Terms and Conditions

Kluist Terms and Conditions

Definitions

Kluist: Kluist, established in Culemborg, the Netherlands, registered with the Dutch Chamber of Commerce (KvK) under number 86869167.
Customer: The person or legal entity that has entered into an agreement with Kluist.
Parties: Kluist and the Customer collectively.
Consumer: A Customer who is a natural person acting for purposes outside their trade, business, or profession.

Applicability of these Terms and Conditions

These Terms and Conditions apply to all quotations, offers, services, orders, agreements, and deliveries of products or services provided by or on behalf of Kluist.
Any deviation from these Terms and Conditions shall only be valid if expressly agreed upon in writing by both Parties.
The applicability of any additional and/or deviating terms and conditions of the Customer or any third party is expressly excluded.

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Offers and Quotations

All offers and quotations issued by Kluist are non-binding, unless expressly stated otherwise.
An offer or quotation is valid for a maximum period of two (2) weeks, unless a different acceptance period is specified in the offer or quotation.
If the Customer does not accept the offer or quotation within the applicable period, the offer or quotation shall automatically expire.
Offers and quotations do not apply to repeat or additional orders, unless expressly agreed otherwise by the Parties in writing.

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Acceptance

If the Customer accepts a non-binding offer or quotation, Kluist reserves the right to withdraw the offer or quotation within three (3) days of receiving the acceptance, without the Customer being entitled to derive any rights from such acceptance.
A verbal acceptance by the Customer shall only be binding on Kluist once it has been confirmed by the Customer in writing or by electronic means.

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Prices

All prices quoted by Kluist are in euros (€) and exclude VAT, unless expressly stated otherwise. Prices also exclude any additional costs, such as administration fees, levies, travel expenses, shipping, or transportation costs, unless otherwise agreed in writing.
Kluist reserves the right to amend the prices of its products and services, whether published on its website or communicated by any other means, at any time.
Increases in the cost of products or components that could not reasonably have been foreseen by Kluist at the time the offer was made or the agreement was concluded may result in a price adjustment.
A Consumer has the right to terminate the agreement if a price increase as referred to in Clause 3 occurs, unless the increase results from a statutory or regulatory requirement.
The price for services is determined based on the actual hours worked, plus any applicable call-out charges.
Service charges are calculated in accordance with Kluist’s standard hourly rates applicable during the period in which the services are performed, unless a different hourly rate has been agreed in writing.
Where the Parties have agreed on a total price for services, this amount shall be regarded as an estimate unless the Parties have expressly agreed in writing on a fixed, non-adjustable price.
Kluist is entitled to exceed the estimated price by up to ten percent (10%).
If the estimated price is expected to exceed the agreed estimate by more than ten percent (10%), Kluist shall inform the Customer in good time and explain the reasons for the increase.
If the estimated price exceeds the agreed estimate by more than ten percent (10%), the Customer is entitled to cancel that part of the assignment which exceeds the original estimate by more than ten percent (10%).
Kluist reserves the right to adjust its prices annually.
Any price adjustments will be communicated to the Customer before they take effect.
If a Consumer does not agree with a price adjustment, the Consumer has the right to terminate the agreement with Kluist within five (5) working days after notification of the price increase.

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Payments and Payment Terms

Kluist may require a deposit of up to fifty percent (50%) of the agreed purchase price upon entering into the agreement.
Unless otherwise agreed, the Customer shall pay all outstanding invoices within fourteen (14) days after delivery of the product.
Payment terms are considered strict deadlines. If the Customer fails to pay the agreed amount by the final day of the applicable payment period, the Customer shall automatically be in default by operation of law, without the need for Kluist to issue a reminder or formal notice of default.
Kluist reserves the right to make delivery conditional upon immediate payment or to require adequate security for the full value of the products or services to be supplied.

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Consequences of Late Payment

If the Customer fails to pay within the agreed payment period, Kluist is entitled to charge interest at a rate of one percent (1%) per month from the date the Customer is in default. Any part of a month shall be considered a full month for the calculation of interest.
If the Customer is in default, the Customer shall also be liable for all extrajudicial debt collection costs and any damages incurred by Kluist.
Extrajudicial collection costs shall be calculated in accordance with the Dutch Decree on Compensation for Extrajudicial Collection Costs (Besluit vergoeding voor buitengerechtelijke incassokosten).
If the Customer fails to make payment on time, Kluist is entitled to suspend its obligations under the agreement until the Customer has fulfilled all outstanding payment obligations.
In the event of the Customer's liquidation, bankruptcy, attachment of assets, or suspension of payments, all claims of Kluist against the Customer shall become immediately due and payable.
If the Customer refuses to cooperate with the performance of the agreement by Kluist, the Customer shall nevertheless remain obliged to pay the agreed price in full.

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Right of Reclamation

As soon as the Customer is in default, Kluist shall be entitled to exercise its right of reclamation with regard to any unpaid products delivered to the Customer.
Kluist shall exercise its right of reclamation by means of a written or electronic notification.
Upon receipt of such notification, the Customer shall immediately return the products to which the right of reclamation relates, unless the Parties have agreed otherwise in writing.
All costs associated with the retrieval or return of the products shall be borne by the Customer.

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Right of Withdrawal

A Consumer may cancel an online purchase within a cooling-off period of fourteen (14) days without stating any reason, provided that:
- the product has not been used;
- the product has not been custom-made or modified specifically for the Consumer;
- the seal and/or packaging remains intact;
- the purchase does not relate to an emergency repair or urgent repair service;
- the Consumer has not waived the right of withdrawal.
The fourteen (14) day cooling-off period referred to in Clause 1 shall commence:
- on the day after the Consumer has received the final product or component of a single order;
- upon receipt of the first product under a subscription agreement;
- when the Consumer first makes use of a service;
- when the Consumer has confirmed the purchase of digital content supplied via the internet.
The Consumer may exercise the right of withdrawal by notifying Kluist via info@kluist.nl, optionally using the withdrawal form available for download from www.kluist.nl.
The Consumer must return the product to Kluist within fourteen (14) days after notifying Kluist of the withdrawal. Failure to do so will result in the expiry of the right of withdrawal.
Return shipping costs shall only be borne by Kluist if the entire order is returned.
If the purchase price and any additional costs (such as delivery and return shipping costs) qualify for reimbursement under applicable law, Kluist shall refund these amounts within fourteen (14) days after receiving a valid notice of withdrawal, provided that the Consumer has returned the product to Kluist within the required period.

Right of Suspension

Unless the Customer is a Consumer, the Customer waives the right to suspend the performance of any obligation arising from the agreement.

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Right of Retention

Kluist is entitled to exercise its right of retention and, in such case, retain products belonging to the Customer until all outstanding invoices owed to Kluist have been paid in full, unless the Customer has provided adequate security for those obligations.
The right of retention also applies to outstanding payment obligations arising from previous agreements concluded between Kluist and the Customer.
Kluist shall not be liable for any damage the Customer may suffer as a result of Kluist exercising its right of retention.

Set-Off

Unless the Customer is a Consumer, the Customer waives the right to set off any debt owed to Kluist against any claim the Customer may have against Kluist.

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Retention of Title

All products supplied by Kluist shall remain the property of Kluist until the Customer has fulfilled all payment obligations arising from any agreement concluded with Kluist, including claims resulting from any failure by the Customer to perform its contractual obligations.
Until full payment has been received, Kluist is entitled to invoke its retention of title and reclaim the products.
Until ownership has passed to the Customer, the Customer may not pledge, sell, transfer, encumber, or otherwise dispose of the products.
If Kluist exercises its retention of title, the agreement shall be deemed terminated, and Kluist shall be entitled to claim compensation for damages, lost profits, and interest.

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Delivery

Delivery shall be made while stocks last.
Unless otherwise agreed by the Parties, delivery shall take place at Kluist's premises.
Products ordered online shall be delivered to the address specified by the Customer.
If the agreed amounts are not paid, or not paid on time, Kluist shall be entitled to suspend its obligations until the outstanding payment has been received.
In the event of late payment, the Customer shall be deemed to be in creditor's default. As a result, the Customer may not hold Kluist liable for any delay in delivery.

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Delivery Time

Delivery times stated by Kluist are indicative only. Exceeding a stated delivery time shall not entitle the Customer to terminate the agreement or claim compensation, unless expressly agreed otherwise in writing by the Parties.
The delivery period shall commence once the quotation signed for approval by the Customer has been confirmed by Kluist in writing or by electronic means.
Exceeding the stated delivery time shall not entitle the Customer to compensation or termination of the agreement, unless Kluist fails to deliver within fourteen (14) days after receiving a written notice of default from the Customer, or unless otherwise agreed by the Parties.

Actual Delivery

The Customer shall ensure that the actual delivery of the ordered products can take place in a timely manner.

Transport Costs

Transport costs shall be borne by the Customer, unless otherwise agreed in writing by the Parties.

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Packaging and Shipping

If the packaging of a delivered product is opened or damaged, the Customer must, before accepting delivery of the product, ensure that the carrier or delivery service records this on the delivery note. Failure to do so shall release Kluist from any liability for resulting damage.
If the Customer arranges transport of a product personally, any visible damage to the product or its packaging must be reported to Kluist prior to transport. Failure to do so shall release Kluist from any liability for such damage.

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Insurance

The Customer shall ensure that the following items are adequately insured and remain insured against, among other things, fire, explosion, water damage, and theft:
- products supplied that are necessary for the performance of the underlying agreement;
- property belonging to Kluist that is located on the Customer's premises;
- products delivered subject to retention of title.
Upon Kluist's first request, the Customer shall provide Kluist with the insurance policy or proof of insurance relating to the above-mentioned cover.

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Storage

If the Customer takes delivery of the ordered products later than the agreed delivery date, any risk of deterioration or loss of quality shall be borne entirely by the Customer.
Any additional costs arising from early or delayed acceptance of the products shall be borne entirely by the Customer.

Assembly and Installation

Although Kluist will make every reasonable effort to carry out all assembly and installation work to the highest possible standard, Kluist accepts no liability for such work except in cases of wilful misconduct or gross negligence.

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Warranty

Where the Parties have entered into an agreement for the provision of services, Kluist shall be subject to an obligation to use reasonable skill and care (best efforts obligation) and not to achieve a specific result.
The warranty relating to products applies exclusively to defects resulting from faulty manufacturing, construction, or materials.
The warranty does not apply to normal wear and tear, or to damage caused by accidents, modifications made to the product, negligence, improper use by the Customer, or where the cause of the defect cannot be clearly determined.
The risk of loss, damage, or theft of products forming the subject of an agreement between the Parties shall pass to the Customer at the moment the products are legally and/or physically delivered, or otherwise come into the possession or control of the Customer or of a third party acting on the Customer's behalf.

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Performance of the Agreement

Kluist shall perform the agreement to the best of its knowledge and ability, exercising the due care and professional skill that may reasonably be expected.
Kluist is entitled to have the agreed services performed, in whole or in part, by third parties.
Performance of the agreement shall take place in mutual consultation and only after the Customer has provided written approval and paid any agreed advance payment.
The Customer is responsible for ensuring that Kluist can commence performance of the agreement in a timely manner.
If the Customer fails to enable Kluist to commence performance of the agreement on time, any resulting additional costs and/or extra hours worked shall be borne by the Customer.

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Provision of Information by the Customer

The Customer shall provide Kluist, in a timely manner and in the requested form and manner, with all information, data, and documents that are relevant to the proper performance of the agreement.
The Customer warrants the accuracy, completeness, and reliability of all information, data, and documents provided to Kluist, including those obtained from third parties, unless the nature of the agreement dictates otherwise.
If and insofar as requested by the Customer, Kluist shall return the relevant documents.
If the Customer fails to provide the information, data, or documents reasonably requested by Kluist, or fails to do so in a timely or proper manner, causing a delay in the performance of the agreement, any resulting additional costs and extra hours worked shall be borne by the Customer.

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Term of the Agreement

The agreement between Kluist and the Customer shall be entered into for an indefinite period, unless the nature of the agreement provides otherwise or the Parties have expressly agreed otherwise in writing.
If an agreement has been entered into for a fixed term, it shall automatically be converted into an agreement for an indefinite period upon expiry of that term, unless either Party terminates the agreement by giving two (2) months' notice. A Consumer may terminate such an agreement by giving one (1) month's notice, in which case the agreement shall terminate by operation of law.
If the Parties have agreed upon a deadline for the completion of specific work during the term of the agreement, such deadline shall not be regarded as a strict deadline. If the deadline is exceeded, the Customer must first notify Kluist of the default in writing before any remedies may be invoked.

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Termination of an Agreement for an Indefinite Period

The Customer may terminate an agreement concluded for an indefinite period at any time by giving two (2) months' written notice.
A Consumer may terminate an agreement concluded for an indefinite period at any time by giving one (1) month's written notice.

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Confidentiality

The Customer shall keep confidential all information received from Kluist, regardless of the form in which such information is provided.
The same obligation applies to all other information relating to Kluist which the Customer knows, or can reasonably be expected to know, is confidential or proprietary, or of which disclosure could reasonably be expected to cause harm to Kluist.
The Customer shall take all necessary measures to ensure that the information referred to in Clauses 1 and 2 remains confidential.
The confidentiality obligations set out in this Article shall not apply to information:
- that was already publicly available before the Customer became aware of it, or subsequently became public through no breach of the Customer's confidentiality obligations; or
- that the Customer is required to disclose pursuant to a legal obligation.
The confidentiality obligations set out in this Article shall remain in force for the duration of the underlying agreement and for a period of three (3) years following its termination.

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Penalty Clause

If the Customer breaches the provisions of these Terms and Conditions relating to confidentiality or intellectual property, the Customer shall immediately forfeit, in favour of Kluist, a penalty of €5,001,000 for each breach, plus an additional amount equal to 5% of the aforementioned penalty for each day that the breach continues.
No prior notice of default or legal proceedings shall be required for this penalty to become due and payable. Nor is it necessary for Kluist to have suffered any actual damage.
Payment of the penalty referred to in Clause 1 shall not affect any other rights of Kluist, including the right to claim compensation for damages in addition to the penalty.

Indemnification

The Customer shall indemnify and hold Kluist harmless against all claims by third parties arising out of or in connection with the products and/or services supplied by Kluist.

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Complaints

The Customer shall inspect any product delivered or service provided by Kluist as soon as reasonably possible for any defects or shortcomings.
If a delivered product or provided service does not conform to what the Customer could reasonably expect under the agreement, the Customer shall notify Kluist as soon as possible and, in any event, within five (5) working days after delivery and/or installation.
A Consumer must notify Kluist of any complaint no later than five (5) working days after delivery and/or installation.
The Customer shall provide as detailed a description of the defect or shortcoming as possible, enabling Kluist to respond appropriately.
The Customer must demonstrate that the complaint relates to an agreement concluded between the Parties.
If a complaint concerns ongoing work, this shall not oblige Kluist to perform any work other than that which has been agreed between the Parties.

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Notice of Default

The Customer shall notify Kluist of any notice of default in writing.
It is the Customer's responsibility to ensure that any notice of default is received by Kluist in a timely manner.

Joint and Several Liability

If Kluist enters into an agreement with two or more Customers, each Customer shall be jointly and severally liable for the full amount owed to Kluist under that agreement.

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Liability of Kluist

Kluist shall only be liable for any loss or damage suffered by the Customer if, and to the extent that, such loss or damage is the result of wilful misconduct or deliberate recklessness on the part of Kluist.
If Kluist is liable for any loss or damage, such liability shall be limited to direct damage arising from or relating to the performance of the agreement.
Kluist shall never be liable for indirect or consequential damages, including but not limited to consequential loss, loss of profit, loss of savings, or damage suffered by third parties.
Where Kluist is liable, such liability shall be limited to the amount paid out under Kluist's professional liability insurance. If the insurer does not make payment, or does not pay the full amount of the claim, Kluist's liability shall be limited to the amount of the relevant invoice, or the relevant part thereof, to which the liability relates.
All images, photographs, colours, drawings, descriptions, specifications, and other information displayed on the website or in catalogues are for illustrative purposes only and are approximate. They shall not give rise to any claim for damages, full or partial termination of the agreement, or suspension of any obligation.

Limitation Period

Any right of the Customer to claim damages from Kluist shall expire twelve (12) months after the event giving rise to the liability, whether directly or indirectly. This limitation shall not affect the provisions of Article 6:89 of the Dutch Civil Code.

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Right of Termination

The Customer is entitled to terminate the agreement if Kluist is culpably in breach of its contractual obligations, unless, in view of the special nature or minor significance of the breach, such breach does not justify termination.
Where performance of Kluist's obligations is not permanently or temporarily impossible, the agreement may only be terminated after Kluist has been placed in default.
Kluist is entitled to terminate the agreement with the Customer if the Customer fails to fulfil its obligations under the agreement in full or on time, or if Kluist becomes aware of circumstances that give reasonable grounds to believe that the Customer will be unable to fulfil its contractual obligations properly.

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Force Majeure

In addition to the provisions of Article 6:75 of the Dutch Civil Code, any failure by Kluist to perform its obligations towards the Customer shall not be attributable to Kluist if such failure is caused by circumstances beyond Kluist's reasonable control, which wholly or partially prevent the performance of its obligations or render such performance unreasonable to require.
Force majeure includes, but is not limited to: states of emergency (such as civil war, insurrection, riots, natural disasters, etc.); failure or force majeure on the part of suppliers, carriers, or other third parties; unexpected failures of electricity, power, internet, computer or telecommunications services; computer viruses; strikes; government measures; unforeseen transport disruptions; adverse weather conditions; and work stoppages.
If a force majeure event prevents Kluist from fulfilling one or more of its obligations towards the Customer, those obligations shall be suspended until Kluist is able to resume performance.
If a force majeure situation continues for a period of at least thirty (30) consecutive calendar days, either Party shall be entitled to terminate the agreement, in whole or in part, by written notice.
During a force majeure event, Kluist shall not be liable for any compensation or damages whatsoever, even if Kluist benefits in any way from the force majeure situation.

Amendment of the Agreement

If, after the agreement has been concluded, it becomes necessary to amend or supplement its contents for the proper performance of the agreement, the Parties shall modify the agreement accordingly in a timely manner and by mutual written agreement.

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Amendments to the Terms and Conditions

Kluist reserves the right to amend or supplement these Terms and Conditions at any time.
Amendments of a minor nature may be implemented at any time without prior notice.
Kluist shall, where reasonably possible, discuss any substantial amendments to these Terms and Conditions with the Customer in advance.
In the event of a material amendment to these Terms and Conditions, a Consumer shall be entitled to terminate the agreement.

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Transfer of Rights

The Customer may not assign or transfer any rights arising from an agreement with Kluist to any third party without the prior written consent of Kluist.
This provision shall constitute a clause with proprietary effect (goods-law effect) as referred to in Article 3:83(2) of the Dutch Civil Code.

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Consequences of Invalidity or Voidability

If one or more provisions of these Terms and Conditions are found to be invalid or voidable, this shall not affect the validity or enforceability of the remaining provisions.
Any provision that is held to be invalid or voidable shall be replaced by a valid and enforceable provision that most closely reflects the original intent of Kluist when drafting these Terms and Conditions.

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Governing Law and Competent Court

All agreements between the Parties shall be governed exclusively by the laws of the Netherlands.
Any disputes arising out of or in connection with an agreement between the Parties shall be submitted exclusively to the competent court in the judicial district in which Kluist has its registered office or principal place of business, unless mandatory law provides otherwise.

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Effective as of: 1 January 2020

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