Revised and reissued in November 2024 by the Royal Dutch Building Ceramics Association (KNB)
General
1. These general terms and conditions apply to every offer, quotation, order confirmation, agreement, and delivery of goods (hereinafter "products") - including but not limited to stones, stone strips, rubble and of pieces - and/or services from the user of these general terms and conditions (hereinafter "seller") towards their counterparty (hereinafter "buyer") and to all resulting legal relationships, unless explicitly agreed otherwise in writing between seller and buyer. They also apply to all subsequent offers, agreements, and deliveries, regardless of how they are concluded, as well as to the delivery, use and (the return of) the packaging. Products also include the packaging provided by the seller.
2. The applicability of any purchasing conditions applied by the buyer is excluded, if and insofar as they are in conflict with these terms and conditions, unless they are expressly accepted in writing by the seller in relation to any specific transaction. Such acceptance does not imply that the purchase conditions (will) also apply to other transactions of the buyer.
Offers and order confirmations
3. All offers and quotations from the seller are non-binding. Upon withdrawal or expiration of the validity period, offers and quotations are no longer valid. The agreement is only concluded by written order confirmation by the seller or the (beginning of) actual execution by the seller or another explicit or implicit acceptance by the seller of the order.
4. In the case of an order for delivery in multiple parts, the agreement is deemed to have been concluded as a whole if the first partial delivery takes place.
5. Amendments to the agreement, of any kind, shall only be effective if they have been agreed upon in writing between the seller and the buyer. If the buyer, after conclusion of the agreement, still desires changes in its execution, it is up to the seller to determine whether and, if so, under what (additional) conditions these changes can still be accepted within the framework of the agreement. The seller is authorised to charge the buyer for any additional costs incurred due to changes (of any nature) in the agreement.
Deliveries
6. All deliveries shall be made Ex Works/Ex Factory (EXW), loading at the seller's factory, in accordance with the Incoterms 2020 of the International Chamber of Commerce in Paris, unless expressly agreed otherwise. Insofar as the parties agree on other Incoterms in the course of trade contrary to this article, it concerns the Incoterms 2020 of the International Chamber of Commerce in Paris, unless expressly agreed otherwise.
7. The buyer is obliged to ensure that the carrier is informed of the relevant product information, including the potential fluctuation in the weight of the goods.
8. After loading, the seller is not obliged to consider complaints regarding colour, quality, shape, quantities, packaging, etc., notwithstanding the provisions in articles 15 to 27. Upon the transfer of ownership, the buyer is deemed to be familiar with the quality of the purchased goods and their usability.
9. The seller shall endeavour to deliver within the delivery period specified in the agreement. Unless otherwise agreed in writing, specified delivery periods for the seller are only indicative and never binding. Exceeding the delivery term does not constitute default as referred to in Article 6:83 sub a of the Dutch Civil Code, unless it has been expressly and in writing agreed between the seller and buyer that a delivery term will be considered binding. In the latter case, the seller is only liable for the demonstrable damage suffered by the buyer due to the delay in delivery, up to a maximum of the invoice amount of the delayed part of the delivery. The buyer is not entitled to suspend or fail to fulfil any obligation towards the seller in the event of exceeding a delivery period agreed upon as binding. In all other cases of delivery delays, the seller is not liable for any damage that may arise for the buyer from such delays.
10. If "delivery free to site" or "free at place of destination" is stipulated, then that clause is deemed to relate solely to the transport costs and transport risk and hence not to the place and time of transfer of ownership and therefore also not to the moment of risk transfer of the delivered goods. In that case, the price includes the transportation of the goods to the place of unloading, provided that it is located on a paved road or can be reached with a full load by the normally used means of transport. Delivery shall then always take place beside the vehicle or vessel, at the location indicated by the buyer, with due regard to the aforesaid.
11. In the case of "ex works" delivery, transport is arranged by the buyer. The buyer and the seller may agree that the transportation is arranged by the seller at the expense and risk of the buyer. The seller may also charge the buyer for the costs of any transport insurance taken out by him. If the seller carries out loading and/or unloading activities, this is also done at the buyer's expense and risk.
Purchase
12. The buyer is obliged to take delivery of the purchased goods within the delivery and/or call-off period(s) specified in the agreement. If no delivery period has been determined or if it has been stipulated that delivery will be made on demand without deadlines for such demand being set, acceptance must occur within 3 months from the date on which the agreement was concluded in accordance with Article 3.
13. If the buyer has not taken delivery of the purchased goods in a timely manner, the seller shall send the buyer a written warning and the buyer shall be in default after the expiry of 5 working days following that written warning, by the mere lapse of that period without any (further) notice of default being required. In addition to other rights which then arise for the seller by law and by these general terms and conditions – in particular also pursuant to article 14 – as a result of the buyer's default, the seller has the right to dissolve the agreement for the unexecuted part by simple notification without any judicial intervention. The seller is also entitled to store, or have stored, the goods sold at the buyer’s expense and risk, and to charge the buyer for the associated costs either in full or, at the seller’s discretion, at a fixed rate of 1% of the value of the stored goods per full calendar month.
14. If the buyer cancels the order in whole or in part or fails to fulfil their purchase obligation, the buyer owes the seller:
a. in the case of generic orders (products not produced on special request): an amount of 25% of the agreed sale price of the goods that are not purchased;
b. for specific orders (products produced on request): 100% of the agreed sale price of the goods. The aforementioned amounts are owed by the buyer without any notice of default being required and regardless of whether the seller actually suffers any damage as a result of the cancellation or the failure to take delivery of the products. With regard to already delivered products is never permitted The buyer is obliged to compensate the seller for the damages incurred by the seller as a result of the cancellation or failure to take delivery, insofar as these damages exceed the amount the buyer owes under the aforementioned terms. The provisions of this article do not affect the seller's right to demand performance with possible damages instead of the aforementioned amount.
15. Delivery of up to 10% more or less than the quantity ordered is permitted. Any excess or shortfall shall be invoiced at the unit price, unless otherwise agreed.
Condition and inspection
16. buyer is entitled and obliged to inspect the delivered goods without delay. A consignment note, delivery slip or similar document provided upon delivery of the goods shall be deemed to accurately reflect the quantity of the goods delivered, unless the buyer immediately notifies the seller in writing of any objections upon receipt of the products.
17. Insofar as it has been agreed that the quality shall be according to a sample, that sample serves to determine the average quality of the stones. A stone (type) sample issued by the seller or received by the buyer in connection with the sale only serves as a sample for determining the average quality if this has been expressly agreed in writing.
18. The buyer is entitled to have the goods inspected at their own expense prior to delivery. If the buyer has requested such an inspection, the seller is obliged to inform the buyer in good time before loading about the time and place where the inspection can take place. If the seller has not fulfilled this obligation, the buyer is entitled to report their objections regarding the delivered goods as soon as possible but no later than 8 days after the delivery of the goods.
19. If the buyer has omitted an inspection or, after an inspection and before delivery, has not raised any objections regarding the condition of the goods to be delivered, the buyer no longer has any right to make claims concerning the delivered goods. If defects in the goods are discovered after the inspection that could not have been detected with a normal and customary inspection in the industry, the buyer may still raise objections, provided that they do so as soon as possible and no later than 8 days after delivery.
20. Differences in colour and structure are inherent to the material of coarse ceramic products and therefore cannot be regarded as a defect in the product. Minor damages that do not affect the usability of the products cannot be classified as a defect in the product. Defects in a part of the delivery do not entitle refusal of the entire batch.
Packaging
21. The buyer is obliged to store packaging not intended for single use, including plastic pallets, in good condition and under the correct hygienic conditions until their return takes place. The buyer may not keep these in use or allow third parties to use them. In the event of damage to or loss of packaging that is not intended for single use, the buyer is obliged to reimburse the seller for the repair or replacement costs, as well as any additional costs resulting from late return. The seller may charge a deposit for pallets that it takes back or that are part of a return pallet system.
Complaints and liability
22. Any right of the buyer to make a claim concerning the delivered goods expires in any case as soon as the goods have been processed, modified, sold, or passed on to a third party.
23. The delivered goods, which are the subject of a complaint, must be kept untouched by the buyer as they were at the time of unloading until the seller has had the opportunity to investigate the validity of the complaint, which he is obliged to proceed with without delay.
24. Under penalty of forfeiture of the buyer's right to complain, all complaints must be made in writing within the periods specified in these general terms and conditions. Insofar as no shorter period is stipulated in these general terms and conditions or such shorter period cannot reasonably be required of the buyer, a complaint must in any case be made no later than within 8 days after the defects in the delivery have come to the buyer's attention or the buyer should reasonably have been aware of those defects, notwithstanding the provisions of articles 22 and 23. Any complaint must be made with precise specification of the nature of the complaints.
25. The seller is not liable for any damage (including costs and other financial disadvantage), unless this is the result of an act or omission by the seller's board or management, caused either intentionally or recklessly and with the knowledge that such damage would very likely result from it.
26. Under no circumstances shall the seller be liable for:
a. physical damage caused by the products;
b. consequential damage (which in any case includes business damage, damage due to business interruption, loss of profit, loss of income, loss of use by the buyer, damage caused by death or injury, damage due to the use of the delivered products, costs related to (objecting to) administrative and/or criminal enforcement by authorities, recall(s), legal assistance, etc.);
c. damage resulting from actions or omissions of subordinates engaged by the seller and/or (self-employed) auxiliary persons or suppliers, including employees of an organisation affiliated with the seller;
d. damage resulting from the provision of incorrect or incomplete documentation or information by the buyer to the seller, even when this information and documentation originates from third parties, or damage otherwise resulting from instructions, an act or omission by the buyer, their subordinates and/or (independent) auxiliaries or suppliers.
27. The liability of the seller, on any grounds whatsoever, is limited to a maximum of the invoice value of the delivered goods in respect of which the seller has found justified. complaints relate either to the exchange of those goods for similar goods or to a reduction in the purchase price of those goods, all at the seller's discretion. If the seller proceeds with the exchange of the goods, the associated transport costs shall be borne by the seller. If the seller proceeds to reduce the purchase price, that reduction will consist of that part of the purchase price attributable to the defective goods or to the extent of the defect in the goods. If the defect is of such a nature that the buyer can no longer use the goods and the buyer then wishes to dispose of the defective goods, these shall be at the seller's disposal, who will then remove the goods at their own expense. The seller shall, to the extent that is reasonable, also grant a reduction in respect of the transport costs attributable to those defective and no longer usable goods. The liability of the seller is in all cases limited to the amount that is paid out by the seller's liability insurer in the relevant case. If for any reason no payment is made under the aforementioned insurance, this maximum is set at EUR 20,000 in the event of personal injury and EUR 10,000 in all other cases (including property damage and financial loss). All further claims of any kind and from anyone are excluded.
28. The buyer shall provide all necessary cooperation in the seller's investigation into the cause, nature, and extent of the damage. If such cooperation is not provided, the buyer loses the possibility of compensation for the damage.
29. The buyer indemnifies the seller against any liability towards third parties (including but not limited to auxiliary persons and employees of the buyer and seller) arising from or related to the agreement and/or the delivered goods, except insofar as these claims result from intent to cause damage or recklessness with the knowledge that damage is very likely to result therefrom on the part of the seller executives or the management of the seller.
30. The buyer is not permitted to make negative statements about the seller and/or the delivered product in the media, social media or otherwise, failing which the buyer shall be liable to the seller for any damage suffered by the latter, including but not limited to reputational damage.
Auxiliary persons
31. The seller may engage third parties for the execution of the agreement without prior consent from the buyer. In the event the seller has engaged a third party for the execution of the agreement, these general terms and conditions also serve to protect this third party against parties other than the seller and can be invoked by this third party against parties other than the seller.
Prices
32. The prices quoted by the seller are based on delivery Ex Works/Ex Factory according to the Incoterms 2020 of the International Chamber of Commerce in Paris and the cost components applicable on the date of the offer. Any increases in cost components, of whatever nature, occurring after the offer and/or during the performance of the agreement shall be passed on by the seller to the buyer in the price for those parts of the agreement that have not yet been performed at the time the increases occur.
33. The offered and agreed prices are in euros and exclusive of VAT. Unless expressly agreed otherwise, any other costs related to the delivery and/or other taxes, levies, and duties due under the law, packaging, loading, transportation, and insurance costs are not included in the price. The seller is entitled to charge this retrospectively.
34. The seller is also entitled to apply a credit limitation surcharge of 2%, which may be deducted from the invoice if payment is made within thirty days of the invoice date.
Payment and security
35. Unless expressly agreed otherwise in writing, payments must be made within 30 days of the invoice date, without any discount or set-off on any grounds whatsoever. Complaints relating to the delivered goods do not entitle the buyer to suspend payment and/or invoke a right of retention. The time of payment shall be the moment at which the amount due is credited to the seller's account. Incoming payments shall be applied firstly to settle interest and costs and then the oldest outstanding principal amount(s), even if the buyer declares otherwise in this regard.
36. Payments must be made from bank accounts that can be directly traced to the buyer, failing which any payments made may be immediately refunded. In that case, the buyer will not be discharged of its debt. Complaints regarding invoices must (also) be submitted in writing and within five (5) days of the invoice date. If the invoice amount has not been paid on the due date, the buyer is in default by operation of law towards the seller without any reminder or notice of default being required. The buyer shall then owe a default interest of 15% per annum (or part thereof) from the due date, as well as extrajudicial collection costs amounting to at least 15% of the amounts owed by the buyer, with a minimum of EUR 125.00.
37. During the term of the agreement, the seller is entitled at any time to demand advance payment or security for the payment.
38. All claims of the seller against the buyer are immediately and fully due and payable: a. if the buyer fails to meet their payment obligations or other obligations towards the seller on time or at all;
b. if the buyer refuses to comply with the seller's demand as referred to in article 37;
c. if the bankruptcy of the buyer is filed for or if the buyer applies for suspension of payment;
d. if any asset of the buyer is seized;
e. if the buyer sells or liquidates their business.
39. In the cases described in Article 38, the seller, in addition to the other rights provided by law and the agreement—including these general terms and conditions—has
– grant them the right either to suspend their obligations or to dissolve the agreement in whole or in part by a simple notification without any notice of default or judicial intervention being required, without prejudice to the seller's right to claim damages in addition to or instead of suspension or dissolution.
40. If the seller is wholly or largely upheld in a legal proceeding, all costs incurred by latter in connection with this proceeding shall be borne by the buyer.
Retention of title
41. Until the buyer has fulfilled all of its payment obligations,
including any additional costs, the seller retains ownership of the sold and/or delivered goods. This reservation applies in respect of claims for payment of all goods delivered or to be delivered by the seller to the buyer pursuant to any agreement, and services and work performed or to be performed, as well as in respect of claims due to the buyer's failure to comply with this/these agreement(s), which therefore also includes these general terms and conditions.
42. The buyer is obliged to indemnify the seller for costs that the seller, as the owner of the goods, must incur after the transfer of risk, but before the transfer of ownership, including but not limited to storage and/or clearance of the goods.
43. If the buyer fails to fulfil their obligations towards the seller, or if the seller has reasonable grounds to fear that the buyer will fail to fulfil those obligations, the seller is entitled to reclaim the delivered goods without prior notice, without prejudice to the seller's right to compensation.
44. If the agreement is terminated by the seller, the buyer must immediately make the goods available to the seller. The buyer has no right of retention concerning those items and shall not impose any conservatory attachment on the items.
45. The buyer grants the seller, or third parties designated by the seller, permission to enter their business premises, warehouses, factory halls, etc., for that purpose. If the law of the destination country of the purchased goods provides for more extensive possibilities regarding the retention of title than specified above, it is agreed between the parties that these more extensive possibilities are deemed to have been stipulated for the benefit of the seller, with the understanding that if it is objectively impossible to determine to which more extensive rules this provision refers, the aforementioned stipulations regarding the retention of title shall continue to apply.
46. If the seller has repossessed goods in accordance with Article 43, the buyer will be credited for the value of the repossessed goods as determined by the seller at the time of repossession, minus the costs associated with the repossession.
47. The buyer may, in the course of their normal business operations, dispose of the goods delivered under retention of title. In any case, the provision of security to third parties and the disposal in the context of the whole or partial transfer of the buyer's business are not considered as normal business operations. If the buyer has control over the goods, the buyer is obliged on behalf of the seller to establish a silent or public right of pledge on the claims arising from this control, at the seller's discretion.
Force majeure
48. If the seller is prevented by force majeure from (timely) performance, they shall have the right to extend the delivery period by the duration of the force majeure or to dissolve the agreement, to the extent that it has not yet been executed, without being obliged to pay any compensation. Force majeure shall include, among others: war, riots, civil commotion, terrorism, fire, power failure, natural disasters, disturbance, strike and lockout, breakdown of machinery and/or tools, unavailability of transport, road blockades, delays in the supply of raw materials or energy, import or trade restrictions, government measures, epidemic and pandemic and related circumstances. (government) measures/recommendations, restrictions in the supply of energy and/or significant price increases of energy and/or energy supply not foreseen by the seller, either by the network operator or by the supplier, as well as any circumstance whatsoever, which makes it reasonably impossible or onerous for the seller to perform the agreement (in a timely manner).
49. If delivery in instalments has been agreed, the preceding provision applies to each delivery separately.
Advice
50. Advice given or proposals or instructions made regarding materials, constructions, executions, and applications by or on behalf of the seller are always non-binding. The seller shall never be liable for any damage whatsoever that may arise from advice, proposals, or instructions from the seller.
Severability clause
51. If one or more provisions of the agreement concluded between the seller and the buyer - which therefore also includes these general terms and conditions - should prove not to be legally valid, the remaining provisions shall remain fully in force. In such a case, the invalid provisions shall be replaced by provisions that, in view of the intentions of the parties, most closely approximate the invalid provisions in a legally effective manner.
Sanctions and export restrictions
52. The buyer guarantees compliance with all applicable sanctions and restrictions laid down in and arising from all applicable sanction and export control regulations (including but not limited to those of the Netherlands and/or the United States, and/or the European Union and/or the United Kingdom and/or the United Nations) in force at the time of the conclusion of the agreement and during its execution.
53. seller is entitled to terminate the agreement immediately if they know or reasonably suspects that: the goods are directly or indirectly intended for sanctioned parties, countries, or industries;
sanctioned parties are directly or indirectly involved in the financial transaction; or if the financial institutions involved in the transaction have serious concerns about this, resulting in their refusal to authorize and/or process the financial transaction.
if at any time the goods were (to) qualify as Dual Use goods and for which
– whether categorically or due to the lack of sufficient end use / end user information - no exemption or permit is granted; or
in any other way there would be intentional circumvention of the objectives of the applicable sanction and export regulations.
Anti-corruption and unusual transactions
54. The buyer guarantees compliance with all relevant and/or applicable legislation in the field of anti-corruption and competition – including but not limited to the legislation of the Netherlands, the European Union, the United States of America, the United Kingdom, and any other country relevant to the execution of the agreement – in all its actions related to the execution of the agreement.
55. The buyer acknowledges that, pursuant to applicable regulations for the prevention of money laundering and the financing of terrorism, the seller is required to report unusual transactions to the competent authorities.
56. The seller is entitled to terminate the agreement immediately if it reasonably suspects that the buyer and/or third parties engaged by the buyer are in breach of the regulations to prevent corruption, money laundering, and/or financing of terrorism unusual transactions.
Know your (end) customer / (end) use
57. The buyer acknowledges that, under applicable regulations, the seller may be required to identify and verify the identity of the buyer and/or end user and/or end use. The buyer must provide immediate and full cooperation in this regard. To this end, the buyer shall, at the seller's request, provide an end use/end user statement as far as can reasonably be required. The seller shall record and retain the required data in accordance with applicable regulations. seller is entitled to terminate the agreement immediately if the buyer fails to sufficiently cooperate with its obligations under this article.
Provision of Information
58. The seller shall, upon reasonable and timely request from the buyer, as far as reasonably possible, insofar as it does not conflict with the GDPR and confidentiality obligations, and provided it does not involve business-sensitive information, provide specific information requested by the buyer that is necessary for the buyer to comply with sustainability reporting obligations. The seller is entitled to request a reasonable fee for the handling of such requests and the provision of such sustainability information.
Limitation
59. Without prejudice to the provisions of articles 22 and 24 of these terms and conditions, any claim against the seller must be brought before the competent court no later than twelve (12) months after the delivery of the goods to which the claim relates, failing which any right, including but not limited to the right to compensation and/or performance, shall lapse.
Governing Law and Jurisdiction
60. Offers made by the buyer and the agreement between the seller and the buyer shall be governed by Dutch law, to the exclusion of the Vienna Sales Convention. This also applies to all agreements entered into with buyers residing or established abroad. All disputes arising from this legal relationship and any resulting agreements shall be settled by the competent court in the seller's place of establishment or, at the seller's discretion, by the competent court in the buyer's place of residence or establishment. The foregoing does not affect the fact that parties may, by mutual agreement, decide to resolve disputes through mediation, binding advice, or arbitration.
Language
61. In the event of discrepancies between the Dutch text of these general terms and conditions and the translation thereof in a foreign language, the Dutch text shall prevail.
These General Terms and Conditions were filed at the registry of the District Court in Arnhem in October 2024 under number 31/2024.