KMS Inspections

General Conditions K.M.S Inspections.

R.F.G Kruis acting under the name of K.M.S Inspections (in the following: K.M.S Inspections) is registered with the Chamber of Commerce under number 86226525 and is established on Wals 2 2152TL Nieuw Vennep.

Article 1 - Definitions

In these general conditions, the following terms are used in the meaning described below, unless it is expressly indicated otherwise.
Offer: Any proposal or quotation to Client for the carrying out of Services by K.M.S Inspections.
Services: The Services offered by K.M.S Inspections are the carrying out of inspections, the taking of samples and the conducting of measurements of various liquid freights on ships and all other possible units, the preparation of advisory reports, the conducting of supervision over loading and discharge operations, as well as specifically discussed specialist services other than those named. K.M.S also provides Client timely and regularly with updates regarding the activities and all associated information, if so established.
Service provider: R.F.G Kruis acting under the name of K.M.S Inspections, incorporated under Netherlands legislation, established in the Netherlands, that offers Services to Client, in the following: K.M.S Inspections.
Client: the natural or legal person acting from the exercise of a profession or business that has appointed K.M.S Inspections, has granted projects to K.M.S Inspections for Services that are carried out by K.M.S Inspections, or to which K.M.S Inspections has made a proposal on grounds of an Agreement.
Agreement: Every Agreement and other obligations between Client and K.M.S Inspections, as well as proposals of K.M.S Inspections for Services that are provided by K.M.S Inspections to Client and that are accepted by Client and are accepted and implemented by K.M.S Inspections, with which these general conditions form an indivisible whole.

Article 2 - Applicability

These general conditions are applicable to every Offer of K.M.S Inspections, any Agreement between K.M.S Inspections and Client, and to each service that is offered by K.M.S Inspections.
Before an Agreement is concluded, Client will be provided with these general conditions. If this is not reasonably possible, K.M.S Inspections will indicate to Client in what manner Client can peruse the general conditions.
Derogation from these general conditions is not possible. In exceptional situations, the general conditions can be derogated from to the extent this is explicitly established in writing with K.M.S Inspections.
These general conditions are also applicable to additional, modified, and subsequent assignments of Client.
The general conditions of Client are excluded.
If one or more provisions of these general conditions are partly or entirely void or are annulled, the other provisions of these general conditions remain effective, and the void/annulled provision(s) will be replaced by a provision with the same purport as the original provision.
Ambiguities regarding the content, interpretation, or situations that have not been arranged for in these general conditions, must be assessed and interpreted in the spirit of these general conditions.
The applicability of the articles 7:404 BW (Civil Code) and 7:407 section 2 BW is explicitly excluded.
If reference is made in these general conditions to she/her, this must also be understood as a
In case K.M.S Inspections has not constantly demanded compliance with these general conditions, it does retain its right to demand the partial or full compliance with these general conditions.

Article 3 - The Offer

All offers made by K.M.S Inspections are non-committal, unless it is expressly indicated otherwise in writing. If the Offer is limited or is valid on specific conditions, this is expressly stated in the Offer.
K.M.S Inspections is only bound by an Offer if it is confirmed in writing by Client within the term indicated by K.M.S Inspections. K.M.S Inspections nevertheless has the right to refuse an Agreement with a (potential) Client on grounds that are legitimate for K.M.S Inspections.
The offer contains a description of the Services offered. The description is sufficiently specified to allow Client to make a sound evaluation of the offer. Any possible information in the offer is merely an indication and cannot constitute grounds for any compensation of damages or the rescission of the Agreement.
Offers or quotations do not automatically apply to subsequent assignments.
Delivery times in the offer of K.M.S Inspections in principle are indicative and to not confer the right to Client in case of their overrunning to rescission or damages, unless expressly established otherwise.

Article 4 - Adoption of the Agreement

The Agreement is adopted at the moment that Client has accepted an Offer, i.e., Agreement of K.M.S Inspections by giving explicit and unambiguous approval for the Offer by e-mail.
K.M.S Inspections has the right to revoke the (signed) Agreement within 5 business days after receipt of the acceptance.
K.M.S Inspections is not bound by an Offer if Client could reasonably have expected or has had to understand or was supposed to understand that the Offer contained an apparent mistake or typing error. Client cannot derive any rights from such mistake or typing error.
If Client cancels an assignment that has already been confirmed, the costs effectively incurred already (including the time spent) are billed to Client.
Each Agreement entered into with K.M.S Inspections or a project that is granted by Client to K.M.S Inspections lies with the company and not with an individual person who is associated with K.M.S Inspections.
The right of revocation of Client is excluded, unless established otherwise.
If the Agreement is entered into by multiple Clients, each Client individually is severally and jointly liable for compliance with all obligations flowing from the Agreement.

Article 5 - Duration of the Agreement

The Agreement is adopted for an indefinite time, unless the content, nature, or purport of the assignment entails that it is adopted for a fixed term. The duration of the assignment also depends on external factors, including, though not limited to, the quality and timely supply of the information that K.M.S Inspections receives from Client.
Both Client and K.M.S Inspections rescind the Agreement on grounds of an attributable shortcoming in complying with the Agreement if the other party was declared in default in writing and a reasonable term is still granted to it for compliance with its obligations and it still fails to correctly comply with its obligations in such case. Thereby are also intended the payment- and collaboration obligations of Client.
The rescission of the Agreement leaves unaffected the payment obligations of Client to the extent K.M.S Inspections at the time of rescission has already conducted activities or delivered performances. Client must settle the established fee.
Parties can terminate the Agreement by way of registered mail, with due regard for a notice period of three months. If the Agreement has lasted less than three months, the Agreement can be cancelled with a notice period of one month.
In case of a premature termination of the Agreement, Client owes the costs effectively incurred until such time by K.M.S Inspections against the established (hourly) rate. The time registration of K.M.S Inspections is thereby leading.
Both Client and K.M.S Inspections can cancel the Agreement without any further default notice entirely or in part and with immediate effect in case one of the parties is in a situation of suspension of payments, bankruptcy has been filed for, or the relevant enterprise ends through liquidation. If a situation as indicated above occurs, K.M.S Inspections is never obliged to refund money already received and/or to pay damages.
If Client cancels an Agreement already adopted with regard to the Services, thereby the following charges are billed. In case of cancellation until three days before the starting date, two hours are billed in conformity with the hourly rate. In case of a cancellation within three days before the starting date, four hours are billed in conformity with the hourly rate. K.M.S. Inspections has the right at all times to bill higher charges if it has incurred more costs for the purpose of the implementation of the Agreement. Thereby is also intended travel costs already incurred.
If Client cancels a reserved Service, the Client owes the full reservation charges.

Article 6 - Implementation of the provision of services

K.M.S. Inspections will exert itself to carry out the established service with the greatest possible diligence, as may be required from a good service provider. K.M.S Inspections guarantees a professional and independent provision of services. All Services are carried out based on a best-effort undertaking, unless a result was explicitly established in writing that was elaborately described.
The Agreement pursuant to which K.M.S Inspections carries out the Services is leading for the scope and reach of the provision of services. The Agreement will only be carried out for the benefit of Client. Third parties cannot derive any rights from the content of the Services implemented in connection with the Agreement.
The information and data provided by Client are the basis on which the Services offered by K.M.S Inspections and the prices are founded. K.M.S Inspections has the right to modify its provision of services and its prices in case the information provided turns out to have been incorrect and/or incomplete.
Upon implementing the Services, K.M.S Inspections is not obliged or bound to follow the indications of Client if as a result the content or scope of the established Services would be altered. If the indications result in further activities for K.M.S Inspections, Client is obliged to compensate the additional concomitant costs correspondingly on the basis of a new quotation.
K.M.S Inspections has the right to deploy third parties at own discretion for the implementation of the Services.
If the nature and the duration of the assignment require such, then K.M.S Inspections will keep Client intermediately informed of progress in the manner established.
The implementation of the Services is based on the information provided by Client. If the information must be changed, this may have consequences for such planning as may have been established. K.M.S Inspections is never liable for the adjustment of the planning. If the start, progress, or delivery of the Services is delayed because, for example, Client has not, has not timely, or has not in the format desired supplied all information requested, renders insufficient assistance, a possible down payment was not timely received by K.M.S Inspections, or due to different circumstances which are at the expense and risk of Client a delay occurs, K.M.S Inspections is entitled to a reasonable extension of the delivery term. All damage and concomitant costs as a result of delays due to a cause as listed above will be at the expense and risk of Client.

Article 7 - Obligations Client

Client is obligated to provide all information requested by K.M.S Inspections, as well as relevant appendices and related information and data timely and/or before the start of the activities and in the form desired for the purpose of the correct and efficient implementation of the Agreement. Failing such, it may occur that K.M.S Inspections is unable to realize a complete implementation and/or delivery of the relevant documents. The consequences of such a situation at all times are at the expense and risk of Client.
K.M.S Inspections is not obliged to control the correctness and/or completeness of the information provided to it, or to update Client with regard to the information if it has changed over the course of time, nor is K.M.S Inspections responsible for the correctness and completeness of the information that is composed by K.M.S Inspections for third parties and/or provided to third parties in the context of the Agreement.
K.M.S Inspections can, if this is necessary for the implementation of the Agreement, request additional information. In the absence thereof, K.M.S Inspections has the right to suspend its activities until the information is received, without being held to compensate any damages on any account whatsoever towards Client. In case of changed circumstances, Client must communicate such immediately though in any event no later than 3 business days after the change has become known to K.M.S Inspections.
Client takes all appropriate measures at the work location that are required for the implementation of the legal regulations in the matter of safety, health, wellbeing, and the environment. Client provides the information needed to K.M.S Inspections regarding the nature of the products to be treated, which may possibly imperil the safety, health, wellbeing, and the environment. Client also provides and those concerned with the personal protective gear required and/or makes sure that such are available in the immediate environment. In the absence thereof, K.M.S Inspections must immediately inform the Client.
Client is obligated to make sure that the third parties deployed by him carry out their activities and/or deliveries in such a manner that K.M.S Inspections does not encounter any delays and impediments upon implementing the Agreement.
Client is obligated to make sure that the work location is in such a state that K.M.S Inspections can carry out and/or continue its activities unobstructed.

Article 8 - Advice

K.M.S Inspections can if such has been ordered prepare an advice, plan of action, design, reporting, and/or planning for the purpose of the provision of services. The content thereof is not binding and only advisory in nature, though K.M.S Inspections will observe the duties of care it is subject to. Client decides himself and on own responsibility whether or not to follow the advice.
The advice provided by K.M.S Inspections, in any form whatsoever, can never be termed binding advice. Also in the event that K.M.S Inspections assists Client for negotiations, this advice never is legal advice. If Client interprets such advice as legal and/or fiscal advice, then Client must first discuss this with a specialist trained to such effect (lawyer/tax specialist).
Upon first request of K.M.S Inspections, Client is obligated to assess the proposals provided by it. If K.M.S Inspections is delayed in its activities, because Client does not or does not timely provide an assessment of a proposal made by K.M.S Inspections, then Client is himself responsible at all timesfor the consequences that arise as a result, such as delays.
The nature of the provision of services entails that the result is dependent at all times on external factors that may affect the reports and advice of K.M.S Inspections, such as the quality, correctness, and timely supply of the information and data required from Client and his collaborators. Client guarantees the quality and the timely and correct supply of the data and information required.
Client will report all circumstances that are or may be important before the start of the activities to K.M.S Inspections in writing, also including any points and priorities for which Client would like attention.
If the fluid does not correspond with what was ordered by Client based on the findings from the report and the advice, K.M.S Inspections can, by order of Client, write a process letter to the manufacturer of the fluid. Also in the event K.M.S Inspections thereby assists Client, it never regards legal advice. This provision also regards other parties concerned, such as a storage terminal, shipping company, buyer or seller, refinery, and other closely involved, responsible parties.

Article 9 - Additional activities and modifications

If it turns out during the implementation of the Agreement that the Agreement must be modified, or upon request of Client further activities are required in order to realize the result desired by Client, then Client is obliged to compensate such additional activities in accordance with the established rate. K.M.S Inspections is not obliged to grant this request and may demand of Client that a separate Agreement will be concluded for the purpose and/or a competent third party is referred.
If the additional activities are the consequence of negligence on the part of K.M.S Inspections, K.M.S Inspections has made the wrong assessment, or it could reasonably have foreseen the activities in case, these costs are not passed on to Client.

Article 10 - Prices and payment

All prices in principle are exclusive of sales tax (VAT), unless established otherwise.
K.M.S Inspections carries out its provision of services in conformity with the established (hourly or service) rate. The costs of the activities are calculated retroactively based on the time registration prepared by K.M.S Inspections (post-calculation).
Travel time for the benefit of Client, and costs related to travel are passed on to Client.
Client is obligated to compensate in full the costs of third parties that are deployed, following the approval of Client, by K.M.S Inspections, unless expressly established otherwise.
Parties can establish that Client must pay an advance. If an advance has been established, Client must pay the advance before a start is made with the implementation of the provision of services.
Client cannot derive any rights or expectations from a budget provided beforehand, unless parties have expressly established otherwise.
K.M.S Inspections has the right to annually increase the effective prices and rates in conformity with the applicable inflation rates. Other price changes during the Agreement are only possible if and to the extent they have expressly been established in the Agreement.
Client must settle these costs at once, without setoffs or suspensions, within the indicated payment term of no more than 14 days, as indicated on the invoice, on the account number and with the details of K.M.S Inspections communicated to him.
In case of liquidation, insolvency, bankruptcy, involuntary liquidation, or payment request vis-a-vis Client, the payment and all other obligations of Client on account of the Agreement become immediately eligible.

Article 11 - Collection policy

In case Client is not compliant with his payment obligation and has not complied with his obligation within the payment term set for it, Client falls legally into default.
From the date that Client is in default, K.M.S Inspections will be entitled without any further default notice, to the statutory commercial interest rate as from the first day of default until full settlement, and to compensation of the extrajudicial costs in conformity with article 6:96 BW (Civil Code), to be calculated according to the table from the decree on collection costs 'besluit vergoeding voor buitengerechtelijke incassokosten' of 1 July 2012.
If K.M.S Inspections has incurred more or higher costs which are reasonably necessary, these costs are eligible for compensation. Also the integrally incurred judicial and execution costs are borne by Client.

Article 12 - Privacy, data processing, and security

K.M.S Inspections handles the (personal) data of Client with care and will only use them inconformity with the effective standards. If asked to such effect, K.M.S Inspections will inform the data subject concerning.
Client is responsible himself for the processing of data that are processed with the aid of a service of K.M.S Inspections. Client also guarantees that the content of the data is not unlawful and does not violate any third-party rights. In this context, Client safeguards K.M.S Inspections against any (legal) claim that is related to these data or the implementation of the Agreement.
K.M.S Inspections on grounds of the Agreement must provide for the security of information, this security will be compliant with the established specifications and a level of security that, in view of the state of the art, the sensitivity of the data, and the associated costs, is not unreasonable.

Article 13 - Suspension and rescission

K.M.S Inspections has the right to keep the data, data files and so on received or realized by it under its control if Client has not yet (fully) complied with his payment obligations. This right remains fully effective if grounds that are legitimate for K.M.S Inspections occur which justify suspension in such case.
K.M.S Inspections is authorized to suspend compliance with the undertakings it is subject to as soon as Client is in default with complying with any undertaking flowing from the Agreement, also including late payment of his invoices. The suspension will forthwith be confirmed to Client in writing.
K.M.S Inspections in such case is not liable for damage, on any account whatsoever, as a result of the suspension of its activities.
The suspension (and/or rescission) does not affect the payment obligations of Client for activities that have already been carried out. In addition, Client is obligated to compensate K.M.S Inspections for every financial loss that K.M.S Inspections incurs as a result of Client being in default.

Article 14 - Force majeure

K.M.S Inspections is not liable in case it is unable as a result of a situation of force majeure to comply with its obligations on grounds of the Agreement.
By force majeure on the part of K.M.S Inspections is understood in any event, though it is not limited to: (i) force majeure of suppliers of K.M.S Inspections, (ii) not properly complying with obligations by suppliers that are prescribed or recommended by Client or his third parties to K.M.S Inspections, (iii) defectiveness of software or such third parties as may be involved in the implementation of the service, (iv) government measures, (v) malfunction of electricity, the internet, data network and/or telecom facilities, (vi) illness of employees of K.M.S Inspections or of advisors deployed by them, and (vii) other situations that in the opinion of K.M.S Inspections fall outside its sphere of control that temporarily or permanently prevent compliance with its obligations.
In case of force majeure, both Parties have the right to completely or partially rescind the Agreement. All costs incurred prior to the rescission of the Agreement will in such case be paid by Client. K.M.S Inspections is not obliged to compensate Client for any possible losses that were caused by such revocation.

Article 15 - Limitation of liability

If any result that has been established in the Agreement is not achieved, a shortcoming of K.M.S Inspections is only deemed to exist if K.M.S Inspections has expressly promised such result upon acceptance of the Agreement.
In the event of an attributable shortcoming of K.M.S Inspections, K.M.S Inspections is exclusively bound to pay any damages if Client has declared the default of K.M.S Inspections within 14 days after discovery of the shortcoming, and K.M.S Inspections subsequently has not restored this shortcoming within a reasonable term. The default notice must have been submitted in writing and contains such a precise description/substantiation of the shortcoming, so that K.M.S Inspections is able to respond adequately.
If the conducting of the Services by K.M.S Inspections leads to liability of K.M.S Inspections, such liability is limited to the total amount that is invoiced in the context of the Agreement, though only with regard to the direct damage incurred by Client, unless the damage is the result of willful intent or recklessness bordering on intent on the part of K.M.S Inspections. By direct damage is intended: reasonable costs incurred to mitigate or prevent direct damage, the determination of the cause of damage, the direct damage, the liability, and the manner of restoral.
K.M.S Inspections expressly excludes any liability for consequential damage. K.M.S. Inspections is not liable for indirect damage, business damage, loss of profit and/or incurred losses, missed savings, damage due to operational stagnation, financial losses, delay damage, interest damage, and immaterial damage.
Client safeguard K.M.S Inspections against all third-party claims as a result of a defect as a result of a service that is provided by Client to a third party and that also consisted of Services provided by K.M.S Inspections, unless Client can prove that the damage was exclusively caused by the service of K.M.S Inspections.
Any advice delivered by K.M.S Inspections based on incomplete and/or incorrectly provided information from Client never constitutes grounds for liability of K.M.S Inspections.
The content of the delivered advice of K.M.S Inspections is not binding and only advisor in nature. Client decides himself and under his own responsibility whether he follows the proposals and the advice included therein of K.M.S Inspections. All consequences flowing from the following of the advice are at the expense and risk of Client. Client is at liberty at all times to make his own choices that deviate from the delivered advice of K.M.S Inspections. K.M.S Inspections is not obliged to provide any form of refund if such is the case.
If a third party is deployed by or on behalf of Client, K.M.S Inspections is never liable for the actions and advice of the third party deployed by Client or for the incorporation of results (of advice drawn up) of the third party deployed by Client in the own advice of K.M.S Inspections.
K.M.S Inspections does not guarantee a correct and complete transmission of (the content of) e-mail sent by/on behalf of K.M.S Inspections, nor the timely receipt thereof.
All claims of Client on account of falling short on the part of K.M.S Inspections lapse if they are not reported in writing, including substantiation, to K.M.S Inspections within one year after Client was aware or could reasonably have been aware of the facts on which he bases his claims. One year after termination of the Agreement between parties, the liability of K.M.S Inspections lapses.

Article 16 - Confidentiality

K.M.S Inspections and Client commit themselves to the secrecy of all confidential information that was obtained in the context of an assignment. The confidentiality flows from the assignment and must also be assumed if one can reasonably expect that it regards confidential information. The secrecy does not apply if the relevant information already is public/common knowledge, the information is not confidential and/or the information was not communicated at Client to K.M.S Inspections during the Agreement and/or was obtained by K.M.S Inspections in another manner.
The secrecy especially regards advice, reports, designs, work method and/or reporting prepared by K.M.S Inspections regarding the assignment of Client. It is expressly prohibited to Client to share the content thereof with collaborators who are not authorized to take cognizance thereof and with (unauthorized) third parties. In addition, K.M.S Inspections always observes due diligence when dealing with all business-sensitive information provided by Client. The secrecy also regards shared information regarding clients and third parties of K.M.S Inspections.
If K.M.S Inspections is obliged on grounds of a legal provision or a court ruling to (also) provide the confidential information to a designated third party, or one indicated by the law or the competent court, and K.M.S Inspections is unable to appeal to legal privilege, K.M.S Inspections is not obliged to pay any damages and does not provide grounds to Client for the rescission of the Agreement.
For the transmission or distribution of information to third parties and/or the publication of statements, advice, or exhibits that are provided by K.M.S Inspections to third parties, the written permission of K.M.S Inspections is required, unless such permission was expressly established beforehand. Client will safeguard K.M.S Inspections against all claims from such third parties as a result of relying on such information that was distributed without the written consent of K.M.S Inspections.
The confidentiality obligation will also be imposed by K.M.S Inspections and Client on the third parties to be deployed by them.

Article 17 - Intellectual Property Rights

All IP-rights and copyrights of K.M.S Inspections, including in any case, though not limited to, all reports and advice, lies exclusively with K.M.S Inspections and are not transferred to Client, unless expressly established otherwise.
If it has been established that one or several of said matters, i.e., works of K.M.S Inspections are transferred to Client, K.M.S Inspections has the right to conclude a separate Agreement for this and to demand a monetary compensation that is appropriate for it from Client. Such a fee must be settled by Client before he obtains the relevant matters, i.e., works with the IP-rights they are subject to.
It is prohibited to Client to disclose and/or multiply any of the documents and software that are subject to the IP-rights and copyrights of K.M.S Inspections, or to modify them or provide them to third parties (also including use with commercial purposes) without the express prior written consent of K.M.S Inspections. If Client wishes to apply change to matters delivered by K.M.S Inspections, K.M.S. Inspections must explicitly give its approval for the intended changes.
It is prohibited to Client to use the matters and documents that are subject to the intellectual property rights of K.M.S Inspections in another manner than is established in the Agreement.
Parties will inform each other and take measures jointly if a violation of IP-rights occurs.
Any violation of Client on the IP-rights (and copyrights) of K.M.S Inspections is sanctioned by a oneoff fine to the amount of € 10,000 (in words: ten thousand euros) and a fine of € 500 (in words: five hundred euros) for each day that the violation continues.

Article 18 - Indemnification and correctness of information

Client is responsible himself for the correctness, reliability, and completeness of all data, information, documents and/or paperwork, in any for whatsoever, that he provides to K.M.S Inspections in the context of an Agreement, as well as for the data he has obtained from third parties and which were provided to K.M.S Inspections for the purpose of the implementation of the Service.
Client safeguards K.M.S Inspections against any liability as a result of not or not timely complying with the obligations with regard to the timely provision of all correct, reliable, and complete data, information, documents and/or paperwork.
Client safeguards K.M.S Inspections against all claims of Client and third parties deployed by him or operative under him, as well as of customers of Client, based on not (timely) obtaining any possible subsidies and/or permits required in the context of the implementation of the Agreement.
Client safeguards K.M.S Inspections against all claims by third parties that flow from the activities conducted for the benefit of Client, whereby are also intended, though they are not limited to, intellectual property rights to the data and information provided by Client that can be used upon implementing the Agreement and/or the actions or omissions of Client towards third parties.
If Client provides electronic files, software, or information carriers to K.M.S Inspections, Client guarantees that these are free from viruses and defects.

Article 19 - Complaints

If Client is not satisfied with the service of K.M.S Inspections or has complaints otherwise about the implementation of his assignment, Client is obliged to report these complaints as soon as possible, though no later than within 7 calendar days after the relevant occasion that led to the complaint. Complaints can be reported verbally or in writing by email to ops@kmsinspections.nl with "Complaint" as its subject.
The complaint must be sufficiently substantiated and/or explained by Client for K.M.S Inspections to be able to take the complaint under advisement.
K.M.S Inspections will respond as soon as possible, though no later than within 7 calendar days after receipt of the complaint, to the substance of the complaint.
Parties will try to reach a solution in mutual consultation.

Article 20 - Applicable law

To the legal relationship between K.M.S Inspections and Client, Netherlands legislation is applicable.
K.M.S Inspections has the right to modify these general conditions and will accordingly inform Client.
In case of translations of these general conditions, the Dutch version is leading.
All disputes that have arisen through or in connection with the Agreement between K.M.S Inspections and Client, are settled by the competent court of law of Rechtbank Amsterdam(location Amsterdam), unless provisions of mandatory law designate a different competent court.

Nieuw Vennep, 2 Mei 2022

Richard Kruis