR have not been fully paid for by the client, including any damages, interest, and costs owed by the client to 2KERR under any agreement or these general conditions.
5.4 If the client fails to meet its payment obligation on time or only partially, or fails to comply with any other provision of the agreement in a timely or incomplete manner; if its goods are seized, or if it applies for or is applied for suspension of payment or bankruptcy, the client shall be deemed to be in default by operation of law and the amounts owed to 2KERR shall be immediately due and payable without further demand or notice of default, regardless of earlier payment agreements. In such a case, 2KERR has the right to suspend the performance of any other agreements or to terminate any agreement with the client, either entirely or partially, solely at the discretion of 2KERR, without being liable for any damages to the client.
5.5 Any payment to 2KERR is deemed primarily to be payment of any interest and/or costs owed, and after full settlement of such, the payment is deemed to be in payment of the oldest outstanding invoice, regardless of whether anything else is stated with the payment.
5.6 If 2KERR proceeds to dissolve an agreement, it is entitled to compensation. The damage is set at 15% of the invoice value of the sold goods or 15% of the invoice value of the performance already delivered or to be delivered by 2KERR under the dissolved agreement, without prejudice to 2KERR's right to claim the actual damages, in case they exceed. 2KERR is entitled to offset any advance payment made by the client on the relevant agreement against its damage claim as set out in this clause.
5.7 All judicial and extrajudicial costs incurred by 2KERR to collect amounts owed by the client to 2KERR shall be borne by the client.
6. Repairs
6.1 The client may request a price quote and the time frame for the work when placing an order for repair. The prices and timelines provided by 2KERR are always approximate. If the price specified by 2KERR is exceeded by more than 20% or is threatening to be exceeded, 2KERR will contact the client to discuss the additional costs. The client is then entitled to cancel the agreement while paying for the work already performed by 2KERR. In case of exceeding or threatening to exceed the timeline provided by 2KERR, 2KERR will promptly inform the client with a new delivery date.
6.2 2KERR may charge travel costs for repairs that take place at the client's request.
6.3 Parts that are replaced belong to 2KERR and will only be returned to the client if this has been agreed upon in writing when the repair agreement is concluded.
7. Duration agreements: duration, termination, and extension
7.1 2KERR and the client can terminate an agreement entered into for an indefinite period at any time in writing while observing a notice period of one (1) calendar month.
7.2 An agreement entered into for a fixed period has a maximum term of one (1) year. An agreement for a fixed period can be terminated by 2KERR and the client at the end of the contract term with a notice period of one (1) calendar month. If the agreement is not terminated, it will be extended for an indefinite period.
8. Retention of title
8.1 2KERR retains ownership of all products delivered and to be delivered to the client until the purchase price for all these products has been fully paid, as well as all claims that 2KERR has or will obtain against the client, including at least the claims referred to in article 3:92 section 2 of the Civil Code, have been fully paid.
8.2 If and as long as ownership of the products of 2KERR is retained, the client is not allowed to sell these products or establish any limited right on them. The transferability of the products of 2KERR is also excluded according to article 3:83 section 2 of the Civil Code, as long as ownership of the delivered products has not passed to the client.
8.3 The client has a duty of care regarding products covered by the retention of title and must insure them and keep them insured against normal risks, including in any case a household insurance against risks such as fire, theft, explosion, and water damage.
8.4 If the client fails to fulfill its obligations under any agreement concluded with 2KERR, or if 2KERR has good grounds to fear that the client will fail to fulfill its obligations under any agreement concluded with 2KERR, 2KERR is always entitled to take back the products delivered to the client, remove them, and store them elsewhere. This right specifically— but not exclusively—applies if (I) the client has applied for suspension of payment or bankruptcy, (II) the bankruptcy of the client has been or is applied for or declared, or (III) the client reaches a payment arrangement with one or more creditors.
8.5 In the event that 2KERR wishes to exercise its ownership rights as described in this article, the client hereby unconditionally and irrevocably gives consent to 2KERR, or a third party designated by it, to enter all places where those products owned by 2KERR are located and to retrieve those products.
8.6 All costs related to the exercise of the retention of title by 2KERR, including transportation and storage costs, shall be borne by the client.
9. Warranties and complaints
9.1 2KERR provides a warranty of 24 months on new products from the time of delivery.
9.2 For used/second-hand products, 2KERR provides a warranty of 6 months from the time of delivery, unless otherwise agreed in writing.
9.3 The warranty for new and second-hand products from 2KERR covers structural parts, electronics and electronic parts, motors, drive, and transmission (excluding wear parts), joystick, display and control buttons. Other parts and/or items do not fall under the warranty.
9.4 The following are excluded from the warranty on new and second-hand products from 2KERR:
• Damage to inner and outer tubes (unless demonstrable defect from delivery);
• Damage to wear parts (unless demonstrable defect from delivery);
• Damage to batteries, battery chargers, and accumulators;
• Damage caused by water;
• Damage from external voltage/current damage (for example, during peak voltage, a magnetic field, or thunderstorms and/or lightning);
• Damage caused by fire;
• All externally inflicted damages (including damages from incorrect use of the product supplied by 2KERR);
• Damage caused by third parties;
• Damage caused by failure to comply with operating and/or maintenance instructions;
• Damage from use that contradicts the instructions and/or the manual accompanying the product;
• Damage caused by non-normal use;
• Damage resulting from (dis)assembly, installation, or repair by the client or third parties.
9.5 2KERR will handle warranty claims and complaints regarding delivered products on working days during business hours. The client is required to provide all necessary cooperation to 2KERR in assessing a warranty claim or complaint.
9.6 In the case of a justified warranty claim or complaint, 2KERR has the choice to repair or restore the relevant part or product. At the discretion of 2KERR, it may also offer a replacement product.
9.7 In the case of a justified warranty claim or complaint, the client must ensure the return of the relevant product to the location of 2KERR at their own expense and risk, unless 2KERR decides in writing to handle the transportation itself.
9.8 If the client wishes to file a warranty claim or complaint, they must do so within a reasonable time, but no later than two (2) months after the grounds for the warranty claim or complaint are discovered or could reasonably have been discovered. Exceeding this period leads to the expiration of the client's right to invoke a warranty or defect.
10. Liability
10.1 If 2KERR is found to be liable, such liability is limited to what is regulated in this provision.
10.2 2KERR is not liable for any damage of any kind arising because 2KERR has relied on incorrect and/or incomplete information provided by or on behalf of the client.
10.3 If 2KERR is liable for any damage, its liability is limited to the amount paid out by its liability insurer, plus the deductible. If for any reason no payment is made by 2KERR's liability insurer, 2KERR's liability is limited to the invoice value of the order in question, with a maximum of €50,000.00.
10.4 2KERR is only liable for direct damages. Direct damage is understood as the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage as defined in these conditions, any reasonable costs incurred to make the defective performance of 2KERR comply with the agreement, as far as these can be attributed to 2KERR, and reasonable costs incurred to prevent or limit damages, to the extent that the client demonstrates that these costs have led to the limitation of direct damage as defined in these general terms and conditions.
10.5 2KERR is never liable for indirect damage, including consequential damage, loss of profit, missed savings, and damage due to business stagnation.
10.6 The client indemnifies 2KERR against all claims from third parties and will reimburse 2KERR for the costs it incurs or will incur in relation to defending against such claims from third parties related to or resulting from deliveries and/or work performed by 2KERR under the agreements with the client.
10.7 Notwithstanding legal limitation periods, the limitation period for all claims and defenses against 2KERR and the third-party assistants involved in the performance of an agreement by 2KERR is 1 year.
10.8 2KERR does not provide advice to the client (regarding, for example, taxation and/or reimbursement possibilities); thus, a client must always seek independent advice. 2KERR is not liable for advice received from the client or changes in laws or regulations (e.g., pertaining to taxation and/or reimbursement possibilities).
10.9 Conducting a test drive in a product of 2KERR is entirely at the risk of the person making the test drive. 2KERR is not liable for any damage caused or arising during a test drive in a 2KERR product, and the person making the test drive fully indemnifies 2KERR for this.
10.10 The limitations of liability set out in this article do not apply if the damage is due to intent or gross negligence on the part of 2KERR or its managerial subordinates.
11. Force majeure
11.1 If 2KERR is prevented from delivering or delivering normally due to force majeure, 2KERR has the right to extend the delivery time by the duration of the force majeure or to cancel the order, to the extent it has not yet been executed, without becoming liable for damages to anyone.
11.2 Situations such as, but not limited to, the following qualify as force majeure: 2KERR failing to deliver – including late or no delivery—due to actions by producers, suppliers, and/or transporters, shortages in the market of necessary materials or labor, labor disputes, strikes and lockouts, riots, disturbances, vandalism, sabotage, cyber attacks (including hacking, malware attacks, and/or ransomware attacks), unavailability of transport, stagnation in supply, machinery damage, theft from 2KERR's warehouses, natural disasters (including volcanic eruptions and tsunamis), severe weather, lightning strikes, fire, explosions, war, government measures such as transportation, import, export, or production bans, the occurrence of an outbreak of a virus in the Netherlands (including and/or such as a Coronavirus/Covid19 outbreak) and/or an epidemic and/or pandemic, as well as subsequent measures undertaken by the Dutch government (such as establishing a lockdown and/or closing 2KERR's premises), and any other situations that make it difficult or impossible for 2KERR to fulfill its obligations due to an unforeseen circumstance beyond 2KERR's control.
12. Intellectual property rights
12.1 All intellectual and industrial property rights relating to the products delivered by 2KERR to the client are exclusively held by 2KERR or its licensors or suppliers. The client is not allowed to copy these products or otherwise infringe on the intellectual property rights of 2KERR or its licensors or suppliers.
12.2 All intellectual and industrial property rights to images, samples, models, reports, product specifications, descriptions, and drawings created by or provided by 2KERR always belong to 2KERR, even if the client has paid for them.
12.3 The client indemnifies 2KERR against all claims from third parties made against 2KERR related to any (alleged) infringement of intellectual and/or industrial property rights by the client or third parties engaged by the client.
Article 13 Data
2KERR collects in its customer database the data necessary for processing an order from the client, such as personal, measurement, order, delivery, and payment details, as well as the data necessary for 2KERR to assess the solution for the client effectively. By placing an order with 2KERR, the client gives consent for this.
Article 14 Disputes
14.1 Dutch law exclusively applies to all legal relationships between 2KERR and the client.
14.2 The applicability of the Vienna Sales Convention is expressly excluded.
14.3 All disputes arising from or related to an agreement or offer, quote, order confirmation, delivery of products and/or services, and invoices from 2KERR will only be submitted to the competent court of the District Court of East Brabant, location 's-Hertogenbosch, unless any domiciliary choice is made in the residence of the client, which choice is expressly reserved for 2KERR, and any exceptions under mandatory law.
