General Terms and Conditions of Delivery and Payment of Global Creations, established in Nijkerk, which terms and conditions in Dutch were filed with the trade register of the Gooi and Eemland Chamber of Commerce and Industry in Almere under file number 32084997 on 27 july 2017.
Article 1. Definitions 1.1
The following terms are defined as follows in these General Terms and Conditions:
Client: the party issuing the order to the Supplier. Supplier: the party accepting the order from the Client. The Supplier is a user of these General Terms and Conditions. Third Parties: a party currently or formerly involved with the Supplier in any legal relationship, including the Client and/or entities affiliated to the Client, including in cases covered by a framework agreement.
Article 2. Applicability
2.1 These General Terms and Conditions are applicable to all offers made to Third Parties and to all agreements entered into with them. They form an integral part of the offers and/oragreements.
2.2 The instruction or order of the Client will be deemed acceptance of these General Terms and Conditions. Any general terms and conditions of purchasing of Third Parties applicable pursuant to article 3 will not be affected, inasmuch as they do not conflict with these General Terms and Conditions. If provisions in the general terms and conditions of purchasing of Third Parties are in conflict with the provisions in these General Terms and Conditions, the provisions in these General Terms and Conditions will be binding.
2.3 Full or partial divergence from these General Terms and Conditions is only possible if and inasmuch as this is agreed with the Supplier in writing.
2.4 In the event of invalidity or voidability of any provision of these General Terms and Conditions or of the agreements entered into under these General Terms and Conditions, this will have no effect on the validity of the other provisions.
Article 3. General terms and conditions of Client and/or Third Parties
3.1 The general terms and conditions of the Client and/or Third Parties are explicitly rejected; the Supplier will only accept applicability of the general terms and conditions of the Client and/or Third Parties for an order if these have been accepted or agreed explicitly and in writing.
3.2 The general terms and conditions of Third Parties will only be accepted by the Supplier subject to the conditions stated above and will only be applicable to the agreements to which they are applicable. Later agreements between the same contract parties will not automatically be subject to these general terms and conditions. Applicability of these general terms and conditions must be agreed separately in writing and explicitly for each agreement.
Article 4: Offers
4.1 All offers, made in any form whatsoever by the Supplier, are free of obligation and based on the data provided by the Client, and must be considered as a whole unless explicitly stated otherwise in writing. Offers can only be accepted without variances, unless otherwise agreed in writing. The period of validity of these offers is 14 days after the date they are sent, unless the Supplier has stated a different period in the offer or when sending the offer. Offers are only legally valid if they have been signed by a duly authorised person of the Supplier. The Client will have the option of extending the period within which the offer must be accepted by a period to be determined byit.
4.2 Images, drawings, measurements and weights and estimates made known by the Supplier are not binding on the Supplier and are only intended to provide the general impression of that which is offered by the Supplier. In the event that samples are provided by the Supplier with its offers, or colours/colour combinations are indicated or referred to, these statements serve to give an impression of the product to be supplied and are not binding in terms of the composition and/or quality to be supplied. Variances do not give the Client the right to refuse receipt of the products or payment of them or a change to the agreement, or to demand any compensation for loss from the Supplier.
4.3 Estimates for work to be performed by the Supplier are also not binding on the Supplier and are only intended to provide an indication of the work to be performed by the Supplier. Variances in terms of the nature and scope of the work to be performed to not entitle the Client to refuse payment for them or to demand any compensation from the Supplier.
4.4 All prices indicated are exclusive of turnover tax and other levies imposed by the Dutch government or foreign government. If the Supplier offers multiple products in an offer and states a single price, this price will only be applicable to the offer as a whole.
4.5 If the offer pertains to or includes the supply of printed matter, a margin of 10% is permitted, on the understanding that the Client is required to take delivery of and pay for 10% more or lessquantity.
4.6 The issuing of an offer does not mean the Supplier is required to enter into an agreement with the Client. If the offer of the Supplier is not accepted and no agreement comes into being between the parties, Third Parties are not permitted to make use of the information in the offer, except with the written permission of the Supplier.
Article 5. Agreements
5.1 Arrangements and agreements with subordinates of the Supplier are not binding on the Supplier inasmuch as they have not been confirmed or accepted in writing by the Supplier. All employees and staff members who are not authorised to represent are to be deemed subordinates in this context.
5.2 The agreement comes into being at the moment the order confirmation signed by the Supplier and the Client has been received by the Supplier, or at the moment commencement of realisation of the order by the Supplier actually takes place, if this is earlier.
5.3 The agreement is entered into for an indefinite period, unless it is clear from the content, nature or tenor of the order placed that it is entered into for a specific period.
5.4 Each agreement entered into with the Client contains the resolutive condition that the sufficient creditworthiness of the Client has been demonstrated, at the exclusive discretion of theSupplier.
5.5 The rights from the agreement entered into between the Client and the Supplier are non-transferable, unless otherwise agreed in writing.
5.6 In the event of a framework agreement with the Client, the Client will be required to impose the obligations under these General Terms and Conditions on the entities affiliated to it which are covered by the framework agreement. The Client indemnifies the Supplier for any losses arising fromthis.
Article 6. Amendment of the order
6.1 Supplementary arrangements or changes to the order issued to the Supplier will only be valid if these have been agreed in writing or confirmed by the Supplier in writing, and no written objection has been made to this by the Client within 5 workdays of the confirmation being sent.
6.2 If the Supplier is faced with higher costs as a result of explicitly agreed supplementary arrangements or changes to the order issued to the Supplier, or these result in additional work to that on which the price estimate or quotation was based, these costs or additional work will be charged additionally to the Client. On the other hand, changes which result in lower costs or less work will result in payment of a lower amount than that agreed. All in accordance with article 7.5.
6.3 Any desired changes to the realisation of the agreement requested after the agreement has come into being in accordance with the provisions in article 5.2 must be notified by the Client to the Supplier in good time and in writing. If these changes are notified verbally or by telephone, implementation of these changes will be wholly at the risk of the Client. The Supplier reserves the right to refuse requested changes, without this granting the Client the right to terminate the agreement or to demand compensation for loss from the Supplier in any way.
6.4 Changes implemented may result in an overrun of the delivery period agreed before the changes, which overrun will in such cases be at the expense and risk of the Client.
6.5 The Client will bear the risk of misunderstandings regarding the content and realisation of the order/ agreement if these are the result of incorrect, late or incomplete specifications or other notifications received by the Client which were issued verbally or by a person designated by the Client or which were communicated by means of a technical method such as telephone, fax and similar transmission media.
Article 7. Price adjustments
7.1 The Supplier is entitled to increase the agreed price if, as a result of unforeseen circumstances occurring after the quotation or offer has been issued, the costs of materials, semi-manufactured products or services required in the realisation of the agreement increase, or if other circumstances occur which cause an increase to the costs of the product to be supplied or the services to be performed.
7.2 If work or products are included in the offer which are performed and/or supplied by the Client and the Client does not comply with this obligation, the Supplier will be entitled to charge on to the Client the costs for carrying out said work or supplying said products itself, without prejudice to do right of the Supplier to terminate the agreement in accordance with the provisions in article 14.
7.3 In the event that costs are incurred by the Client as a result of work to be performed by the Supplier, these costs will be borne at all times by the Client, unless otherwise agreed inwriting.
7.4 Costs occurring as a result of the Client failing to make it possible for the Supplier to realise the agreement, or not granting its cooperation to the Supplier, will be charged on to the Client.
7.5 Accordingly, the Supplier is authorised in accordance with article 6 to increase or reduce the agreed price if the Client makes changes to the original specifications. Within reasonable limits, the Supplier will cooperate on these changes, if the content of that to be realised by it does not differ essentially from that originally agreed.
Article 8. Intellectual property rights
8.1 The Supplier reserves all intellectual property rights on designs, images, drawings, samples, models, etc. provided by the Supplier. Publication, copying and/or reproduction of these in any way whatsoever are only permitted with the explicit written permission of the Supplier.
8.2 The designs, images, drawings, samples, models, etc. will remain the inalienable property of the Supplier and must be returned immediately at the Supplier's request. No exception to the above will be applicable if the manufactured works are listed as a separate item in the offer on the invoice.
8.3 For each action in breach of this provision performed by the Client, subordinates and employees of the Client or enterprises or persons which are affiliated in any way with the Client, the Client will owe a penalty of €50,000 per breach and €1,000 for each day that the breach continues, which penalty will not be eligible for judicial mitigation, without prejudice to the right of the Supplier to claim further compensation forloss.
Article 9. Realisation of the order and delivery
9.1 The Supplier will determine the manner in which the order placed is realised, and by which person. If Third Parties are engaged by the Supplier, direct agreements will come into being between said Third Parties and the Client if this has been agreed between the Client and the Supplier. In such cases, the Supplier will not be a party to these agreements entered into between the Third Parties and the Client. By accepting the order, the Client agrees to the Third Parties designated and to be designated by the Supplier which will be performing work or supplying products in the context of the order placed.
9.2 If the Client itself wishes to engage Third Parties in the performance of the order, it will not do so until it has reached agreement in the matter with the Supplier. The work to be carried out by Third Parties at the instructions of the Client will take place wholly at the expense and risk of the Client. The Supplier does not accept any liability vis-à-vis the Client regarding the work performed and/or to be performed by the Third Parties appointed by the Client.
9.3 The products to be supplied to the Client will be at the risk of the Client from the moment of receipt by the Supplier, unless otherwise agreed in writing. Any transportation will take place at the expense and risk of the Client in all circumstances.
9.4 Agreed delivery times will be considered estimates at all times, unless explicitly otherwise agreed. With due observance of the provisions in the matter in article 12, at no time may an overrun of the delivery time result in a claim for compensation, in any form whatsoever, or to termination of the agreement, with the exception of the provision in article 9.8.
9.5 Delivery times issued by the suppliers of the Supplier are not binding on the Supplier. The Supplier does not accept any liability with regard to a possible overrun of the delivery time stated by the suppliers of the Supplier. In such cases, the Client will also not be entitled to any compensation for loss, in any form whatsoever, or to termination of the agreement, with the exception of the provision in article 9.8.
9.6 If the Client refuses to take delivery of the products supplied by the Supplier, the Client will be required to reimburse the Supplier for all costs arising from this refusal. In such situations, the products will be kept at the Client’s disposal at the expense and risk of the Client, although the Supplier will be entitled to sell or otherwise make available the products to a Third Party, without prejudice to the Supplier’s right to claim reimbursement
of losses, loss of profits and/or interest. The Supplier will also be entitled to suspend the agreement and, if
appropriate, terminate it, in accordance with that stated in article 14. 9.7 In the event that the Client refuses to grant access to the location in which the Supplier must carry out the work
in the context of realisation of the agreement, or – temporarily or permanently – de facto impedes the Supplier from gaining said
access, the Client will be required to reimburse the Supplier for all costs and losses arising from this. The Supplier will also be entitled to suspend the agreement and, if appropriate, terminate it, in accordance with that stated in article 14.
9.8 If it has been stipulated in the agreement that delivery will take place at a certain time and the Client has notified the Supplier in writing that this period cannot be overrun under any circumstances, the Client will be entitled – if delivery has not taken place after the agreed time – to terminate the agreement, if the Supplier is in default in the matter. All except in cases of force majeure affecting the Supplier, as referred to in article 14. The Client is required to notify the Supplier immediately in writing of its invocation of termination. At no time will Supplier be liable for loss, in any form whatsoever, occurring as a result of late delivery ornondelivery.
9.9 In the event that goods have been made available by the Supplier to the Client for the duration of the agreement, these goods will be at the expense and risk of the Client from the moment of delivery to the Supplier, and the Client must insure them adequately. At the end of the agreement, the goods will be inspected by or on behalf of the Supplier. Any damage will be at the expense and risk of the Client.
Article 10 Cancellation
10.1 If the Client cancels the order and/or refuses to take delivery of the products to be supplied by the Supplier, it will be required to reimburse the loss referred to in article 9.6 to the Supplier. The Client will also owe the Supplier, by way of additional compensation, an amount for the work already performed by the Supplier, all in accordance with the price arrangements made between the parties. The Client also indemnifies the Supplier against all third-party claims resulting from the cancellation of the order and/or refusal of the products.
10.2 Without prejudice to the provisions in the previous paragraph of this article, the Supplier reserves all rights to demand full compliance with the agreement and/or full compensation forloss.
Article 11 Claims and complaints
11.1 The Client is required to inspect the products thoroughly immediately after delivery for defects and, if these are encountered, to notify the Supplier of them immediately in writing. If the Client does not notify the Supplier within 8 days of the date of delivery of faults which were able to be discovered during a thorough inspection, the Client is deemed to have accepted the condition in which the purchased item has been delivered or completed, and all rights to submit complaints will lapse.
11.2 The Supplier must be given the opportunity to check complaints submitted. Complaints will no longer be considered by the Supplier if the Client has commenced processing or onward supply, while the Client could have discovered the alleged fault in the products after a thorough inspection.
11.3 The inadequacy of the products can be demonstrated by the Client using all means, on the understanding that inadequacy is only deemed to mean the noncompliance of the product supplied with the specification(s) applicable to the product.
11.4 The Client is subject to the burden of proof that the products to which the complaint pertains are the same as those supplied by the Supplier.
11.5 If, in the opinion of the Supplier, the complaint is correct, the Supplier will either - at the Supplier’s discretion - pay fair compensation to the level of the invoice value of the products supplied, or replace the products supplied at no charge after they have been returned by the Client in their original condition. Payment of the compensation by the Supplier will take place with due observance of the provisions in articles 15.8 and 15.9. The Supplier will not be required to pay any further compensation or reimbursement of costs, however it is referred to.
11.6 Complaints do not entitle the Client to demand termination of the agreement or to fail to make or defer full or partial payment.
11.7 Complaints pertaining to work carried out and/or services provided and/or the invoice amount must be submitted in writing within 5 days of the work carried out and/or of the invoice being sent. The provisions in paragraphs 1 through 6 of this article will be applicable by analogy, unless this is in conflict with the nature or tenor of the article paragraph in question.
Article 12. Liability
12.1 At no time will the Supplier be required to reimburse loss or damage suffered directly or indirectly, in any form whatsoever, resulting from the late delivery, unsoundness of supplied products, or otherwise, unless the loss or damage referred to above occurred as a result of intent or gross negligence on the part of the Supplier.
12.2 The Supplier is not liable for loss or damage, in any form whatsoever, caused by the work performed by Third Parties in the context of realisation of the order, or which occur as a result of the products supplied by Third Parties in the context of realisation of the order.
12.3 The Supplier is not liable for any damage or value reduction to products occurring during their shipment, if delivery takes place carriage unpaid.
12.4 The exclusion from liability referred to above is also stipulated for employees and staff members of the Supplier and for Third Parties engaged for work by or on behalf of the Supplier or whose services are used by the Supplier. The Client is required to indemnify both the Supplier and the persons and legal entities referred to in this clause against possible third-party liability.
12.5 With due observance of that stated above, the liability of the Supplier will never exceed the level of the net invoice amount for the delivery in question, nor will the liability of the Supplier ever exceed the cover of the liability insurance policy taken out by the Supplier.
12.6 The clauses in the above article paragraphs exclude the liability of the Supplier inasmuch as this is not in conflict with the provisions of statutory law.
12.7 The Client indemnifies the Supplier against third-party liability in the context of damage or loss relating to or arising from the products supplied by the Supplier (or their use) and/or work performed by the Supplier, unless this loss or damage is the result of intent or gross negligence on the part of theSupplier.
Article 13. Retention of title
13.1 Until such a time as all receivables held or to be held by the Supplier against the Client, by virtue of any reason whatsoever, have been paid in full, the products supplied by the Supplier will remain the exclusive property of the Supplier, whether or not they have been processed or are unprocessed. In the event of any
damage, the Supplier will be entitled to any compensation paid out by insurers.
13.2 The Client will is not authorised, without the written permission of the Supplier, to establish pledges or other collateral rights on these products or otherwise perform acts of disposition pertaining to the sold and delivered products.
13.3 In the event that the Client does not comply with any obligation arising from an agreement entered into with the Supplier, or there is a well-founded fear that it will not comply with its obligations, Supplier will be entitled to repossess the products without any notice of default, and the Client will be required to return the products carriage paid to the Supplier immediately on request. In the event that the Supplier invokes the retention of title, the agreement(s) will also be terminated without judicial intervention, without prejudice to the Supplier’s right to demand reimbursement of losses, loss of profits and interest.
13.4 The Supplier will also have the authorisations referred to above in paragraph 3 of this article if the Client goes into liquidation, takes a decision to make a repayment on shares, takes a decision to merge or demerge, requests or has been granted protection from its creditors, has been declared bankrupt or has applied for bankruptcy, or there is a threat of attachment of its assets or (if the Client is a natural person) if he/she dies, moves abroad or loses the free disposition of his/her assets.
13.5 The Client is required to notify the Supplier in writing immediately of the fact that Third Parties are asserting rights to products on which a retention of title exists pursuant to thisarticle.
13.6 If at any time it becomes apparent that the Client has not complied with these obligations, the Client will owe an immediately payable penalty of 10% of the unpaid portion of what itowes.
Article 14. Imputable breach of contract, suspension and termination
14.1 In the event that the Client wholly or partially fails imputably in compliance with any obligations ensuing from the agreement entered into with the Supplier, and in the event of bankruptcy or an application by the Client for bankruptcy or for protection from its creditors, or in the event of cessation or liquidation of its business, or in the event of a threat of attachment of its assets or (if the Client is a natural person) if he/she dies, moves abroad or loses the free disposition of his/her assets, he/she will be deemed in default ipso jure without the requirement of any notice of default in the matter. The Supplier will then be entitled to wholly or partially terminate the agreement(s), or to suspend the realisation of these agreements, without the Supplier being required to pay any compensation or provide any guarantee and without prejudice to the other rights of the Supplier. The Supplier will be entitled to demand payment by the Client for costs already incurred, loss and interest, including lost profits suffered by the Supplier as a result of the breach of contract of the Client.
14.2 In the event that realisation of the agreement is impeded as a result of force majeure, both the Supplier and the Client are entitled either to suspend realisation of the agreement for a maximum of six months without judicial intervention, or to wholly or partially terminate the agreement.
14.3 The term force majeure will be deemed to include all involuntary disruptions or hindrances as a result of which realisation of the agreement becomes more costly or difficult or compliance with the agreement can no longer reasonably be expected of the Supplier, such as storm damage and other natural disasters, flooding, fire or other destruction in factories or warehouses, hindrances by Third Parties, whole or partial labour strikes, lockouts, both here in the Netherlands and in the country of origin of the materials, war or risk of war here in the Netherlands or in other countries, full or partial mobilisation, a state of siege, riots, sabotage, loss of or damage to material during transportation, illness of irreplaceable employees, excessive absence due to illness by personnel, exceptional circumstances such as import and export prohibitions, restrictive measures of any government body, lack of or breakdown of means of transportation, nondelivery or late delivery of goods by suppliers, power cuts and, in general, all circumstances, events, causes and consequences which fall outside the control of the Supplier.
14.4 In the event that realisation of the agreement is suspended as a result of force majeure, the party at whose instruction or request suspension takes place is required to opt within 14 days for realisation of or for full or partial termination of the agreement, and to notify the other party by registered letter of itschoice.
14.5 The Supplier will be entitled to demand payment for work performed in the realisation of the agreement in question and for partial deliveries made by the Supplier before the circumstance causing force majeure occurred.
14.6 The Supplier is also entitled to invoke force majeure if the circumstances causing the force majeure occur after the work should have been performed.
14.7 In the event of termination suspension of the agreement by the Supplier as a result of force majeure, the Supplier will be required to pay any compensation in any formwhatsoever.
Article 15. Payment
15.1 Payments must be made within 14 days of the invoice date, unless a different period is stated on the invoice or has been otherwise agreed in writing.
15.2 All payments must take place in Netherlands currency – unless otherwise agreed in writing – without any deduction or setting off, at the offices of the Supplier or by transfer to an account to be indicated by the Supplier.
15.3 Complaints of any nature whatsoever will at no time entitle the Client to refuse and/or suspend payment of an invoice.
15.4 The Supplier will at all times be entitled to require sufficient collateral from the Client for all that which the Client owes and/or will owe the Supplier. If the Client remains in default with regard to providing the sufficient collateral requested by the Supplier, the Supplier will be authorised either to suspend realisation of the agreement or to terminate the agreement. Suspension and termination of the agreement will correspondingly be subject to that stated in article 14.
15.5 The Supplier is entitled at all times to request a full or partial advance payment of the purchase price or an advance payment by the Client for the work to be billed. If the Client fails to comply with this request, the Supplier will be authorised either to suspend realisation of the agreement or to terminate the agreement. Suspension and termination of the agreement will correspondingly be subject to that stated in article 14.
15.6 If payment of a sent invoice has not taken place within the payment period stipulated in these terms and conditions or within a separately agreed payment period, the Client will be in default ipso jure, without the requirement of any notice of default. In such cases the Supplier will be authorised to charge the statutory rate of interest plus 3% over and above the amount owed to it as of the due date, in which context part of a month will be counted as a full month.
15.7 All the costs relating to collection of any amount owed by the Client to the Supplier – judicial as well as extrajudicial costs – will be borne by the Client. Extrajudicial collection costs will be owed in any event by the Client in cases in which the Supplier engages the help of a Third Party for the collection. These costs will in any event amount to 15% of the amount to be collected, with a minimum of €250. If the actual extrajudicial costs incurred by the Supplier are more than this, the Client will owe these costs to the Supplier. The mere fact that the Supplier has engaged the help of a Third Party will determine the level of the extrajudicial costs and the obligation to pay them.
15.8 Payments by the Client to the Supplier will serve in the first place to reduce the judicial and extrajudicial costs incurred by the Supplier, then to reduce the interest accrued and finally to reduce the principal amount, and in the event that the Supplier has sent multiple invoices to the Client which remain unpaid, payments will initially serve to reduce the most recent invoice.
15.9 If the Supplier pays the Client reasonable compensation after acceptance of claims and complaints, the amount of this compensation will be deducted from the receivable which the Supplier has against the Client in accordance with article 15.8. If the Supplier no longer has any receivable against the Client, the amount will be reimbursed to the Client.
16.1 All disputes, including disputes which are only deemed such by one of the parties, arising from relating to offers or agreements to which these terms and conditions are applicable or pertaining to the terms and conditions themselves and their interpretation or implementation, will be subject to the opinion of the absolute competent court which is competent in the place of establishment of the Supplier, without prejudice to the authorisation of the Supplier to put the matter before the court in the place of residence or place of establishment of the Client.
16.2 All offers and agreements to which these terms and conditions are applicable are also subject to Netherlands law.