Kraker Trailers General Terms and Conditions of Delivery, Payment, Guarantee and Sales
General Terms and Conditions of:
- Kraker Trailers Axel B.V., based in Axel, the Netherlands, registered in the Trade Register of the Dutch Chamber of Commerce under number 22055289;
- Smart Trailer Solutions B.V., based in Axel, the Netherlands, registered in the Trade Register of the Dutch Chamber of Commerce under number 83946586,
Hereinafter in this document both individually and jointly referred to as: "Kraker Trailers".
Version 11 March 2022, filed at the Registry of the District Court of Middelburg, the Netherlands, under number 9/2022
Clause 1 Definitions
In these General Terms and Conditions, the following definitions apply:
1. Distributor: distributor, including dealers and Service Partners, of Kraker Trailers Products in a certain specified area or country.
2. Service Partner: company with which Kraker Trailers has entered into a Service Level Agreement.
3. Service Level Agreement: agreement between Kraker Trailers and selected Service Partners who are authorised to perform maintenance and repairs on Kraker trailers.
4. Written/in writing: correspondence by letter, e-mail or fax.
5. Customer: the ultimate buyer of the Products.
6. User of these General Terms and Conditions: those on behalf of whom these General Terms and Conditions have been drawn up: Kraker Trailers Axel B.V. and Smart Trailer Solutions B.V.
7. Products: moving floor and other trailers, stationary installations, constructions and components produced and/or supplied by Kraker Trailers.
8. Guarantee: the assurance provided by Kraker Trailers that Products will be repaired or replaced free of charge within the guarantee period.
9. Kraker Trailers Guarantee Procedure: the procedure to be followed for the guarantee issued by Kraker Trailers as described in Clause 10 of these General Terms and Conditions.
10. Guarantee Claim Form: standard form for dealers and Service Partners, to be used for guarantee claims.
11. Parts Return Form: standard form that must be sent along with defective parts that are returned to Kraker Trailers.
12. Structural Defects: defects, permanent deformations or damage to the chassis or the body which are not caused by improper use, overloading or negligence on the part of the user.
13. Normal Maintenance: maintenance that has been carried out in accordance with the instructions of Kraker Trailers or of the supplier of the part in question.
14. Normal Use: loading and/or unloading of evenly loaded non-corrosive materials and/or goods, which load must be properly secured, and transported on well-maintained roads. The total weight of the load and the driving speed may not exceed the prescribed values. With regard to stationary installations, Normal Use means moving evenly loaded non-corrosive materials, with a total weight that does not exceed the capacity indicated by Kraker Trailers.
Clause 2 Applicability
1. These General Terms and Conditions apply to all offers, agreements, (legal) acts and relations between Kraker Trailers on the one hand and distributors and Customers and users of Kraker Trailers Products on the other, irrespective of the parties' place of residence or domicile and irrespective of the place where the agreement is concluded or carried out.
2. These General Terms and Conditions shall at all times prevail over any other general terms and conditions that may be applied by the other party or by any other third party. Insofar as necessary, Kraker Trailers hereby expressly rejects the applicability of those other general terms and conditions of the other party or any other third party, unless they have been explicitly accepted in advance by Kraker Trailers in writing.
3. If for whatever reason any provisions of these General Terms and Conditions are null and void, are annulled or are not valid, the other provisions shall remain in full force and effect.
Clause 3 Offers
1. Offers made by Kraker Trailers are always without any obligation.
2. Orders placed by telephone, in writing or through the agency of representatives of Kraker Trailers, Service Partners or distributors will only be binding on Kraker Trailers after Kraker Trailers has confirmed the relevant order in writing.
Clause 4 Delivery time and orders
1. The sale of Products to the Customer will be carried out in accordance with the order placed and subject to the final acceptance thereof by Kraker Trailers.
2. Kraker Trailers reserves the right to refuse an order due to stock or technical reasons.
3. A delivery date mentioned in an offer and/or order confirmation is always without any obligation and in no case a deadline within the meaning of Article 6:83 sub a of the Dutch Civil Code, unless expressly agreed otherwise in writing.
4. The Customer has no right of dissolution, no right to compensation, and no right to suspend payment obligations if Kraker Trailers exceeds the agreed delivery date.
5. After the agreement between the parties has been concluded, the Customer is no longer entitled to cancel his order. If, for whatever reason, the Customer does not allow Kraker Trailers to deliver the trailer ordered, the Customer will owe an amount equal to 15% of the agreed price for types K-Force, K-Force with welded chassis (HD), SD, Waste and Agri. For special types, the Customer will as the occasion arises have to pay 30% of the agreed price.
Clause 5 Product specifications
1. Kraker Trailers is entitled to make changes to the product specifications in accordance with technical developments of the Product.
2. The Customer is not entitled to dissolution, compensation or suspension of its payment obligations in the event that Kraker Trailers changes product specifications.
Clause 6 Price and payments
1. Payment for the purchased Products is made on the basis of the invoice drawn up by Kraker Trailers in accordance with the prices as stated in Kraker Trailers' price lists.
2. Kraker Trailers is entitled to demand security from the Customer in view of deliveries to be made, and is entitled to charge the Customer an advance.
3. The prices stated by Kraker Trailers in offers and order confirmations are ex works and exclusive of VAT and all other applicable taxes. The Customer will guarantee payment of all applicable taxes on the Products supplied by Kraker Trailers, unless the Customer demonstrates in writing that it is exempt from such taxes.
4. All additional bank charges resulting from payments to be made by the Customer or connected with the opening and confirmation of letters of credit shall be borne by the Customer.
5. The Customer is obliged to pay the price stated on the invoice no later than on the delivery date.
6. If an order is delivered in parts, Kraker Trailers is entitled to demand separate payment for each partial delivery. In that case, an invoice will be sent for each partial delivery.
7. If the Customer does not pay an amount due on time, it will be in default immediately from the moment that the term for payment determined in accordance with this Clause has expired, without any notice of default being required for that.
8. If payment is not received by Kraker Trailers within 30 days after the date stated on the invoice, the Customer will owe interest of 1% per month, or the higher commercial interest rate, if any, pursuant to Article 6:119A of the Dutch Civil Code, until payment has been made in full, this at the discretion of Kraker Trailers.
9. In case of default of payment, the Customer shall be liable for all (extra-)judicial costs, including costs of legal assistance incurred to collect the payment, with a minimum of 10% of the agreed price.
10. If, after an agreement has been concluded and before the agreed delivery time, the prices of auxiliary materials, raw materials and/or parts, wages or any other price-determining factors change, Kraker Trailers may adjust the price accordingly. In that case, the Customer does not have the right to dissolve the agreement, nor can it claim damages, suspension or interruption.
Clause 7 Retention of title
1. All Products delivered by Kraker Trailers, including spare parts, remain the property of Kraker Trailers until full payment for them has been received by Kraker Trailers.
2. The Customer of goods subject to retention of title by Kraker Trailers is obliged to store these goods separately, to distinguish and mark them as the property of Kraker Trailers and to insure the goods against fire damage, water damage, explosion and theft.
3. In the event that Kraker Trailers wishes to exercise its retention of title, all transport costs and all other costs related to exercising the retention of title shall be borne by the Customer.
4. In the event that Kraker Trailers wishes to exercise its retention of title, the Customer shall owe a payment of 15% of the agreed price for the K-Force type, and of 30% of the agreed price for all other types.
Clause 8 Risk, transport, conditions and insurance
1. The entire transport takes place subject to the condition Incoterm "Ex Works Axel - Kraker Trailers" (ICC Incoterms 2020 ®). This means that the Customer bears all costs and risks after the Products have left the factory of Kraker Trailers in Axel. The Customer must comply with all legal and financial formalities and conditions connected with the transport, including the import conditions of the trailer, as they apply for the Customer's country of residence.
Clause 9 Use of the trademark
1. The user or owner of Kraker Trailers is not authorised to remove, alter or in any way screen off or render illegible the trademark of Kraker Trailers as applied to the Products. This also applies to the trademark of Kraker Trailers on packaging and promotional materials.
2. In the event of a breach of Clause 9.1, the user or owner of the trailer will owe a penalty of €100 for each breach and for each day that the breach continues. This does not prejudice Kraker Trailers' right to claim full compensation.
Clause 10 Guarantee
1. Manufacturer's guarantee and extended guarantee
a. Unless other guarantee conditions have been agreed in writing in advance, Kraker Trailers provides a standard one-year manufacturer’s guarantee on new trailers against defects in materials and workmanship.
b. For the K-Force a guarantee period of 5 years applies. All other types, including the K-Force with welded chassis (HD), have a guarantee period of 2 years. All types have to be registered online within 1 month after delivery to be eligible for this extended guarantee.
c. The guarantee period starts from the moment that the trailer is first registered, or a maximum of 6 months after reporting it ready for use in the factory, regardless of the date of commissioning.
2. Guarantee on body paintwork
a. Kraker Trailers provides a 2-year guarantee on the paintwork of the body.
b. Corrosion in the welding seam and directly above the welding seam of the lower side wall profile and the side wall planks cannot always be prevented. These minor paint defects caused by a minimal form of corrosion do not impair the safety and functioning of the trailer and are therefore excluded from guarantee.
c. In case of visible damage to the paintwork caused by damage, no paintwork guarantee is applicable.
d. In order to qualify for a 2-year guarantee on the paintwork of the body, the special washing and cleaning instructions as stated in the operator's manual on paintwork of the body must be followed.
3. Guarantee on other paintwork
There is a 1-year guarantee on the paintwork on the undercarriage (axles, chassis, toolboxes, shield, bumper, etc.). Wheel hubs are excluded from the guarantee.
4. Guarantee on zinc-coated / spray-galvanised chassis
Kraker Trailers grants a 10-year guarantee against corrosion on zinc-coated and spray-galvanised parts of the chassis.
5. Guarantee on moving floors and hydraulic components
There is a one-year guarantee on moving floors and hydraulic components, in accordance with the manufacturer's guarantee scheme. Wear and tear will always be deducted from the lifespan of any parts to be replaced.
6. Guarantee on other components; axles, wheels, tyres, brakes, support legs, ABS/EBS, lighting
Guarantee on other components, such as axles, wheels, tyres, brakes, support legs, ABS/EBS, lighting, is in accordance with the manufacturer's guarantee regulations and conditions. In the case of wear parts, the guarantee always takes into account the lifespan of the part to be replaced. The Customer is allowed to contact the manufacturer or importer of the part/component concerned directly regarding guarantee claims.
7. General guarantee conditions:
Guarantee is only given under the following, cumulative, conditions:
a. The guarantee period starts from the moment that the trailer is first registered, or a maximum of 6 months after being reported ready for use in the factory, regardless of the date of commissioning. The date on the Factory Delivery Document (FDD) is decisive.
b. The guarantee only covers Normal Use for the purpose for which the trailer is equipped, in accordance with the instructions in the user manual and applicable regulations.
c. The trailer has been presented to a Kraker Trailers authorised Service Partner or dealer for the First Inspection in accordance with the applicable regulations (two weeks after commissioning and/or 5,000 km).
d. Normal and periodic maintenance of the trailer by a Kraker Trailers authorised Service Partner or dealer must be carried out regularly, at least in accordance with the maintenance instructions in the user manual, and maintenance must be carried out using original parts and prescribed maintenance materials.
e. Kraker Trailers reserves the right to refuse a guarantee claim if the guarantee conditions or other general conditions have not been met.
8. Guarantee procedure and repairs:
a. Repairs under guarantee must always be approved in advance by Kraker Trailers. Acceptance or rejection of the repair costs will be decided within two working days after Kraker Trailers has received a request to that effect and has sent the same to the Service Partner or dealer.
b. Guarantee claims will only be processed if the Guarantee Claim Form on the "Kraker Online Service Center" has been filled out completely and correctly.
c. After Kraker Trailers has received a guarantee claim, a guarantee number will be generated automatically. The provision of a guarantee number does not mean that Kraker Trailers has accepted the guarantee claim.
d. The progress of a guarantee claim can be followed on "My Trailer", which can be found at "Online Service Center".
e. Repairs covered by the guarantee must be carried out by selected Kraker Trailers Service Partners or dealers. If, for whatever reason, repairs are carried out elsewhere, Kraker Trailers will only reimburse the costs which Kraker Trailers applies for a specific component or repair.
f. Kraker Trailers reserves the right to carry out guarantee repairs to a trailer at its factory in Axel, if deemed necessary. The associated transport costs are at the expense of the Customer.
g. The costs of repairs recognised by Kraker Trailers as being under guarantee will be paid directly by Kraker Trailers to the Service Partner or dealer.
h. Parts replaced under guarantee must remain available for inspection by Kraker Trailers. They must be returned to Kraker Trailers, bearing the Kraker guarantee number, if Kraker Trailers so requests. Returned parts will only be taken into consideration if they have been provided with a guarantee number.
i. If the parties dispute the applicability of the guarantee, an independent expert may be called in. After acceptance by both parties, a TUV expert will be appointed to determine whether the repair is to be regarded as a guarantee repair.
j. The costs of the TUV inspection will be at the Customer's expense if the TUV expert determines that the repair cannot be considered a guarantee repair. If the TUV expert determines that a repair does constitute a guarantee repair, the costs of the TUV inspection will be borne by Kraker Trailers.
k. If, in anticipation of a decision on guarantee by a supplier, replacement parts are ordered from Kraker Trailers, the costs involved will be charged and must be paid in anticipation of the possible guarantee. If it subsequently turns out that these costs are covered by the guarantee, Kraker Trailers will credit the costs charged.
9. Exclusions and time limits
a. The guarantee will lapse if the technical condition of the trailer has been changed after delivery, unless the change has been made in consultation with Kraker Trailers and Kraker Trailers has given its prior written consent to the change in question and has confirmed that the guarantee will remain in force for the trailer in question.
b. Normal wear and tear is not covered by the guarantee.
c. Damage caused by mistakes in use or operation, not following the user manual or overloading are not covered by the guarantee.
d. If the vehicle is sold on, the new owner can register to transfer the guarantee. Failure to do so will invalidate the guarantee.
e. Guarantee repairs do not extend the guarantee period.
f. Minor problems that do not endanger the safety and functioning of the trailer are not covered by the guarantee if the costs involved are disproportionate to the problem.
10. The following costs are in no case covered by the guarantee
a. Transport costs of the trailer.
b. Travel costs.
c. Loss of income (actual and estimated).
d. Rental fees.
e. Damage to the cargo.
f. Consequential damage, both direct and indirect.
Clause 11 Transfer of rights and obligations
1. All rights and obligations arising from these General Terms and Conditions may only be transferred to third parties with the prior written consent of the other party.
2. Rights and obligations arising from these General Terms and Conditions shall pass to the legal successors under universal title of the parties by operation of law.
Clause 12 Liability of the parties
1. In the event of a defect in a delivered product, the Customer is obliged to report this to Kraker Trailers within five working days.
2. In no event shall Kraker Trailers be liable for any indirect or consequential damage arising from or in connection with the sale or use of its Products by the Customer.
3. Insofar as Kraker Trailers is liable for any damage, its liability shall always be limited to compensation for direct damage up to the amount paid out under its liability insurance. In the event that Kraker Trailers' liability insurance does not pay out any compensation, Kraker Trailers' liability will be limited to the amount of the price stipulated for the agreement in question, with a maximum of €25,000.
Clause 13 Force majeure
1. Kraker Trailers will not be held responsible or liable for a shortcoming if it is in a state of force majeure.
2. Force majeure shall be understood to mean a shortcoming that cannot be attributed to Kraker Trailers because it is not due to any fault on its part, nor for its account in accordance with the law, legal acts or generally accepted practice, including the case in which Kraker Trailers is unable to render its services due to any (attributable) shortcoming or carelessness on the part of third parties. Force majeure also includes:
a. Business disruptions or interruption of business operations of any kind and in whatever way caused.
b. Technical problems of any kind and regardless of how they arise, which hamper production.
c. Delayed or late delivery by one or more of Kraker Trailers' suppliers.
d. Transport difficulties or impediments of any kind, which hinder or impede transport to Kraker Trailers or from Kraker Trailers to the other party.
e. War, dangers of war, riots, sabotage, flooding, fire, lockouts, workers’ strikes and changes in government measures.
3. In the event of force majeure, Kraker Trailers is entitled to dissolve the agreement.
Clause 14 Applicable law and choice of forum
1. In the event of a dispute arising from or in connection with these General Terms and Conditions, the parties shall first attempt to reach an amicable solution.
2. If the parties do not reach an amicable solution, the District Court of Zeeland-West Brabant, location Middelburg, the Netherlands, shall have exclusive jurisdiction.
3. In the event that the parties have a difference of opinion regarding the meaning or interpretation of any of the provisions of these General Terms and Conditions in a language other than Dutch, the Dutch language version shall be decisive.
4. These General Terms and Conditions and all offers, quotations and agreements to which these General Terms and Conditions apply in full or in part, as well as any disputes arising from or related to these General Terms and Conditions, are governed exclusively by Dutch law. The applicability of the Vienna Sales Convention (CISG) is excluded.