General Terms and Conditions
With every use of kobelcofanshop.com (hereinafter: the Shop), these General Terms and Conditions from Kobelco Construction Machinery Europe B.V. (hereinafter Kobelco) applies. By placing an order at the Shop, you agree with these General Terms and Conditions. These Terms and Conditions shall be sent to the Customer at no charge upon first request.
1.1. In these general Terms and Conditions of sale and delivery the following terms are defined as:
a. Customer : the natural person who acts as buyer of goods or services, but is not acting in the course of a profession or a business;
b. Defect(s): every deviation of a Product from the Specification and each incorrect functioning of a Product;
c . Delivery time: the time frame determined in the Agreement within which the Product must be delivered or the Service must be executed;
d. Order: each order of Products by a Customer, via any form of communication, is considered to be an Order subject to the applicability of the Terms and Conditions;
e. Agreement: each agreement that is reached between KOBELCO and Customer, each amendment or attachment to the agreement, and all (legal) actions required for the preparation and/or execution of the agreement;
f. Product(s): item(s) which the Customer undertakes to purchase from KOBELCO;
g. Specification: the description(s) drawn up and/or expressly approved by KOBELCO of the Products supplied by KOBELCO and listed in the Order or Agreement. In default of such a Specification, the description of what has been expressly agreed upon by the parties or the situation that is most common in the industry as a whole;
h. Distant Sale : a system organised by KOBELCO for sales at a distance, including telephone and Internet, in which up to and including the conclusion of an Agreement one or more technique for distant communication has been utilised;
i. KOBELCO: the private limited liability company Kobelco Construction Machinery Europe B.V. located at 1327 AE (Veluwezoom 15) in Almere, registered in the Chamber of Commerce under number 58071792, phone 0031 (0)36 2020 300, VAT NL852860869B01, as well as all legal successors under general or special title;
j. Terms and Conditions: the latest version of these general Terms and Conditions of sale and delivery for Customers. These Terms and Conditions shall be sent to the Customer at no charge upon first request;
k. Reconsideration period : The legal term within which the Customer may exercise his/her right of withdrawal.
2. Applicability and void ability
2.1. These Terms and Conditions are applicable on each estimate, offer, Agreement and/or sale of Products with Customers only.
2.2. The “KOBELCO General Terms and Conditions of Sale and Delivery for Businesses” are applicable to all agreements between KOBELCO and parties acting in the course of a profession or a business.
2.3. If any term of these Terms and Conditions at any time becomes void or cancelled, in full or in part, then the remaining terms of these Terms and Conditions remain wholly applicable. KOBELCO and the Customer will then discuss new terms to replace those voided or cancelled, taking into consideration the purpose and intent of the void and/or cancelled terms.
2.4. If these Terms and Conditions are at any time translated into another language, the English-language text will be considered leading in the event of a discrepancy.
3.1. An Agreement can be made via Distant Sale.
3.2. Each estimate and offer is without obligation and should be considered as a whole, unless expressly stated to the contrary by KOBELCO. An estimate or offer expires if the Product for which the estimate or offer was intended is no longer available.
3.3. KOBELCO accepts an Order at the moment that it has been confirmed in writing by KOBELCO.
3.4. If the Customer’s Order deviates from the offer made in the estimate, then KOBELCO is not responsible for the Agreement unless KOBELCO indicates to the contrary.
3.5. KOBELCO reserves the right to refuse orders without further notification. In the event of such a refusal, KOBELCO will inform the customer within fourteen (14) days after the placement of the order.
3.6. If for any circumstance, including the nature, size or need for haste to fill the order, no order confirmation has been sent, the KOBELCO invoice should be considered confirmation of the order.
3.7. Each Agreement can be cancelled by KOBELCO on the condition that the Customer, in the exclusive opinion of KOBELCO, has insufficient credit to meet the terms of the Agreement.
4.1. In the event of a Distant Sale, the offer is subject to a Reconsideration Period of fourteen (14) days, starting on the day after receipt of the Product(s) by the Customer.
4.2. During the Reconsideration Period, the Customer has the right of withdrawal, in which he has the opportunity to return the Product(s), without any obligation on his part other than the payment of the direct shipping costs to return the Product. The Product must be returned in the original packaging (including accessories and documentation), in new condition and within the Reconsideration Period.
4.3. If the Products have been used, encumbered or in any way damaged, the right of termination in the meaning of this article is annulled. With consideration for the terms of the previous sentence, KOBELCO will confirm the termination of the purchase after receipt and inspection of the returned Product(s) by return post and will ensure that the complete purchase amount will be returned to the Customer within 14 days after receipt of the complete return shipment. The Customer is obliged to follow up all reasonable instructions provided by KOBELCO. The risk and the burden of proof for exercising the right of withdrawal correctly and in time rest upon the Customer. The Customer bears the direct costs of returning the Product.
4.4. The Customer may only invoke the Reconsideration Period in the manner indicated by KOBELCO during the purchase and/or delivery of the Product.
5.1. Unless otherwise specified, all prices are expressed in Euros including VAT and other government-required taxes, as well as any travel, shipping and administrative costs indicated in the Agreement, unless otherwise specified.
5.2. If the Customer and KOBELCO agree to a price, KOBELCO retains the right to raise the price. If this price increase occurs within three (3) months following the date of Agreement, the Customer may terminate the Agreement, except when they are the result of statutory regulations or stipulations. If this price increase occurs more than three months after the date of the Agreement, then the Customer may terminate the agreement if the price increase is greater than 5%.
5.3. KOBELCO is not liable for wrong price listings or other factual errors in the offer and/or the estimate, on the KOBELCO Webshop, in advertisements, in publications, in order confirmation, in invoices or in other documents if the Customer may reasonably understand or could have understood that the error was the result of a mistake or clerical error.
5.4. In the event of a Distant Sale, all payments must be made with credit card or, PayPal®. It is up to KOBELCO to decide to deliver on account without given any reason to Customer to refuse to deliver on account. If a Customer is approved for buying on account all invoices should be paid within fourteen (14) days after the invoice date, without any right of discount, deduction or deferment, in the manner indicated by KOBELCO and in the currency on the invoice, unless otherwise stated in the Agreement.
5.5. If the Customer has not paid the invoice within fourteen (14) days after due date, the Customer will be considered legally in default and from that moment the Customer will be charged interest in accordance with the legal interest rate as indicated in Dutch Civil Code. The interest over the amount due will be calculated from the moment that the Customer is in default until the moment of the payment of the full amount due.
5.6. If, after the end of the term listed in Article 5 paragraph 5, KOBELCO is required to take collection measures, then the Customer is responsible for all costs. However, if KOBELCO assumes collection costs that are higher than reasonably necessary, then the Customer is only responsible for the actual collection costs. Any legal or executive costs will also be charged to the Customer. Legal costs include attorney at law and local counsel fees. The Customer is also responsible for interest over the collection costs due.
5.7. In the event of bankruptcy or suspension of payments by the Customer, or an application thereto, the amounts due to KOBELCO and the obligations of the Customer towards KOBELCO are immediately due and payable.
6.1. In the event of a Distant Sale, the Products available in stock will be shipped within two (2) working days after the receipt of the order, this excludes the period of a week before any national holidays in the Netherlands where orders could take longer. KOBELCO may charge shipping charges for shipping the Products ordered. The Products will be delivered to the permanent shipping address made known to KOBELCO, and will be released to the natural person present at that address. When Products cannot be delivered from stock, KOBELCO will inform the Customer in the written confirmation of his or her order and provide an indication of the expected delivery term.
6.2. KOBELCO’s delivery requirement is considered to be fulfilled as soon as the Products provided by KOBELCO have been offered to the Customer one time, subject to proof of the contrary. In the event of home delivery, the report of the transporter regarding the refusal to accept or the absence of the Customer serves as full proof of an offer to deliver, subject to proof of the contrary.
6.3. Products which have not been collected by the Customer remain available to the Customer and will be stored by KOBELCO at the cost and risk of the Customer.
7.1. The delivery period will be given as an estimate and should never be considered as a strict deadline.
7.2. The delivery period commences after acceptance of the Order by KOBELCO, after which KOBELCO will aim to deliver the Order within ten (10) working days.
7.3. If KOBELCO is not able to comply with this delivery period due to circumstances beyond its control, KOBELCO will not be considered in default and is not liable for any damages to the Customer.
8.1. KOBELCO guarantees that the Products delivered or to be delivered satisfy all customary requirements and norms that can be reasonably expected at the moment of delivery, and for which they are customarily used in the Netherlands. The guarantee mentioned in this Article is applicable to Products destined for use within the Netherlands. For use outside of the Netherlands, the Customer must verify whether the article is suitable for use in that location, and whether it meets the conditions set for use in that location. Use outside of the Netherlands does not fall under the terms of the guarantee mentioned in this Article.
8.2. The guarantee mentioned in paragraph 1 is valid for a period of six (6) months after delivery, unless the nature of the Product delivered determines otherwise or unless the parties have agreed to other terms. If the guarantee issued by KOBELCO applies to a Product or Products produced by a third party, then the guarantee is limited to the terms set by the producer of the Product or Products. Upon the expiration of the guarantee period, all costs for repair or replacement, including administration, delivery and call-out fees will be charged to the Customer.
8.3. KOBELCO will provide the Customer with a written proof of guarantee. In the absence of this proof, the invoice for a Distant Sale will function as proof of guarantee.
8.4. If the Products delivered/to be delivered do not meet the terms as intended in paragraph 1, KOBELCO will replace or repair the Product within a reasonable time frame after receipt of the item, or if return of the item is not reasonably practicable, after written notification of the Defect by the Customer. In the event of replacement, the Customer commits to return the Product to be replaced to KOBELCO and to transfer ownership of that Product to KOBELCO.
8.5. Each form of guarantee becomes null and void if the Defect is the result of improper or injudicious use of the Product or, if applicable and without the written permission of KOBELCO, use after the use-by date, incorrect maintenance by the Customer or when the Customer or third parties (attempt to) make changes to the Product or attach other items that should not be attached, or if the Products have been processed or manipulated in a manner other than specified. The Customer may not make a claim to the guarantee if the Defect is the result of conditions on which KOBELCO cannot exercise influence, including weather circumstances (including but not limited to extreme rainfall or temperatures) etc.
8.6. If the Products delivered by KOBELCO are defective, the liability of KOBELCO towards the Customer is limited to the terms of this Article.
8.7. Without prejudice to the aforementioned, KOBELCO is not liable for damages resulting from intention and/or negligence and/or imputable acts or omissions or improper use by the Customer.
8.8. These guarantee conditions do not affect the legal rights of the Customer.
9.1. The Customer must inspect the Products delivered for any potential Defects immediately after receipt, and if any are found, to report these to KOBELCO in writing as quickly as possible, not later than 24 hours after the delivery of the Products, upon forfeiture of rights.
9.2. Not-visible Defects must be reported in writing to KOBELCO by the Customer within a reasonable time frame, not more than two (2) months after the discovery of the Defect, upon forfeiture of rights.
9.3. Claims regarding the invoice amount should be made known to KOBELCO in writing within fourteen (14) days of the date of the invoice concerned.
9.4. The burden of proof of a timely submission as well as the accuracy of the claim is the responsibility of the Customer. The Customer is required to provide all assistance to KOBELCO in determining the nature of the Defect(s).
9.5. Insignificant and/or industry-customary deviations in quality, colour, size, etc. may not serve as grounds for a claim.
9.6. If a complaint regarding the abovementioned terms is found to be justified, then KOBELCO must replace the Products without extra costs. The Customer is not entitled to any compensation.
9.7. If the Customer has not submitted a claim within the time frame mentioned in the paragraphs above, or if the Customer remains in possession of the Product delivered, he is considered to have accepted the delivery.
9.8. In case of any complaint the Customer must contact the KOBELCO customer service department at telephone number +31 0411657182 on working days between 08:30 and 17:00 hours.
10.1. The risk of loss, damage or depreciation is transferred to the Customer at the moment of delivery, as should occur on grounds of these Terms and Conditions.
11.1. KOBELCO is authorised to terminate or suspend the fulfilment of the Agreement if:
a. the Customer does not or does not fully or timely comply with the obligations listed in the Agreement;
b. after making the Agreement, KOBELCO learns of circumstances which provide grounds to suspect that the Customer will not comply with the obligations. In the event that good grounds exist to suspect that the Customer will not or will not fully comply with the Agreement, termination is only permissible insofar as it is justified by the shortcoming;
c. the Customer has been judged legally incompetent by a court or has been deprived of his freedom;
d. the data provided to KOBELCO by the Customer do not correspond to the actual situation.
11.2. If the Agreement is terminated, then the amounts owed to KOBELCO by the Customer are immediately due and payable. If KOBELCO suspends fulfilment of the Agreement, it retains all rights permitted by law and the Agreement. 11.3. KOBELCO retains the right to claim compensation.
12.1. The parties are not obliged to comply with any obligation if they are hindered by circumstances that do not result from fault, or by law, legal action, or generally accepted practice. If a shortcoming in compliance with the contractual obligation is the result of force majeure on the side of one of the parties, the other party is allowed to terminate the Agreement. KOBELCO excludes any liability for any damages in case of force majeure on the grounds of Article 6:78 Dutch Civil Code.
12.2. Force majeure is considered to be, in addition to that which in law and jurisprudence is considered to be, all external causes, foreseen or unforeseen, on which KOBELCO cannot exercise influence, but through which KOBELCO is not able to fulfil its obligations. This includes, but is not limited to, strikes in the KOBELCO company, as well as suppliers who do not comply with their obligations to KOBELCO.
12.3. KOBELCO retains the right to claim force majeure, if the circumstances that hinder further compliance initiate after KOBELCO should have complied with its obligations.
12.4. The parties may suspend the Agreement for as long as the force majeure continues. If this period lasts longer than two (2) months, each of the parties may terminate the Agreement, without being liable to compensation to the other party.
12.5. If KOBELCO has partially complied with or can still comply with its obligations as per the Agreement at the time of the force majeure, and if an independent value can be attributed to the part provided or to be provided, KOBELCO is entitled to invoice the part provided or to be provided separately. The Customer is required to pay this invoice as if it were a separate agreement.
13.1. Unless otherwise specified in writing, the entire copyrights and all other rights of intellectual and industrial property relating to Products provided by KOBELCO, including brand rights, model rights, patent rights, sui generis, database rights, etc. are exclusive (legally, intellectually and industrially) property of KOBELCO and/or its suppliers.
13.2. The parties are required to take sufficient measures to guarantee confidentiality with regard to each other’s confidential data with which they become acquainted in the course of executing the Agreement.
14.1. KOBELCO collects, uses and transports personal data related to the Customer in compliance with applicable national and European legislation and regulations.
14.2. KOBELCO respects the privacy of the Customer. Information provided by the Customer will not be sold, shared or rented to third parties in any other manner than that stated in the website’s privacy declaration.
15.1. Dutch law is applicable to all Agreements between KOBELCO and the Customer, even if the Customer resides abroad. The applicability of the Vienna Convention is expressly excluded. In case the Customer does not reside in the Netherlands the choice of law shall not affect any further protection that such Customer has based on mandatory provisions of the law that would apply without this provision.
15.2. In the event of a dispute between the parties, the exclusive authorised court to hear the dispute is the district court of Amsterdam. As an alternative the Customer is allowed to refer to the Dispute Commission via the European ODR Platform: http://ec.europa.eu/consumers/odr/, however only after submitting his complaint in writing to KOBELCO. Nonetheless, KOBELCO remains authorised to serve a summons to appear before the judge authorised by treaty or by law.