Terms and Conditions.

Part A - General provisions

1. Definitions

1.1 Any capitalised names or terms in these general terms and conditions have the following meaning:

Building Contract	The Agreement for the construction of a greenhouse by Kerklaan on the Client’s instructions and the Agreement relating to the installation of products by Kerklaan for the Client;
Purchase Agreement	The Agreement for the purchase of Kerklaan products by the Client;
Client	The other party to the Agreement with Kerklaan;
Kerklaan	Joost Kerklaan B.V., Chamber of Commerce number 27234359 and Kerklaan Projects B.V., Chamber of Commerce number 95530568, both trading as Kerklaan Greenhouses & Horti Materials and/or their affiliated natural and legal persons using these Terms and Conditions;
Agreement	All agreements between Kerklaan and the Client, where Kerklaan acts as the seller or contractor;
Parties	Kerklaan and the Client;
Conditions	The provisions set out in these general terms and conditions.

2. General

2.1 The Client cannot derive any rights from advice or information provided by Kerklaan that does not relate to the agreed order.

3. Offers, prices and indexation

3.1 All of Kerklaan’s offers are free of obligation and revocable, even if they include a deadline for acceptance. Kerklaan reserves the right to revoke an offer up to two working days after the day it received the acceptance. Offers, including those contained in brochures and price lists issued by Kerklaan, will be binding only after a Kerklaan representative who is authorised in accordance with the Commercial Register of the Chamber of Commerce has confirmed the Agreement or order in writing. In the absence of written confirmation, the fact that Kerklaan has commenced performance or delivery may be regarded as tacit confirmation of the Agreement.

3.2 Illustrations, drawings, weights, dimensions and colours forming part of an offer by Kerklaan are not binding unless Kerklaan has expressly guaranteed their accuracy in writing.

3.3 If the Client, an intermediary or other third party provides Kerklaan with data, drawings or similar information, Kerklaan may assume their accuracy and completeness. Its offer and performance of the agreed work will be based on this information. The Client must promptly communicate changes in the data provided to Kerklaan.

3.4 Kerklaan is not obliged to warn the Client about, or to independently investigate, any inaccuracies in the order, defects or unsuitability of products supplied by the Client, or errors or defects in plans, drawings, calculations, specifications or instructions provided by or on behalf of the Client.

3.5 An offer or commitment made by Kerklaan will be binding only if confirmed in writing by Kerklaan.

3.6 The application, acquisition and retention of all permits, exemptions and other public-law permissions required for the fulfilment of the order rests entirely and exclusively with the Client. Kerklaan is not responsible for, and will not take any action in relation to, applying for such permits.

3.7 If an Agreement is entered into under the condition precedent or subsequent that the necessary financing and/or permits are obtained, and the Client proves that it is unable to obtain these within eighteen months of the conclusion of the Agreement, the Parties will try to still perform the Agreement, adapted to the available financial resources and/or the restrictions of the permit to be obtained.

3.8 If an order depends on obtaining financing and/or permits, and these cannot reasonably be obtained within a period to be specified by Kerklaan, Kerklaan will be entitled to compensation for loss of profit. This applies if it appears that within eighteen months of the expiry of the stipulated period, the Client has given the order, or a substantial part of it, to a third party. The loss of profit is deemed to amount to at least 25% of the contract value excluding VAT of the Agreement whose conclusion was made conditional, without prejudice to Kerklaan’s right to claim the actual loss of profit suffered.

3.9 Unless expressly stated otherwise, the prices stated in an offer are expressed in euros and exclude turnover tax, other government levies or taxes, as well as other costs, such as travel, accommodation, packaging, storage and transport costs, costs for loading, stowage, unloading and cooperating in customs formalities. These prices relate only to the work and/or deliveries expressly described in the offer. Unless agreed otherwise in writing, the prices also do not include costs of earthwork, pile driving, cutting, demolition, foundation, repair or other construction work; costs of connection to gas, water, electricity or other structural facilities; and costs of disposing of materials, building materials, waste and the like. This list is not exhaustive.

3.10 Unless otherwise agreed in writing, all prices are based on the price level at the time the Agreement is concluded and apply ‘ex works’ or ‘ex warehouse’, exclusive of VAT, transport and delivery costs, packaging, insurance, levies and taxes.

3.11 Kerklaan may adjust prices if cost-determining factors change, including, but not limited to, increases in material prices due to armed conflicts and/or epidemics, provided that a period of at least fourteen days has passed since the Agreement was concluded. Although such a price change may be implemented without prior notice, it must be communicated and specified to the Client as soon as possible. The payment of any surcharge is made in accordance with the provisions of Articles 4, 16 and 21 of these Conditions.

3.12 If the price increase referred to in this Article 3.11 totals more than 20% of the agreed price excluding VAT, the Customer may terminate the Agreement early by written notice, provided that this is done within seven days of being informed of the increase. In that case, the Client will not be entitled to compensation. In this case, Kerklaan will be entitled to compensation from the Client for the costs it has incurred. Such compensation will be at least 10% of the contract value, without prejudice to Kerklaan’s right to claim in addition compensation for costs actually incurred.

3.13 Kerklaan may also adjust the agreed price if the performance of the Agreement extends over a period longer than three months. Indexation will then take place on 1 January of any calendar year. The monthly price index is changed in accordance with Statistics Netherlands’ price index called ‘Production buildings’ (2015 = 100). If Statistics Netherlands ends or substantially changes this index series, a comparable and generally accepted index will be used. A price adjustment under this article will not entitle the Client to termination, suspension or any other form of legal action.

4. Payments

4.1 Unless agreed otherwise in writing and without prejudice to the provisions of Articles 16 and 21 of these Conditions, the Client must make all payments within eight days of the invoice date, without any right to discount, suspension or set-off. Payment must be made to the bank account number provided by Kerklaan.

4.2 If the Client fails to fulfil its payment obligation, it will be obliged, at Kerklaan’s request, instead of paying the agreed sum of money, to transfer ownership of an item or article to Kerklaan in settlement of the outstanding claim (tendering in payment), provided that such item or article can reasonably and fairly be considered equivalent to the original payment obligation.

4.3 If payment is not made on time, the Client will owe interest on the outstanding amount, by operation of law, starting from the day following the agreed due date until the day of payment in full. If no specific due date has been agreed, interest will commence 30 days after the claim falls due. The interest rate is 12% per annum, unless the statutory commercial interest rate is higher, in which case that higher rate will apply. For the purpose of calculating interest, part of a month will be considered a full month. After the end of each calendar year, the principal amount is increased by the interest accrued over that year, after which interest is calculated on the amount so increased (compound interest).

4.4 If the original order and/or job is deviated from with regard to delivery, construction and/or assembly, at the request of the Client and with the agreement of Kerklaan, the resulting change will be invoiced to the Client based on the prices applicable at that time.

4.5 Regardless of whether Kerklaan has delivered the agreed work in full, all amounts due or to become due to the Client under the Agreement will become immediately payable in the following cases:

1. if a payment deadline has been exceeded;
2. if the Client does not take delivery of the item or does not cooperate to enable Kerklaan to deliver;
3. if the Client has not provided security as referred to in Article 6 of these Conditions immediately on request;
4. if there is a petition for the Client’s bankruptcy or a moratorium on the payment of their debts;
5. if products or receivables of the Client are attached;
6. if the Client (if a legal entity) is dissolved or liquidated;
7. if the Client (if a natural person) applies to be admitted to statutory debt restructuring, is placed under curatorship or dies.

4.6 The Client must object to the invoice in writing within the payment period. If the payment period exceeds 30 days, the objection must be submitted in writing to Kerklaan no later than 30 days after the invoice date. If the Client has not objected in time, the right to object will lapse and the Client will be deemed to have unconditionally accepted the invoice.

4.7 If the Client fails to fulfil a payment obligation towards Kerklaan, Kerklaan may suspend performance of the Agreement. If and insofar as Kerklaan is also entitled under any other provision of this Agreement to terminate or partially terminate the Agreement, it may do so without being obliged to resume performance after payment. If Kerklaan decides to resume performance after receiving full payment, it will do so in accordance with its then current schedule. Kerklaan will never be liable for damage suffered by the Client as a result of suspension, including damage due to failure to meet the originally agreed delivery date.

5. Deadlines

5.1 Deadlines agreed in writing start to run on the day Kerklaan confirms the Agreement in writing, provided that the Client and Kerklaan have agreed on all commercial and technical details in due time, Kerklaan has all necessary information – including final and approved drawings – and the products to be provided by the Client have been received in due time. The agreed payment or instalment payment must also have been paid and all other conditions for fulfilling the order must have been met. If these conditions are not met, the original deadline will lapse and Kerklaan may set a new deadline, taking its schedule into account.

5.2 An agreed deadline will lapse if circumstances occur that Kerklaan was unaware of when the deadline was set and which are at the Client’s expense and risk, including changes to the order, contractual variations or suspension by Kerklaan. In such a case, Kerklaan may set a new deadline, taking its schedule into account.

5.3 If there is a change to a deadline as referred to in Article 5.1 and Article 5.2, the Client must compensate all costs and damage incurred by Kerklaan without the need for any notice of default.

5.4 An agreed deadline is set based on the expectation that the circumstances foreseeable at the conclusion of the Agreement will remain unchanged during the performance of the work, and that third parties will deliver the necessary materials to Kerklaan in due time.

5.5 If there is a delay due to changed circumstances and/or the failure of third parties to deliver materials in due time, an agreed deadline will be extended by the duration of the delay.

5.6 Kerklaan will endeavour to meet an agreed deadline. However, in the absence of a written Agreement in which a deadline is expressly designated as fatal and without prejudice to the provisions of Article 9, Kerklaan will not be liable for the consequences of exceeding a deadline. Exceeding a deadline will not entitle the Client to receive compensation or a penalty, to refuse delivery of the products, or to terminate the Agreement in whole or in part. The Client must indemnify Kerklaan against third-party claims that arise from exceeding the delivery period.

6. Retention of title and securities

6.1 Kerklaan retains ownership of all products delivered to the Client until all claims by Kerklaan against the Client have been settled in full.

6.2 If Kerklaan cannot invoke its retention of title because the delivered products have been destroyed by mixing, specification or accession, the Client must pledge the newly formed products to Kerklaan immediately on request, as security for all that the Client owes or will owe Kerklaan.

6.3 As long as ownership has not been transferred to the Client, the Client must not pledge the products or grant third parties any right to them, except as otherwise provided in this Article 6.

6.4 As long as the delivered products are subject to retention of title, the Client must not rent out, encumber or alienate them, except with Kerklaan’s prior written consent.

6.5 The Client must treat the products delivered under retention of title with due care and to store them separately as Kerklaan’s recognisable property.

6.6 The Client must insure the products against fire, explosion, water damage and theft during the period in which the retention of title is in force. Immediately on Kerklaan’s request, the Client must provide the relevant insurance policies for inspection. Immediately at Kerklaan’s request, the Client must pledge all its claims against the insurers relating to these products to Kerklaan in accordance with Section 3:239 of the Dutch Civil Code, as additional security for the satisfaction of Kerklaan’s claims against the Client.

6.7 If the Client fails to fulfil its obligations to Kerklaan, or if Kerklaan has a well-founded fear that the Client will not fulfil its obligations or do so on time, Kerklaan may repossess the products delivered under retention of title. After the repossession, the Client will be credited the market value of the products at the time of repossession, capped at the originally agreed amount less all costs incurred by Kerklaan in connection with the repossession. After invoking the retention of title, Kerklaan will be entitled to do so at any time. The Client must cooperate fully and unconditionally in this regard and provide Kerklaan with immediate and unhindered access to all locations where the relevant products are located.

6.8 If the provisions of the previous paragraph of this Article 6 are breached, the Client will owe Kerklaan an immediately payable fine of €250.00 (two hundred and fifty euros) per day for each breach, capped at €25,000.00 (twenty-five thousand euros), without any further notice of default being required. This contractual penalty will additionally not affect Kerklaan’s right to specific performance and full compensation under the law.

6.9 If the Client does not take delivery of the products after the expiry of the agreed delivery period, they will remain at Kerklaan’s disposal and be stored by or on behalf of Kerklaan at the Client’s expense and risk. This does not affect Kerklaan’s right to invoke Section 6:90 of the Dutch Civil Code.

6.10 With respect to all products it has or will have in its possession for whatever reason, Kerklaan has a right of possessory pledge and a right of retention for all existing and future claims it has or will have against the Client. This pledge and right of retention applies against any person seeking delivery of those products.

6.11 Regardless of the agreed payment terms, the Client must provide any security for payment requested by Kerklaan, immediately at Kerklaan’s request, both upon and after the conclusion of the Agreement and before its performance.

If the Client fails to provide security within the specified period, it will be immediately in default. In that case, Kerklaan may suspend or terminate the performance of the Agreement and recover any damage from the Client.

6.12 If the products are delivered in Germany, the ‘comprehensive’ and ‘extended’ retention of title under German law will apply to these products in addition to the ‘normal’ retention of title. This means that all current and future deliveries are subject to retention of title (comprehensive retention of title). In addition, Kerklaan’s retention of title continues to apply to products that are processed, treated, mixed, incorporated or resold by the Client (extended retention of title). This Article 6.12 of these Conditions, unlike all other provisions in these Conditions, is governed by German law and excludes the Vienna Convention on Contracts for the International Sale of Goods.

7. Warranty and complaints

7.1 The Client must cooperate free of charge in any investigation of a complaint about the work delivered, as carried out by or on behalf of Kerklaan. If the Client fails to cooperate, all rights that they could derive from the complaint in question will lapse.

7.2 If Kerklaan properly rejects a complaint about the work delivered, the Client will be obliged to reimburse Kerklaan for the costs reasonably incurred in investigating that complaint.

7.3 The Client must report glass pane breakage(s) in writing to Kerklaan immediately on delivery, or at the latest on completion. In the absence of a timely and correct notice, any claim for repair, replacement or any form of warranty in relation to windows ceases to apply. After delivery or completion, Kerklaan accepts no liability for broken windows, regardless of the cause.

7.4 If the agreed work has not been properly performed, Kerklaan may choose whether it will still perform the work properly, replace all or part of the delivered item, or credit the Client for a reasonable part of the order price.

7.5 If Kerklaan chooses to still perform the work properly or to replace all or part of the delivered item, the Client must always give it the opportunity to do so. The method and time of performance will be determined by Kerklaan. If the agreed work consisted or partly consisted of processing material supplied by the Client, the Client must supply new material at their own expense and risk.

7.6 The Client must send products or parts of the delivered work to be repaired or replaced by Kerklaan to Kerklaan on Kerklaan’s request. Transport, shipping, dismantling and assembly will be at the Client’s full expense and risk. In addition, Kerklaan’s travel, accommodation and travel time costs will also be payable by the Client. Kerklaan may require security or advance payment for these costs.

7.7 Kerklaan will only be obliged to perform the warranty after the Client has fulfilled its payment and other obligations in full.

7.8 The warranty does not apply to defects resulting from:         

• normal wear and tear;
• improper or incorrect use;
• negligence;
• inadequate or incorrectly performed maintenance;
• installation, dismantling, modification or repair by the Client or third parties;
• defects in, or unsuitability of, products, materials or tools originating from or prescribed by the Client.

7.9 No warranty is provided for:

• products that were not new upon delivery;
• work consisting of inspection, repair or overhaul;
• products under a manufacturer’s warranty;
• products for which third parties have provided the Client with a warranty.

7.10 The warranty is also excluded if it concerns deviations that are technically unavoidable within reason, involve a qualitative improvement, or do not significantly limit the functionality of the item, given the purpose for which Client uses the item in the normal course of their business.

7.11 Complaints relating to non-externally observable defects must be reported in writing to Kerklaan as soon as possible, but no later than ten days after the defect has been observed. If this period is exceeded, any right of the Client in respect of the defect in question will lapse.

7.12 After any repair or replacement under this warranty scheme, the original warranty period will not be extended; the warranty ends when the original period would have expired.

7.13 No warranty will be provided for defects resulting in whole or in part from government regulations relating to the nature or quality of the materials used.

7.14 If the Client carries out repairs or modifications, has them carried out by third parties, or defaults on their payment obligations during the warranty period without Kerklaan’s prior written consent, Kerklaan’s warranty obligation will immediately lapse. In such a case, Kerklaan will not be obliged to reimburse, among other things, repair costs charged by third parties.

7.15 Products or parts of the completed work for which a warranty claim is made may only be returned with Kerklaan’s prior consent.

7.16 In case of replacement of products under warranty, Kerklaan’s obligation will be limited to delivering a replacement copy of the item concerned free of charge. Kerklaan will not be obliged to install the replacement item, nor to reimburse any associated costs. The replacement item will be installed entirely at the Client’s expense and risk.

7.17 Kerklaan will not be obliged to repair any defects in the work delivered or defects in products, regardless of the nature or seriousness of the defect. The Client expressly accepts that defects will only be repaired if and insofar as the Kerklaan voluntarily decides to do so.

7.18 The provisions of this Article 7 apply by analogy to any claims of the Client, whether based on breach of contract, non-conformity or any other legal basis.

8. Liability

8.1 Kerklaan’s total liability for attributable failure to comply with the Agreement will be capped for each harmful event at the amount paid out by its liability insurance in the case in question. If no payment is made, liability will be capped at the payments made by the Client to Kerklaan in the six-month period before the harmful event and in any case at an amount of €50,000.00 (fifty thousand euros).

8.2 If Kerklaan has insurance taken out by or on its behalf that provides cover, its obligation to pay compensation will be capped at the amount paid by the insurer in the case in question.

8.3 If Kerklaan does not have insurance as referred to in the previous paragraph of this Article 8, or if for any reason no payment is made under that insurance, its obligation to pay compensation will be capped at 15% of the order price (excluding VAT). If the Agreement consists of several parts or partial deliveries, this cap will apply to each part or partial delivery to which the liability relates. In the case of a continuing performance contract, the obligation to pay compensation is capped at 15% (excluding VAT) of the order price over the last 12 months preceding the harmful event.

8.4 Not eligible for reimbursement:

1. consequential damage, including business interruption loss, loss of production, loss of profit, loss of turnover, loss of income, missed savings and subsidies, tax disadvantages, costs incurred in vain, internal costs of the Client, reduced goodwill and reputation damage, fines, damage resulting from liability of the Client towards third parties, damage due to damage, destruction or loss of data or documents, transport costs, travel and accommodation costs, storage costs, costs for replacement equipment and personnel and costs related to recall actions;
2. damage to property in the care, custody or control of, but not owned by the insured, being damage caused during the performance of the work to products on which work is being carried out or to products located in the vicinity of the workplace;
3. damage to or caused by equipment made available to Kerklaan by or on behalf of the Client;
4. damage caused by the intent or wilful recklessness of auxiliary persons or non-management staff of Kerklaan;
5. damage to material supplied by or on behalf of the Client, including damage resulting from improper processing, assembly, mounting or installation.

The Client is expected to insure against these forms of damage if possible.

8.5 The caps mentioned in paragraphs 1, 2, 3 and 4 of this Article 8 of these Conditions will not apply if the damage was caused by the wilful recklessness or intent of Kerklaan or its management staff.

8.6 The Client will indemnify Kerklaan – as well as, by way of a third-party clause, their personnel and the auxiliary and other persons hired for the performance of the Agreement – against all third-party claims for damage arising from or relating to the performance of the Agreement, the Client’s use of the products delivered, work completed and/or services rendered. This indemnification will not apply if the Client proves that the damage was caused by intent or wilful recklessness by Kerklaan or its management staff.

8.7 Any claim of the Client for damage will lapse by the mere expiry of a 12-month period after the damage occurred, unless the Client has brought the claim before the competent court before the expiry of that period.

9. Force majeure

9.1 Force majeure means that Kerklaan is prevented by a circumstance beyond its actual control from performing the Agreement or doing so on time. In that case, Kerklaan cannot be held liable for any damage resulting for the Client. Except as provided below, the Client will not be entitled to terminate the Agreement in whole or in part in such a situation. If the force majeure situation is permanent or continues for more than six months, both Kerklaan and Client may terminate all or part of the Agreement with immediate effect. Termination by the Client in such a case will only be permitted for that part of the obligations not yet fulfilled by Kerklaan at that time.

9.2 Without prejudice to its other rights, if Kerklaan is prevented from performing the Agreement or doing so on time because of force majeure, it may suspend the performance of the Agreement or terminate it in whole or in part, at its discretion, without being liable for any damages or other compensation.

9.3 Force majeure at least includes war, including civil war, or the threat of it, terrorism, riots, outbreaks of infectious diseases and resulting government measures or advice, natural disasters, extreme weather conditions, import or trade restrictions, explosions, fire, water damage, sabotage, cybercrime, disruption of digital infrastructure, disruptions in energy supply, complete or partial loss, theft or loss of tools, materials or information, defects in machinery, road blocks, blockades of railways, waterways or airports, strikes or work stoppages, staff shortages, as well as the failure of third parties on whom Kerklaan depends to comply or to comply on time with obligations, such as suppliers, subcontractors, carriers or other involved parties.

10. Termination for cause

10.1 If the Client fails to meet any obligation to Kerklaan, fails to do so properly or on time, enters into a debt settlement with creditors, petitions for a moratorium on the payment of debts or enters into similar proceedings, is declared bankrupt, discontinues or transfers their business, dies or is placed under curatorship, or – if it is a legal entity – is dissolved or has assets attached under execution, the Client will be deemed to be in default by operation of law. In that case, Kerklaan may, without notice of default and without the intervention of the court, suspend performance of the Agreement or terminate the Agreement in whole or in part, at Kerklaan’s discretion. In that case, Kerklaan will not be liable for any compensation or warranty, without prejudice to its other rights.

10.2 If Kerklaan suspends performance of the Agreement and still performs it at a later date, the Client will be obliged to compensate Kerklaan for the damage suffered as a result.

10.3 If Kerklaan cancels the Agreement, the Client will be obliged to pay the full purchase or construction price, less the cost price of materials not used due to the non-performance or incomplete performance of the Agreement and unspent wages. This deduction will be determined based on a calculation by Kerklaan, which will be binding on the Client, subject to the Client providing proof to the contrary.

10.4 Any claim Kerklaan has or obtains against the Client will become immediately due and payable in full if the Client attributably fails to perform.

11. Termination

11.1 Kerklaan has the right to terminate all or part of the Agreement, without giving notice of default and without judicial intervention, by means of a written notice of termination or by termination for cause with immediate effect, if:

1. the Client fails to fulfil their payment or other obligations and, after being given a written demand to do so, does not fully remedy their failure(s) within seven days;
2. the Client is granted a moratorium on the payment of debts, provisional or otherwise;
3. bankruptcy is filed for with regard to the Client or if their business is liquidated or terminated, or if the Client is a natural person and applies for admission to the Debt Restructuring (Natural Persons) Act or a request to that effect has been filed, or
4. as a result of issue, transfer or other devolution of shares, or as a result of devolution of voting rights attaching to shares, the control of the activities of the business of the Client is acquired by one or more others within the meaning of the S.E.R. Resolution Concerning the Merger Code 2015 (irrespective of whether such rules are applicable to the relevant acquisition), or there is a change in the composition of the Client’s management board,

and without Kerklaan being liable to pay any compensation or damages and/or restitution on account of such termination.

11.2 If, at the time of termination of the Agreement as referred to in the previous paragraph of this Article 11 of these Conditions, the Client has already received performance under the Agreement, this performance and the related payment obligation will not be reversed. Amounts already invoiced by Kerklaan before the moment of termination, or work performed by Kerklaan but not yet invoiced before the moment of termination, will remain due in full and become immediately payable at the moment of termination.

11.3 The Client may not cancel or give notice of termination of the Agreement in whole or in part. Section 7:764(1) of the Dutch Civil Code is excluded.

11.4 Kerklaan may, entirely without obligation, agree to a request by the Client for early termination of the Agreement. If Kerklaan agrees, the Client will owe a fee of at least 20% of the agreed or budgeted price. Kerklaan reserves the right to require a higher fee, if warranted, and/or to impose additional conditions on its consent to termination.

12. Intellectual property rights

12.1 Kerklaan is deemed the creator, designer, deviser or inventor of all works, models, marks and inventions created under the Agreement. All intellectual property rights herein are held exclusively by Kerklaan. Kerklaan has the exclusive right to apply for and obtain patent, trademark or design registrations in that regard.

12.2 If the Client breaches an obligation in Article 12.1 of these Conditions, they will owe an immediately payable fine of €25,000.00 (twenty-five thousand euros) for each breach. This penalty is without prejudice to Kerklaan’s right to also claim compensation under the law.

12.3 Unless otherwise agreed in writing, all intellectual and industrial property rights arising during the performance of the Agreement with the Client vest in Kerklaan. After delivery, the Client only acquires a non-exclusive right of use in respect of the documents and models produced by Kerklaan under the Agreement, and exclusively for the Client’s normal business operations.

12.4 All information provided by or on behalf of Kerklaan to the Client, including offers, designs, images, drawings, models, technical descriptions, static calculations, construction drawings and know-how, regardless of its nature or form, is confidential. The Client may use this information only for the performance of the Agreement and must not disclose, reproduce or make it available to third parties for inspection without Kerklaan’s prior written consent. All intellectual and industrial property rights relating to this information vest in Kerklaan.

12.5 By issuing the order, the Client grants Kerklaan permission to receive and use the data resulting from the products and/or services provided, insofar as this data is relevant for the optimisation of the products and/or services provided by Kerklaan.

12.6 By placing the order, the Client also agrees that Kerklaan may enrich the generated data with other data, for the purpose of further improving its products and services.

12.7 The Client fully indemnifies Kerklaan against all third party claims relating to the use of information provided by or on behalf of the Client, including – but not limited to – advice, instructions, drawings, calculations, designs, materials, brands, samples and models. The Client must fully compensate all damage suffered by Kerklaan as a result, including the full costs of legal assistance and defence. The Client indemnifies Kerklaan completely and unconditionally against any claim by third parties due to the actual or alleged infringement of intellectual property rights arising from or relating to data, materials or instructions provided by the Client.

12.8 Kerklaan will not be liable for any damage suffered by the Client as a result of an infringement of third-party intellectual property rights arising from or related to information or materials provided by the Client.

13. Collection costs and costs of legal and other proceedings

13.1 All costs – both judicial and extrajudicial – that Kerklaan must incur to collect an amount owing by the Client will be payable in full by the Client.

13.2 Extrajudicial collection costs include costs of issuing demands, notices of default, file appraisals and other preparatory work. Such costs amount to 15% of the amount claimed by Kerklaan, subject to a minimum of €300.00 (three hundred euros). If the actual extrajudicial costs incurred are higher than the amount according to this calculation, the Client must reimburse the actual costs.

13.3 If Kerklaan is wholly or substantially successful in legal proceedings, all costs incurred in connection with such proceedings are payable by the Client.

14. Applicable law and disputes

14.1 If the Client is located within the European Union, any dispute arising from or related to an Agreement will be submitted to the court in The Hague with exclusive jurisdiction.

14.2 If Client is located outside the European Union, any dispute arising from or related to an Agreement will be settled by arbitration in accordance with the arbitration rules of the Netherlands Arbitration Institute. The place of arbitration is The Hague. The arbitral tribunal consists of one arbitrator. The language of arbitration is Dutch. The arbitrator will be appointed by the Netherlands Arbitration Institute. Notwithstanding the foregoing, Kerklaan will have sole jurisdiction to submit a dispute with a Client not domiciled in the European Union to the court in The Hague with exclusive jurisdiction.

14.3 All Agreements entered into with Kerklaan will, subject to these Conditions, be governed exclusively by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is excluded.

15. Final provision

15.1 If any provision of these Conditions is wholly or partially void or voided, the remaining provisions will remain in full force and effect. Kerklaan and the Client agree to replace the void or voidable provisions with a provision that they would have agreed on, had they known about the voidness or voidability.

Part B - Products and assembly kits

This Part B applies in addition to Part A to the supply of products and assembly kits (including greenhouse assembly kits) by Kerklaan to the Client. In case of any inconsistency, the provision of Part B prevails over the provision of Part A.

16. Payment terms of products

16.1 Unless agreed otherwise in writing, the full price for all Agreements (except those mentioned in Article 21 of these Conditions) will be invoiced on order confirmation by Kerklaan. Products will be delivered to the Client only when the full price has been paid to Kerklaan.

17. Delivery of products

17.1 Once a part of the Purchase Agreement order is ready, Kerklaan may, at its discretion, deliver this part separately or to wait to deliver until the entire order is ready. Unless it is expressly agreed that delivery will be made from its own stock, Kerklaan may deliver from the stock of third parties.

17.2 Kerklaan reserves the usual tolerances for dimensions, weights, quality and reliability of the materials delivered, in the sense that it cannot be held liable for limited deviations.

17.3 If an agreed product or material for the purpose of contracting work or delivery is not in stock, Kerklaan may, at its discretion, deliver a substitute product or material that is appropriate in nature and functionality for the intended use. Kerklaan is not obliged to prove that the replacement product or material is fully equivalent to the originally agreed product or material. Such a substitute delivery will constitute proper fulfilment of Kerklaan’s obligations under the Agreement. Kerklaan will not be liable for any damage suffered by the Client as a result of providing a replacement product or material.

17.4 Unless expressly agreed otherwise, delivery will take place ‘ex works’ or ‘ex warehouse’.

17.5 When products or materials delivered by or on behalf of Kerklaan arrive at the agreed destination, the Client must immediately satisfy themselves of their condition. If it appears that damage has been caused to the products and/or materials on delivery, the Client must take all necessary measures to obtain compensation from third parties, insofar as these third parties can be held liable by the Client.

17.6 If there is a trade-in and the Client keeps the item to be traded in pending delivery of the new item, the risk for the item to be traded in will remain entirely with the Client until the time it is actually transferred to Kerklaan. If the Client cannot deliver the item to be exchanged in the condition it was in at the time of concluding the Agreement, Kerklaan may terminate all or part of the Agreement, without being liable for any compensation.

18. Incomplete or incorrect delivery

18.1 All claims against Kerklaan for incomplete or incorrect delivery will lapse if the Client has not filed a written complaint within seven days of receipt of the products.

18.2 Without prejudice to the provisions of Article 18.1 of these Conditions, claims for externally visible defects will also lapse if the Client has not had the alleged defect noted on the waybill or receipt immediately on receipt of the products.

19. Risk

19.1 Under a Purchase Agreement, the risk of the products to be delivered by Kerklaan will pass to the Client from the moment the products are presented for transport ‘ex works’ or ‘ex warehouse’.

20. Warranty on products

20.1 Unless otherwise agreed in writing, new products delivered by Kerklaan will be subject to a warranty period of 12 months, calculated as from the delivery date.

20.2 When finished goods are sold – i.e. products purchased by Kerklaan and delivered without processing – they are sold in the condition they are in at the time of delivery. Kerklaan provides no warranty for this and accepts no liability, unless expressly agreed otherwise in writing.

20.3 The provisions of this Article 20 will apply by analogy to any claims by the Client, whether based on breach of contract, non-conformity or any other legal basis.

Part C - Contracting work

This Part C applies in addition to Part A to the performance of contracting work by Kerklaan for the Client. In case of any inconsistency, the provision of Part C prevails over the provision of Part A.

21. Instalment schedule

21.1 Unless otherwise agreed in writing, the contract price in a Building Contract relating to the construction of a greenhouse will be invoiced as follows:

• 20% when the order is placed;
• 10% at the start of foundation pouring;
• 20% on delivery of the steel structure;
• 10% halfway through the assembly of the steel structure, with Kerklaan reasonably determining when it is halfway;
• 20% on delivery of the glass;
• 15% halfway through the installation of the glass, with Kerklaan reasonably determining when it is halfway;
• 3% on completion;
• 2% on completion of the outstanding points.

For other types of Building Contracts, including but not limited to installations, the following invoicing will apply unless otherwise agreed in writing:

• 50% when the order is placed;
• 50% before delivery.

22. Contract extras

22.1 Contract extras will be calculated based on the prices in force at Kerklaan at the time. The Client must pay the price of the contract extras immediately at Kerklaan’s request.

22.2 All changes to the work – whether at the request of the Client, a consultancy firm or authorised representative hired by the Client, on the basis of government regulations, as a result of necessary adjustments to prevent unforeseen difficulties or to solve problems that have arisen (such as, for example, strengthening or reinforcing the foundation) – will, insofar as they result in higher costs, be regarded as contract extras.

23. Assembly

23.1 All installations and/or facilities that are necessary for the placement of the products to be assembled, and/or for the proper functioning and reliability of those products in their assembled state, are at the Client’s expense and risk. Kerklaan is not responsible for these installations and/or facilities, unless they are performed by or on behalf of Kerklaan, based on data and/or drawings provided or produced by Kerklaan or on its behalf.

23.2 Except for the aforementioned exception, the Client is fully responsible to Kerklaan for the proper and timely execution and soundness of the installations and/or facilities referred to above.

23.3 The Client warrants the soundness of the constructions and working methods prescribed by them, including the impact of soil conditions, as well as the accuracy of any instructions, tools and construction materials provided by or on behalf of the Client.

23.4 The Client undertakes to ensure that the work can be carried out at the agreed times.

23.5 The Client will ensure, at their own expense and risk, that Kerklaan can perform the work safely, undisturbed and uninterrupted, and that it can commence the work at the agreed time. This at least means:

1. Kerklaan staff can start work immediately on arrival at the site and will be given the opportunity to carry it out at all times;
2. access roads to the set-up location are suitable for transport;
3. the designated construction site is suitable for storage and assembly;
4. sufficient lockable storage areas are available for materials, tools and other supplies;
5. all required permits, exemptions and other decisions necessary for the performance of the work have been obtained in time. The Client must provide a copy of these documents immediately on Kerklaan’s request;
6. The Client must inform Kerklaan in due time and in writing of all safety and other regulations applicable at the site;
7. Kerklaan will have access to the necessary auxiliary persons, equipment and facilities, including gas, water, electricity, internet, suitable access roads for transport, lifting and hoisting equipment, sanitary facilities and a lockable dry storage area when carrying out the work;
8. all work necessary for the performance of the work, but not covered by the Agreement, has been carried out in due time.

23.6 If time is lost due to failure to comply with the obligations set out in this Article 23, the agreed delivery period will cease to apply and the provisions of Article 5.2 of these Conditions will apply.

23.7 Deviations are permitted in the performance of the Agreement, provided that Kerklaan considers them reasonably necessary, useful or desirable and insofar as they do not materially affect the functionality of the structure to be constructed.

23.8 All materials or any remnants left during construction will remain the property of Kerklaan and may be removed by it from the construction site, unless materials supplied by third parties have been used.

24. Workable days

24.1 Without prejudice to the provisions of Article 9 of these Conditions regarding force majeure, the delivery period for a Building Contract will be extended by the number of workable days on which, as a result of adverse weather conditions (such as rain, hail, whirlwinds, frost, snow, sleet, fog or storm) or unworkable ground conditions at the building site, Kerklaan’s installation or construction crews have not been able to carry out their work and the construction schedule has been disrupted as a result.

25. Risk

25.1 The Client is always fully liable for all damage to the materials supplied from the moment of supply at or near the work site, including damage, theft and misappropriation. The Client must take out proper and adequate insurance against these risks.

25.2 During the construction or assembly work, the full risk for the constructed or assembled structure will be borne by the Client. Unless agreed otherwise in writing, the Client must take out the customary insurance for the work concerned no later than at the start of the activities. Immediately on Kerklaan’s request, the Client must make the relevant policy conditions available for inspection.

25.3 Before commencement of the work, the Client must take out and maintain adequate Construction All Risk (CAR) insurance for the duration of the work. This insurance must provide cover for material damage to the work, damage to the property of the Client and third parties, as well as damage to auxiliary materials, tools and site huts.

25.4 The CAR Insurance must at least provide cover in accordance with common policy conditions in the industry, including cover during the construction period and the maintenance period. The minimum insured amount must be aligned with the total contract price of the work.

25.5 The Client and all parties involved in the work, including subcontractors, architects and suppliers, must be included in the policy as co-insured parties insofar as they are involved in the work.

25.6 If the Client fails to take out or maintain CAR Insurance, Kerklaan may take out the insurance itself at the Client’s expense.

25.7 The Client must ensure that the materials supplied by Kerklaan can be stored in such a manner and location that they cannot reasonably be damaged and stolen.

26. Handover

26.1 In the case of a Building Contract, the inspection – a survey of the work carried out – will take place within 14 days of completion of the work. The Client must cooperate in this inspection without delay.

26.2 Handover will be deemed to have taken place as soon as the installation or the work has been fully completed and delivered ready for operation, and it has been established during the inspection by means of a test that the installation or the work complies with the Agreement and has been approved by the Client.

26.3 At the Client’s request, a list of any defects may be drawn up during the inspection. Defects that do not prevent or do not significantly obstruct the normal operation of the delivered item do not constitute grounds for refusal of approval by the Client.

26.4 If the Client discovers defects during the inspection, they must have Kerklaan document this in the completion report during the handover. If the Client fails to do so, the installation or the work will be deemed approved.

26.5 In any case, the handover of the work will be deemed complete if one or more of the following situations occur:

1. the Client has approved the work;
2. the Client has put the work into use. If only part of the work

has been put into use, the handover of that part is considered complete;

1. Kerklaan has notified the Client that the work has been completed, and the Client has not, within fourteen days of such notice, given written notice that the work has not been approved;
2. The Client refuses approval only on account of minor defects or missing parts that can be repaired or subsequently delivered within 30 days and which do not prevent the work from being put into use.

26.6 Kerklaan is not obliged to provide the Client with a transfer or handover file as referred to in Section 7:757a of the Dutch Civil Code with regard to the completed building work.

27. Warranty on work

27.1 Kerklaan does not give any broader warranty on new materials and/or products that it procures from third parties than is given to it by the relevant supplier or manufacturer.

27.2 Materials that were not new on delivery are sold in their condition at the time of delivery. Kerklaan provides no warranty for this and accepts no liability, unless expressly agreed otherwise in writing.

27.3 Kerklaan only warrants and accepts liability for its own manufactured designs. It is therefore not liable for defects in greenhouses built on the basis of designs by the Client or third parties, or for defects arising from incorrect or incomplete data provided by the Client.

27.4 The provisions of this Article 27 will apply by analogy to any claims by the Client, whether based on breach of contract, non-conformity or any other legal basis.