GENERAL SUPPLY CONDITIONS
Filed on January 5, 2022 under No. 1/2022 at the Registry of the District Court of Amsterdam
Article 1: Definitions
Article 2: Applicability
Article 3: Offers
Article 4: Conclusion of agreements and cancellation
Article 5: Prices
Article 6: Price Changes
Article 7: Payment term
Article 8: Terms of delivery; retention of title
Article 9: Term of delivery
Article 10: Examination upon delivery
Article 11: Typesetting, printing or other proofs
Article 12: Deviations
Article 13: Contracts for an indefinite period of time; periodic publications
Article 14: Intellectual property, etc.
Article 15: Ownership of means of production, etc.
Article 16: Ownership of principal, lien
Article 17: Materials, products, specifications, etc. supplied by the principal.
Article 18: Force majeure
Article 19: Liability
Article 20: Security
Article 21: Processing of personal data
Article 22: Secrecy
Article 23: Time limits
Article 24: Dissolution
Article 25: Applicable law
Article 1: Definitions
In these delivery terms and conditions, the following definitions shall apply:
a. Principal: the natural or legal person who has given the supplier an order to manufacture or deliver goods, provide services or perform work;
b. Supplier: the natural or legal person who has accepted the order referred to under a, or has issued an offer preceding a possible order, or has otherwise entered into an agreement with the principal;
c. Agreement: every agreement between the supplier and the principal regarding the manufacture or delivery of goods, the provision of services or the performance of work;
d. Offer/offer: any offer by the supplier to enter into an agreement;
e. Information carriers: magnetic tapes and disks, optical disks and all other means intended for recording, processing, sending or reproducing or making public texts, images or other data by means of equipment, all this in the broadest sense of the word;
f. KVGO: Royal Association of Graphic Industries, having its registered office at Schiphol-Rijk, the Netherlands.
g. Personal Data: personal data in the sense of Art. 4(1) of the General Data Protection Regulation (UAVG and AVG);
h. Processing/Processing of Personal Data: processing in the sense of Art 4 (2) of the General Data Protection Regulation (UAVG and AVG).
Article 2: Applicability.
1. These delivery terms and conditions shall apply to the conclusion, content and performance of all agreements concluded between the supplier and the principal, or offers, acceptances, order confirmations and other (legal) acts of the supplier, whether or not in electronic form.
2. General (purchase) terms and conditions of the principal shall only apply if it has been expressly agreed in writing that they shall apply to the contract between the parties to the exclusion of these delivery terms and conditions. Acceptance in this way of the applicability of the (purchase) conditions of the client to an agreement shall in no case imply that these conditions shall also tacitly apply to any further agreement concluded.
3. If these terms and conditions of delivery have been applicable to any agreement, they shall automatically - without the need for a separate agreement between the parties - apply to any agreement concluded between the parties thereafter, unless otherwise expressly agreed in writing between the parties in respect of the agreement in question.
4. If any provision of these terms of delivery is void or is nullified, all other provisions shall remain in full force and effect. To replace the void or nullified provisions, new conditions will be made between the parties that are
legally valid but as close as possible to the original purport.
5. To the extent that an agreement deviates from one or more provisions of these terms of delivery, the provisions of the agreement shall prevail. The other provisions of these terms of delivery shall in that case continue to apply to the agreement in full.
6. If translations of these terms of delivery have been issued, the version in the Dutch language shall prevail over the version(s) in another language.
Article 3: Offers.
1. The mere submission of an offer with or without an indicated quotation, budget, pre-calculation or similar communication shall not oblige the supplier to enter into a contract with the principal.
2. Offers made by the supplier shall always be without obligation and can only be accepted without deviations by means of a written communication, whether or not made electronically. An offer shall in any case be deemed to have been rejected if it has not been accepted within one month, unless another period for acceptance has been specified in the offer.
3. Obvious mistakes or errors in the supplier's offer shall not bind the supplier.
4. An offer accepted by the principal within the period of validity may be revoked by the supplier for 7 days from the date of receipt of the acceptance by the principal, without this leading to any obligation on the part of the supplier to compensate any damage suffered by the principal as a result.
5. If the principal provides the supplier with data, information, drawings and the like with a view to making an offer, the supplier may assume their accuracy and shall base his offer on them. The principal shall indemnify the supplier against any claim by third parties relating to the use of data, information, drawings and the like supplied by or on behalf of the principal.
Article 4: Conclusion of agreements and cancellation
1. Subject to the other provisions of these terms and conditions of delivery, a contract shall only be formed:
(a) by acceptance by the principal of an offer;
b) by written confirmation of an order given by the principal (orally or in writing) other than on the basis of an offer;
c) by the supplier actually carrying out an order of the principal.
2. The agreement replaces and supersedes all previous proposals, correspondence, agreements or other communications between the parties that have taken place prior to entering into the agreement, however they may differ from or conflict with the agreement.
3. Amendments and/or additions to the agreement shall only apply after written acceptance thereof by the supplier. The supplier shall not be obliged to accept amendments and/or additions to an agreement and shall be entitled to demand that a separate agreement be entered into. The supplier is authorized to charge any costs related to the
amendments and/or additions to the agreement to the principal.
4. Promises by and agreements with subordinates or representatives of the supplier shall only bind the supplier to the principal if and insofar as these promises and/or agreements have been confirmed or endorsed in writing by the supplier to the principal.
5. The principal shall be entitled to cancel a contract before the supplier has started to carry out the contract provided that he compensates the supplier for the damage resulting from this. Such losses shall include the losses and loss of profit incurred by the supplier and in any case the costs already incurred by the supplier in preparation of the contract to be executed, including but not limited to those of reserved production capacity, purchased materials, services called in and storage.
6. Cancellation of agreements to manufacture periodic expenses as referred to in Article 13 shall not be possible.
Article 5: Price
1. Prices stated in an offer or agreement are in Euros and are - unless explicitly stated otherwise - exclusive of costs for packaging, transport and other costs of shipment, import documents, (transport) insurance(s), travel time, travel costs and accommodation costs and also exclusive of turnover tax and/or other government levies of any kind.
2. The price quoted by the supplier for the performance to be carried out by him shall apply only to the performance in accordance with the agreed specifications.
3. In the case of composite offers there is no obligation to supply part of the total performance at the amount stated for this part in the offer or at a proportionate part of the price stated for the whole.
4. If no price has been agreed upon between the parties, but the parties have concluded one or more agreements with an equal or almost equal content in a year prior to the agreement, the price shall be calculated on the basis of the production methods and calculation rates used therein, whereby the prices as applicable at the time of entering into or performing the present agreement shall be used.
5. If, outside the application of the provisions of the previous paragraph of this article, no price has been agreed upon between the parties, if a price has only been given by way of estimate, or if the agreed price may be changed pursuant to these general terms and conditions, the price or the change in the price shall be fixed at an amount considered reasonable in the graphic media industry.
Article 6: Price changes
1. The supplier shall be entitled to increase the agreed price if one or more of the following circumstances occurs after the conclusion of the agreement: an increase in the cost of materials, semi-finished products or services required for the performance of the agreement, an increase in shipping costs, in wages, in employer's social security contributions, in the costs associated with other terms and conditions of employment, the introduction of new and increase in existing government levies on raw materials, energy or residues, a significant change in currency relations or, in general, circumstances comparable to the foregoing.
2. Extra workable text, unclear copy, unclear sketches, drawings or models, faulty data carriers, faulty computer software or data files, faulty method of delivery of the materials or products to be supplied by the Client and all similar supplies by the Client which compel the Supplier to carry out more work or incur more costs than the Supplier could reasonably have expected at the time of entering into the contract shall constitute grounds for increasing the agreed price. Extraordinary or reasonably unforeseeable processing difficulties arising from the nature of the materials and products to be processed shall also be grounds for increasing the agreed price.
3. The supplier shall be entitled to increase the agreed price if the principal makes changes to the originally agreed specifications, including author's corrections or changed instructions after receiving working drawings, models and typesetting, printing and other proofs. The supplier shall cooperate with these changes within reasonable limits, if the contents of the performance to be performed by him at least do not essentially deviate from the originally agreed performance.
Article 7: Payment term
1. Unless otherwise agreed, the client shall pay the price and the other amounts due pursuant to the contract within 30 days of the invoice date, without being able to invoke any discount, set-off or suspension. However, payment must be made in the manner indicated by the supplier if the client is a natural person not acting in the exercise of a profession or business. If payment is not made in time, the principal shall be in default without notice of default being required by the supplier.
2. In the event of an agreed delivery in parts, the supplier shall be entitled to demand payment of the costs incurred for the entire delivery, such as those of typesetting, lithos and proofs, in addition to the payment of this part.
3. The principal shall at all times and irrespective of the agreed payment conditions be obliged at the supplier's first request to make full or partial advance payment and/or to provide security for the payment of the amounts to be paid to the supplier pursuant to the contract. The security offered must be such that the claim with any interest and costs falling thereon is adequately covered and that the supplier will be able to recover it without difficulty. Any security that subsequently becomes inadequate shall be supplemented to an adequate security at the supplier's first request. If and as long as the principal remains in default of full or partial advance payment and/or security required by the supplier, the supplier shall be entitled to suspend his obligation to deliver.
4. If the principal fails to pay in time as referred to in paragraph 1 of this article, he shall, on account of the delay in paying the amount due by him, owe the statutory commercial interest or, if applicable, the statutory interest on this amount from the 31st day after the invoice date. The supplier shall be entitled to charge one-twelfth part of this interest for each month or part of a month in which the principal has not fulfilled his obligation to pay in full.
5. In the event of late payment as referred to in paragraph 1 of this article, the principal shall, in addition to the amount owed and the interest thereon, be obliged to pay in full both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs and collection agencies. The extrajudicial costs are set at a minimum of 15% of the principal amount with interest, with a minimum of € 100,00, without prejudice to the authority of the supplier to claim the actual extrajudicial costs if these are more. In case the principal is a consumer, the supplier shall, in respect of the extrajudicial costs, claim an amount equal to the maximum compensation allowed by law in respect of extrajudicial collection costs, as stipulated in and calculated in accordance with the Besluit vergoeding voor buitengerechtelijke incassokosten (Extrajudicial Collection Costs Compensation Decree), insofar as the outstanding amount - after the default has occurred - is not yet paid by the principal-consumer after a demand for payment within fourteen days from the day following the date of the demand.
6. If the client is in default of payment of any invoice as referred to in paragraph 1 of this article, all other outstanding invoices shall also be immediately due and payable, without further notice of default being required.
7. Payments made by the client shall respectively serve to settle costs due, interest and subsequently due and payable invoices that have been outstanding the longest, even if the client states at the time of payment that the payment relates to another invoice.
8. Without prejudice to provisions of mandatory law, the principal shall not be entitled to suspend his payment obligations to the supplier and/or to set them off against payment obligations of the supplier to the principal.
9. The supplier shall be entitled to set off all claims against the principal against any debt that the supplier may have to the principal, or to persons or legal entities affiliated with the principal.
10. All claims of the supplier against the principal shall be immediately due and payable in the following cases:
a) if after the conclusion of the agreement circumstances come to the knowledge of the supplier that give him good reason to fear that the principal will not comply with his obligations, all this at the discretion of the supplier;
b) if the supplier has asked the principal to provide security for the performance referred to in paragraph 3 of this article and such security is not provided or is inadequate;
c) in the event of the principal applying for bankruptcy or suspension of payment, liquidation or death or bankruptcy of the principal or - insofar as the principal is a natural person - the Dutch Natural Persons Debt Rescheduling Act (Wet Schuldsanering Natuurlijke Personen - WSNP) becoming applicable to the principal.
Article 8: Method of delivery; retention of title
1. Unless otherwise agreed, delivery shall be made at the place where the supplier conducts his business. Digital deliveries shall be made to the e-mail address specified by the principal for that purpose, or (at the principal's risk) by uploading to an external server, or by making available on the server of (an assistant of) the supplier.
2. The supplier shall not be obliged to deliver the (manufactured) goods and/or services to be delivered in parts.
3. The principal shall be obliged to cooperate fully with the delivery of the goods or services to be supplied by the supplier pursuant to the contract. The principal shall be in default even without a reminder to do so, if he fails to collect the goods to be delivered from the supplier upon the latter's first request or, if applicable, refuses to take delivery of the goods to be delivered.
4. Each delivery of goods by the supplier to the principal shall take place subject to retention of title until such time as the principal has paid all that he is obliged to pay pursuant to any contract, including interest and costs. Until that time, the principal shall be obliged to keep the goods delivered by the supplier separate from other goods and clearly identified as the
property of the supplier and to properly insure them and keep them insured.
5. In the event of delivery of goods to the principal in a territory other than the Netherlands, a retention of title as set out in paragraph 4 above under the law of the country concerned shall also apply to the goods concerned - if and as soon as they are in the territory of the country concerned - in addition to the retention of title under Dutch law as set out in paragraph 4 above, on the understanding that Dutch law shall otherwise exclusively apply to the contract.
6. As long as goods delivered are subject to retention of title, the client may not encumber or alienate them outside the scope of its normal business operations.
7. After the supplier has invoked his retention of title, he may recover the delivered goods. The principal shall allow the supplier to enter the place where the goods are located.
8. If transport of the goods to be delivered has been agreed, this shall take place at the principal's expense Costs relating to transport shall at least include export and import duties, clearance charges, taxes and any other government charges of whatever nature connected with the transport and delivery of the goods by the supplier. Unless otherwise agreed in writing between the parties.
9. The risk for the goods to be delivered to the principal shall pass to him ex the warehouse of the supplier, or the warehouse of a third party engaged by the supplier, unless expressly agreed otherwise in the contract. All goods shall at all times be transported at the principal's risk. Unless the principal promptly requests the supplier to insure the goods during transport at the principal's expense (and/or it has been stipulated otherwise in the agreement), the goods shall be transported by or on behalf of the supplier uninsured. Transport shall also include transmission of data by any technical means.
10. The supplier shall have fulfilled his obligation to deliver by making the goods available to the principal at his warehouse, or the warehouse of a third party engaged by the supplier, at the agreed time. The carrier's delivery document and/or accompanying appendices signed by or on behalf of the Commissioning Party shall constitute full proof of the delivery by the Supplier of the goods specified in the delivery document and/or accompanying appendices. The acceptance of goods from the supplier by the transporter shall be evidence that they were in externally good condition, unless the contrary appears from the waybill or the receipt.
11. The supplier shall not be obliged to store the goods to be delivered, unless the parties agree otherwise in writing. If the principal refuses to accept the goods offered or made available for delivery, the supplier shall however store the relevant goods at a location to be determined by him for a period of 14 days from the date of the offer. Upon expiry of this period, the supplier shall no longer be obliged to keep the items ordered by the principal at the principal's disposal and shall be entitled to sell the items to a third party or otherwise dispose of them. The principal shall nevertheless remain obliged to comply with the agreement by taking delivery of the relevant goods at the supplier's first request at the agreed price, while the principal shall also be obliged to compensate the supplier for the damage resulting from the principal's previous refusal to take delivery of the relevant goods, including storage and transport costs.
Article 9: Term of delivery
1. A term of delivery stated by the supplier shall, unless it is expressly stated in writing that it concerns a deadline, only be indicative in nature. Even in the event of an agreed final deadline, the supplier shall not be in default until the principal has given him written notice of default. Exceeding the agreed deadline for delivery shall under no circumstances entitle the Client to compensation for damages. Neither shall the principal be entitled to compensation in the event of dissolution of the agreement, unless the exceeding of the reasonable period set in the notice of default is the result of intent or gross negligence on the part of the supplier.
2. The supplier's obligation to meet an agreed latest delivery date shall lapse if the principal desires a change in the specifications of the work, the item or the product or the service or fails to comply with the provisions of paragraph 1 of article 11 of these terms and conditions, unless the minor significance of the change or the minor delay does not reasonably require the supplier to change the production capacity initially planned by him in time.
3. During the execution of the contract by the supplier, the principal shall be obliged to do everything that is reasonably necessary or desirable to make a timely delivery by the supplier possible, in particular by answering the supplier's questions without delay, by preventing faulty deliveries as referred to in paragraph 2 of article 6 and by observing the provisions of paragraph 1 of article 11 and paragraphs 1 and 2 of article 17 of these delivery terms and conditions.
4. If the principal fails to comply with the provisions of the previous paragraph of this article and paragraph 3 of article 7, an agreed deadline for delivery shall no longer be binding and the principal shall be in default without written notice of default by the supplier being necessary. The supplier shall then, without prejudice to its rights under the law, be authorized to suspend the fulfillment of the agreement until the principal has rectified this default. Thereafter, the supplier shall still perform the contract within a reasonable period of time.
5. Even if there is a suspension of obligations by the supplier on account of a shortcoming on the part of the principal other than that referred to above in paragraph 4, the term of delivery shall be extended by the duration of the suspension.
Article 10: Examination upon delivery
1. The principal shall be obliged to examine with due haste after delivery whether the supplier has properly fulfilled the contract and shall furthermore be obliged to inform the supplier forthwith in writing, whether or not by digital means, as soon as the contrary appears to him. The principal shall make this examination and the relevant notification within 14 days after delivery at the latest.
2. The supplier shall always be entitled to substitute a new sound performance for a previous defective performance, unless the default cannot be remedied.
3. The performance of the contract shall be deemed between the parties to be sound if the principal has failed to make the examination or notification referred to in paragraph 1 of this article in time.
4. If the period of 14 days referred to in paragraph 1 of this article must, according to standards of reasonableness and fairness, be considered unacceptably short even for a careful and alert principal, this period shall be extended until no later than the first moment when the examination or notification of the supplier is reasonably possible for the principal.
5. The performance of the supplier shall in any case be considered as sound between the parties if the principal has put the goods delivered or a part thereof to use, has treated or processed them, has delivered them to third parties or has had them put to use, has had them treated or processed or has had them delivered to third parties.
6. Without prejudice to provisions of mandatory law, complaints of any nature whatsoever regarding the execution by the supplier of the contract or the sound performance thereof by the supplier shall not suspend the principal's payment obligation. Complaints of any nature whatsoever can only be brought to the supplier's attention in writing.
7. Without prejudice to provisions of mandatory law, the supplier shall not be under any obligation with regard to a claim submitted if the principal has not met all his obligations towards the supplier (both financial and otherwise) in time and in full.
8. A claim concerning a good and/or work and/or services provided by the supplier cannot affect goods and/or work and/or services previously provided or yet to be provided, not even if these goods and/or work and/or services to be provided have been or will be provided in execution of the same agreement.
9. If items are missing on delivery, the client must report this to the supplier in writing within 7 days of delivery. In the event of a report after this period has expired, the missing goods shall not be credited to the principal, nor shall the goods be delivered to the principal free of charge.
Article 11: Typesetting, printing or other proofs
1. The principal shall be obliged to carefully examine the typesetting, printing or other proofs that he has received from the supplier, whether or not at his request, for errors and defects and to return them to the supplier corrected or approved without delay.
2. Approval of the proofs by the principal shall be deemed to be recognition that the supplier has correctly carried out the work preceding the proofs.
3. The supplier shall not be liable for deviations, errors and defects that went unnoticed in proofs approved or corrected by the principal.
4. Each proof produced at the principal's request shall be charged in addition to the agreed price, unless it has been expressly agreed that the costs of such proofs are included in the price.
Article 12: Deviations
1. Deviations between, on the one hand, the delivered work or goods delivered/manufactured or activities/services performed and, on the other hand, the original design, drawing, copy or model or the typesetting, printing or other proof, respectively, cannot constitute grounds for rejection, discount, dissolution of the agreement or compensation for damages, if they are of minor importance.
2. In an assessment of the question whether or not deviations in the total of the work c.q. the delivered/manufactured items c.q. the performed activities/services are to be considered minor, a representative sample will be taken into account, unless it concerns individually determined items c.q. activities/services.
3. Deviations which, taking all circumstances into account, do not reasonably have any or a minor influence on the use value of the work c.q. the delivered/manufactured items c.q. the performed activities/services, are always considered to be deviations of minor importance.
4. The Client takes into account the fact that colors of printed matter and layout files, as shown in (digitally) produced proofs or as shown on a screen, will deviate to a certain extent from the color of the printed matter after production. Also such deviations cannot constitute grounds for rejection, discount, dissolution of the agreement or compensation for damages.
5. Unless expressly agreed otherwise in writing, more or less deliveries in relation to the agreed number shall be permitted if they do not exceed or fall below the following percentages:
- circulation up to 20,000 units: 10%
- circulation of 20,000 units and more: 5%.
However, with regard to excess or short deliveries of packaging printwork, labels and continuous forms, a percentage of 10% shall always be permitted. The more or less quantity delivered shall be charged or deducted.
6. With regard to the quality and grammage of paper and cardboard, deviations allowed under the tolerance standards stated in the General Delivery Terms and Conditions of the Association of Paper Wholesalers shall be considered minor deviations. The relevant conditions shall be available for inspection at the supplier's office. The supplier shall send the principal a copy of these terms and conditions free of charge at the principal's request.
7. Deviations in the other materials and semi-manufactured products used by the supplier that are allowed under the general terms and conditions of sale applying to the delivery of such materials and semi-manufactured products to the supplier shall be considered as deviations of minor importance. The relevant terms and conditions shall be available for inspection at the supplier's premises. The supplier shall send the principal a copy of these terms and conditions free of charge upon request.
Article 13: Contracts of duration; periodic expenses
1. A contract for the production of periodicals shall, unless expressly agreed otherwise in writing, be for an indefinite period of time and may only be terminated by giving notice while observing the notice period referred to in paragraph 2, unless the client pays a one-time termination fee amounting to 50% of the total amount charged by the supplier for the production of the periodicals over the entire preceding year.
2. The notice period shall be one year if it concerns a periodical that appears four times a year or more and 6 months if it concerns a periodical that appears less frequently.
3. A periodical publication as referred to in paragraph 1 of this article means a publication that appears at least twice a year.
4. The production within the meaning of paragraph 1 of this article shall also be understood to mean the production of semimanufactured products or auxiliaries such as separate quires, litho work and typesetting as well as work related to the finishing and distribution of the publication.
5. A contract as referred to in this article may only be terminated by means of a letter sent by registered mail or with confirmation of receipt, or by bailiff's writ.
6. The provisions of this article may only be deviated from by written agreement.
7. Paragraphs 1, 5 and 6 of this article shall apply mutatis mutandis to agreements for the provision of services or the performance of work, on the understanding that the notice period in those cases shall be 6 months as standard.
Article 14: Intellectual property, etc.
1. The principal guarantees the supplier that the principal is the rightful claimant with regard to all items received from or on behalf of the principal within the scope of the contract in whatever form, such as copy, typesetting, models, drawings, photographs, images, lithographs, films, videos, data carriers, software, data, source codes, object codes, samples, designs, sketches, processes, procedures, reports, articles, correspondence, documents, etc. and no infringement is made on the (intellectual property) rights of third parties, including the rights that third parties can assert on the basis of an agreement or applicable laws and regulations. The client indemnifies the supplier both in and out of court against all claims that third parties may assert on that basis.
2. If the supplier reasonably doubts whether the principal is the person entitled as referred to in paragraph 1 of this article, the supplier shall be entitled to suspend the performance of the contract until such time as it is unambiguously established that the principal is the person entitled. Thereafter, the supplier shall still perform the agreement within a reasonable period of time.
3. Unless expressly agreed otherwise in writing, the supplier shall always be the party entitled to the intellectual property rights that arise on the items produced, services rendered and work carried out by him in the performance of the contract.
4. The goods supplied by the supplier within the scope of the contract, such as copy, manuscripts, type, design drawings, models, working and detail drawings, data carriers, software, websites, data files, equipment, photographic recordings, lithographs, films and similar production and auxiliary materials, as well as any part thereof forming an essential part of the design, may not be reproduced within the framework of any production process without the supplier's written consent, even if or insofar as there is no copyright or other legal protection for the supplier in respect of the design in question.
5. After delivery by the supplier, the principal shall acquire the non-exclusive, non-transferable right to use the goods produced, services rendered and work carried out by the supplier within the scope of the contract, under the suspensive condition that the principal has fulfilled his financial obligations arising from the contract in full. This right of use shall be limited to the right of normal use of the delivered goods in the context of the exploitation of the principal's business and the principal shall not otherwise reproduce or disclose these goods without the prior written consent of the supplier.
6. The right granted to the client on the basis of this article shall not affect the right or the ability of the supplier to use and/or exploit the components, general principles, ideas, designs, algorithms, documentation, programming languages, protocols, standards, know-how and the like underlying that development for other purposes without any restrictions. Nor shall the right of Supplier to make developments similar and/or derived from those made or to be made for the benefit of the Client be affected.
7. Even if the Agreement does not expressly provide for this, the Supplier shall always be permitted to make technical provisions to protect equipment, data files, websites, software made available, software to which access is provided to the Client.
Article 15: Ownership of means of production, etc.
1. All goods produced by the supplier such as means of production, semi-finished products and aids and in particular typesetting, design drawings, models, working and detail drawings, data carriers, computer software, data files, photographic recordings, lithos, clichés films, micro- and macromontages, printing plates, screen printing forms, rotogravure cylinders, stereotypes, die-cutting knives and forms, (foil) embossing forms, stamping plates and peripheral equipment, remain the property of the supplier, even if they are listed as a separate item in the offer or on the invoice.
2. The supplier shall not be obliged to hand over or otherwise transfer the items referred to in paragraph 1 to the principal.
3. The supplier shall not be obliged to keep the items referred to in paragraph 1 of this article for the principal. If the supplier and the principal agree that these things shall be kept by the supplier, this shall be for a period of no more than one year and without the supplier guaranteeing their suitability for repeated use.
Article 16: Ownership of client, lien
1. The supplier shall keep the things entrusted to him by the principal in the performance of the contract with the care of a good custodian.
2. Without prejudice to the provisions of the preceding paragraph of this article, the principal shall bear all risks in respect of the things referred to in paragraph 1 during custody.
If desired, the principal shall take out his own insurance for this risk.
3. Before delivering copy, a drawing, design, photographic recording or information carrier to the supplier, the principal shall ensure that a duplicate is made of these items. The principal shall keep these in case the items handed over are lost or become unusable due to damage during storage by the supplier. In that case, the principal shall provide the supplier with a new copy upon request against payment of material costs.
4. 4. The principal grants the supplier a lien on all things that are brought within the power of the supplier within the scope of the performance of the contract with the supplier, as well as on all other things that are the property of the principal and are brought within the power of the supplier by him, and also on delivered goods in respect of which the supplier cannot invoke his retention of title because the delivered goods have been mixed all this by way of extra security for all that the principal may owe to the supplier in whatever capacity and on whatever account, including non-exigible and contingent debts.
Article 17: Materials, products, specifications and information provided by the client
1. If the principal has agreed with the supplier that the principal shall deliver materials, (electronic) data or products for printing or processing, he shall ensure that this delivery takes place in a manner that may be considered timely and sound for the purposes of a normal, planned production. The principal shall receive instructions to this effect from the supplier.
2. In addition to the material or products required for the agreed performance, the principal shall be obliged to deliver a reasonable quantity for proofs, samples, etc. for the processing concerned. The principal shall receive the supplier's specification for this purpose. The principal guarantees that the supplier will receive a sufficient quantity. Confirmation of receipt of the material or products by the supplier shall not imply acknowledgement that a sufficient or the quantity stated on the transport documents has been received.
3. The principal shall bear the risk of misunderstandings with regard to the contents and performance of the contract if such misunderstandings are caused by specifications or other communications not received orally or by a person designated by the principal for that purpose or transmitted by any technical means such as the telephone, fax or e-mail, or which have not been received by the supplier correctly, on time or in full.
4. The supplier shall not be obliged to examine the goods received from the principal for suitability prior to printing or processing.
5. The supplier cannot be held liable for shortcomings in the performance of the contract where such shortcomings are the result of exceptional processing difficulties or processing difficulties that are unforeseeable in all reasonableness for the supplier arising from the nature of the materials, (electronic) data or products supplied by the principal or where such shortcomings are the result of discrepancies between the sample or example initially shown to the supplier and the materials, (electronic) data or products supplied subsequently by the principal.
6. The supplier shall not guarantee properties such as durability, adhesion, gloss, color, lightfastness or colorfastness or resistance to wear and tear if the principal has not stated the properties and nature of the materials or products supplied by him at the latest at the time of concluding the contract and/or has not provided sound information about the pretreatment and/or surface treatments applied.
7. Unless expressly agreed otherwise, the supplier cannot be held liable for any loosening, sticking, blemishes, change of gloss or color, nor for any damage to materials and products received from the client and to be printed or processed by him if they have undergone pretreatment such as by the application of lacquer, varnish or anti-smear powder.
8. The principal shall be obliged to inform the supplier in writing in advance of any special difficulties or health risks during the printing or processing of the materials and products supplied by him.
9. The supplier shall be entitled to dispose of the remnants such as cutting waste etc. of the materials and products supplied by the principal as if they were his property. At the supplier's request, the principal shall be obliged to collect the unused materials and products as well as the aforesaid residues from the supplier within the term set by the supplier.
Article 18: Force majeure
1. Shortcomings of the supplier in the fulfillment of the agreement cannot be attributed to him if they are not due to his fault, nor are they for his account by virtue of the law, the agreement or generally accepted practice (force majeure).
2. Force majeure as referred to in paragraph 1 of this article includes in any case - therefore not exclusively - a shortcoming as a result of war, mobilization, riots, flooding, closed shipping, other obstructions in transport, stagnation in, respectively restriction or discontinuation of the supply by public utility companies, lack of gas petroleum products or other means for generating energy, fire, breakdown of machinery and other accidents, excessive absenteeism of personnel, strikes, lockouts, actions of trade unions, export restrictions, other government measures, non-delivery of necessary materials and semi-finished products by third parties, sabotage, intent or gross negligence of auxiliary persons and other similar circumstances.
3. In case of force majeure, the supplier shall have the choice either to suspend the execution of the agreement until the force majeure situation has ceased to exist, or to terminate the agreement in whole or in part, whether or not after initially opting for suspension. In either case, the client is not entitled to any compensation. If the period in which fulfilment of the obligations by the supplier is impossible due to the force majeure lasts longer than thirty (30) days, the principal shall also be entitled to dissolve the agreement in part (for the future), on the understanding that, in accordance with paragraph 4 of this article, the supplier shall be entitled to send an invoice for the goods already delivered or work/services already performed. In case of partial dissolution, there is no obligation to compensate the damage (if any).
4. If the supplier has already partially fulfilled his obligations when the force majeure occurs or can only partially fulfil his obligations, he shall be entitled to invoice that part separately and the client shall be obliged to pay this invoice as if it were a separate agreement.
Article 19: Liability
1. The supplier shall be liable for damage which the principal suffers and which is the result of a shortcoming in the performance of the contract attributable to the supplier. However, only those losses shall qualify for compensation for which the supplier is insured, or should reasonably have been insured - given the nature of the supplier's business and the market in which he operates - and only up to the amount paid out by the insurer where appropriate.
2. Not eligible for compensation are:
(a) financial loss, such as - but not limited to - trading loss, consequential loss, loss due to delay, loss of profit, loss of turnover, missed savings, reduced goodwill, reputational damage, damage relating to costs in connection with interruption or stoppage of (part of) the client's business and/or other indirect damage;
b) damage caused by acts or omissions of the principal and/or third parties in violation of instructions issued by the supplier or in violation of the agreement and/or these terms of delivery;
c) damage resulting directly from incorrect, incomplete and/or unsound information provided to the supplier by or on behalf of the principal;
(d) damage as a result of or in connection with cybercrime committed against the supplier (computer crime) or, as the case may be, cybercrime of which the supplier is the victim. cybercrime of which the supplier has been the victim, if the supplier is liable for this damage, which damage includes but is not limited to damage resulting from or in connection with: breaking into a computerized work (computer hacking) (article 138ab Penal Code), hindering access to or use of a computerized work (article 138b Penal Code), destroying, damaging or rendering unusable any computerized work or any work for telecommunications, causing a disturbance in the passage or in the operation of such work or thwarting a security measure taken with respect to such work (articles 161sexies and 161septies Penal Code), as well as unlawfully altering, deleting, rendering unusable or inaccessible data or adding other data to it and/or making available or disseminating data intended to cause damage to a computerized work (by self-replication (computer viruses) (Article 350a Penal Code).
(a) it is not possible for the supplier at the time of entering into the contract to take out insurance as referred to in paragraph 1 of this article or to renew it thereafter on reasonable terms;
b) the insurer does not proceed to pay the damage in question;
c) the damage concerned is not covered by the insurance, the compensation for the damage shall be limited to the amount agreed by the Supplier with the Client for the (present) contract (excluding VAT).
4. The supplier shall not be liable for damage of whatever nature arising because or after the principal has put the (manufactured) goods into use after delivery, has treated or processed them, has delivered them to third parties, or has had them put into use, has had them treated or processed, or has had them delivered to third parties, respectively.
5. Neither shall the supplier be liable for damage to materials or products received from the principal which are to be printed, processed or treated by the supplier, if the principal has failed to inform the supplier as to the characteristics and nature of such materials or products and has failed to provide sound information as to the pretreatment and surface treatments applied, at the latest at the time of concluding the contract.
6. If the supplier is held liable by a third party in respect of any damage for which he is not liable under the contract with the principal or the present terms and conditions of delivery or otherwise towards the principal, the principal shall hold him fully harmless in this respect and reimburse the supplier in full for all that he is required to pay to such third party.
Article 20: Security
1. If the Supplier is obliged under the Agreement to provide some form of information security, such security shall conform to the specifications on security agreed upon between the Parties in writing. The Supplier does not warrant that the information security will be effective under all circumstances. In the absence of an expressly defined method of security in the Agreement, the security shall meet a level that is not unreasonable in view of the state of the art, the sensitivity of the data and the costs associated with providing security.
2. The access or identification codes and certificates provided by or on behalf of the supplier to the client are confidential and shall be treated as such by the client and shall only be made known to authorized staff members of the client's own organization. The supplier shall be entitled to change assigned access or identification codes and certificates.
3. Client shall adequately secure its systems and infrastructure, update them in a timely manner and have anti-virus software in operation at all times.
Article 21: Processing of personal data
1. If the Supplier processes or has processed personal data (as referred to in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the "AVG")), the Supplier shall comply with the applicable laws and regulations, including but not limited to the AVG, with respect to the processing of such data. The Supplier shall in that case be considered a processor as referred to in the AVG and as such shall comply with its obligations under the AVG. In that case, a processor's agreement within the meaning of the AVG shall be concluded between the supplier and the client, in which the agreements between the parties shall be recorded.
2. With regard to the processing of the personal data referred to in paragraph 1 of this article, the client shall be obliged to comply with the applicable laws and regulations, including but not limited to the AVG. In that case, the client shall be regarded as a controller and/or processor as referred to in the AVG. The client shall be fully responsible and liable for the fulfillment of its obligations arising from the aforementioned laws and regulations, including but not limited to the AVG, in its capacity as a controller and/or processor.
3. In the event of processing of the personal data referred to in paragraph 1 of this article, the client guarantees that the processing of personal data is not unlawful and does not infringe the rights of the data subjects concerned. The client indemnifies the supplier against any claims by data subjects or third parties as a result of the client's failure to comply with applicable laws and regulations, including but not limited to the AVG. The supplier shall only be liable for the damage caused by the processing of the personal data carried out by it, if the processing did not comply with the obligations of the AVG specifically addressed to the supplier as processor or outside or contrary to the lawful instructions of the client.
Article 22: Confidentiality
1. Both parties are obliged to keep confidential all confidential information that they have obtained from each other or from other sources in the context of the agreement. Information is considered confidential if it has been communicated by a party or if it arises from the nature of the information.
2. If, on the basis of a statutory provision or a judicial decision, the supplier is obliged to provide confidential information to third parties designated by law or by the competent court, and the supplier cannot in this respect invoke a right to refuse to give evidence, recognized or permitted by law or by the competent court, then the supplier shall not be obliged to pay compensation or indemnification and the client shall not be entitled to dissolve the agreement, without prejudice to provisions of mandatory law.
Article 23: Due dates
1. Without prejudice to provisions of mandatory law, legal claims and other powers of the principal, on whatever account, against the supplier in connection with goods manufactured/delivered and/or work/services performed shall lapse after twelve (12) months from the date on which the principal became aware or could reasonably have become aware of the existence of these rights and powers and he has not filed a written claim with the supplier before the expiry of this period.
2. If a written claim has been filed by the principal with the supplier within the period referred to in paragraph 1 of this article in connection with goods manufactured and/or work/services performed by the supplier, without prejudice to provisions of mandatory law, all legal claims of the principal in this respect shall lapse if the supplier has not been brought before the court having jurisdiction pursuant to Article 25 of the Terms and Conditions of Delivery within a period of four (4) months after receiving the claim in question.
Article 24: Dissolution
1. In the event that the principal fails to meet one or more of his obligations under the contract or fails to meet them in part, the principal shall be in default by operation of law and the supplier shall have the right unilaterally to terminate the contract in full or in part by means of a written notification to the principal and/or to suspend his obligations under the contract, without the supplier being obliged to pay any compensation for damages and without prejudice to any rights to which the supplier is entitled, including the right to full compensation for damages. All claims which the supplier may in these cases have or obtain against the principal (including but not limited to amounts which the supplier has invoiced before the termination of the agreement in connection with what he has already duly performed or delivered for performance) shall be immediately due and payable in full.
2. In case of:
- (the application for) bankruptcy of the client, (the application for) suspension of payment of the client, insofar as the client is a natural person: the application of the Natural Persons Debt Rescheduling Act (WSNP) to the client or his death; or
- attachment of a substantial part of the principal's assets or the situation that the principal must no longer be deemed able to meet the obligations arising from the agreement; or
- closing down, liquidation or full or partial takeover, direct or indirect change of control or any comparable situation of the principal's company; or
- cessation of the principal's business;
the principal shall be in default by operation of law and the supplier shall be entitled to unilaterally terminate all or part of the contract by written notice without further notice of default and without judicial intervention, without the supplier being obliged to pay any compensation for damages and without prejudice to his further rights, including the supplier's right to full compensation for damages.
3. In the event that the principal has irrevocably entered into a state of bankruptcy, the right to use the software, websites and the like made available, as well as the use of the services of the supplier, shall terminate to the extent applicable, without the need for a termination act.
Article 25: Applicable law
1. The contract between the supplier and the principal shall be governed by Dutch law.
2. The Dutch court shall be competent to take cognizance of all disputes arising from or connected with the performance of the contract between the supplier and the principal. The competent court shall be the court of the district to which the supplier belongs, unless the principal is a consumer and opts for the dispute to be settled by the court that is competent by law within one month of the supplier invoking this clause in writing to the principal.