General terms and conditions
General Terms and Conditions of the private company EXPOSURE SYSTEMS NEDERLAND B.V. established in (6673DE) Andelst, at Industrieweg 10, hereinafter referred to as: Exposure Systems.
1.1 These General Conditions apply to all Exposure Systems' offers and quotes, and all agreements and legal relations with Exposure Systems. In these General Conditions, Exposure Systems' other party shall be referred to as: the customer.
1.2 Exposure Systems expressly rejects the applicability of any general conditions of the customer.
2 Offers and conclusion of agreements
2.1 Offers and quotations from Exposure Systems are without obligation unless the offer or quotation explicitly states otherwise.
2.2 Illustrations, drawings, descriptions, dimensional and weight specifications, prices or other indications provided by Exposure Systems shall not be binding upon Exposure Systems. They are approximate only.
2.3 An agreement shall not come into being until a manager of Exposure Systems or an authorized representative has confirmed the order or assignment placed by the client in writing, or until the client has signed the Exposure Systems offer or bid when it purports to serve as a written record of the agreements made with the client. In the event that the parties fail to do so, but the client agrees to Exposure Systems' commencement of the performance of the order, the contents of the offer or quotation shall be deemed to have been agreed upon between the parties.
2.4 Additional work or less work will not be binding on Exposure Systems until such has been confirmed in writing by Exposure Systems.
3 Prices and security
3.1 All offered and agreed prices are exclusive of VAT, packaging and shipping costs and/or other taxes, charges or duties imposed on the goods as such, unless explicitly stated otherwise in the offer or quotation or order confirmation.
3.2 Exposure Systems is entitled to increase the prices quoted prior to or upon conclusion of the agreement in the event of subsequent changes in cost price determining factors, taking the changed amounts into account.
3.3 If the prices have not been determined prior to or upon conclusion of the agreement, the prices payable by the customer shall be the prices specified in Exposure Systems' price lists that apply on the day of delivery or the day on which the work or service is completed.
3.4 Exposure Systems is entitled to require the customer to provide sufficient security or additional security to meet its payment obligation, and to suspend deliveries until the customer has provided sufficient security for payment. Exposure Systems shall not be liable for any damage suffered by the client due to this delay.
4 Execution of the agreement, delivery, deviations and soundness
4.1 Exposure Systems is obliged to execute the order to the best of its ability and with due care for the purpose specified by the client. Exposure Systems is entitled to have a third party perform the work (in part). Exposure Systems shall not be held liable for texts (linguistic or otherwise) and visual material provided by the client or a third party engaged by Exposure Systems, nor for the reliability of the digital files/data carriers used. The customer must ensure that any necessary permits are granted and that all other legal or other requirements are met.
4.2 The Customer is obliged to carefully check the (pressure) proofs made available by Exposure Systems for errors and faults and to provide Exposure Systems with its assessment. Approval of the proofs or failure to do so in a timely manner shall constitute recognition that Exposure Systems has performed the proofs and related work in accordance with the order.
4.3 Exposure Systems will endeavour to complete the order within the specified time frame, but is not obliged to do so. A specified delivery date is always a target date and is indicative only, unless expressly agreed otherwise.
4.4 Exceeding a delivery time does not entitle the client to compensation, to suspension or non-fulfilment of its obligations or to dissolution of the commission contract.
4.5 Exposure Systems is entitled to deliver an order in its entirety or successively in parts. In the latter case, Exposure Systems is entitled to charge the client for each partial delivery separately and demand payment for it. If and as long as a partial delivery is not paid for by the client and/or the client fails to comply with other obligations arising from the agreement in question or previous agreements, Exposure Systems is entitled to dissolve the agreement(s) insofar as they have not yet been fulfilled, without judicial intervention and without any notice of default being required from the client, retaining Exposure Systems' right to claim compensation and without the client being able to exercise any right to compensation or otherwise.
4.6 The date of delivery shall be deemed to be the day of dispatch of the goods or the day of notification as referred to in paragraph 8 of this article.
4.7 In the event that it has been agreed that Exposure Systems will transport the goods, Exposure Systems will deliver the goods to the address known to Exposure Systems or send them for delivery to the customer. Goods travel at the risk and expense of the client even when transport is ordered by or on behalf of Exposure Systems. Unless the client timely requests Exposure Systems to insure the goods during transport on behalf of the client, the goods will travel uninsured. After arrival of the means of transport, the client is obliged to unload the goods as soon as possible.
4.8 In the event it has not been agreed that Exposure Systems will deliver the goods, the customer is obliged to pick up the goods from Exposure Systems' premises in Aalten, Exposure Systems' designated distribution centre or Exposure Systems' designated factory within two days of being notified that the goods are ready for pick-up.
4.9 If the customer fails to receive or pick up the goods at the times specified in paragraphs 7 or 8, the customer is already in breach. Exposure Systems then has the right to store the goods or have them stored at the expense and risk of the customer. The client is obliged to compensate Exposure Systems for storage costs according to Exposure Systems' usual rates or the rates charged to Exposure Systems. The client is not authorized to refuse payment for these goods due to the fact that delivery has not yet taken place.
4.10 More or less deliveries compared to the agreed quantity are allowed if they do not exceed the following percentages: - circulation up to 5,000 units:10% - circulation of 5,000 and more:5%.
4.11 Deviations between, on the one hand, the work supplied and, on the other hand, the original design, drawing, copy or model and the typesetting, printing or other proofs respectively, cannot constitute a reason for rejection, discount, dissolution of the agreement or compensation for damages, if they are of minor importance.
4.12 The Principal shall be obliged, upon or immediately following delivery, to check whether the goods delivered comply with the Agreement and, in particular, to examine their soundness, condition and completeness.
4.13 In the absence of a written claim about the delivered quantity within 48 hours of delivery, the quantities specified on the waybills, delivery notes or similar documents shall be deemed to be correct. If the client discovers defects and/or shortcomings during the examination and inspection referred to in paragraph 8, he must notify Exposure Systems in writing of these within eight days of delivery at the latest. Failure to do so will void any claims Exposure Systems may have for such deficiencies.
4.14 The provisions of this article also apply to orders that include the assembly, disassembly or transport of goods.
5 Transfer of ownership, retention of title, risk and rights of pledge
5.1 Subject to the provisions of paragraph 3 of this article, ownership of the goods shall pass to the principal at the time of delivery referred to in article 4.
5.2 Notwithstanding the foregoing, the goods are at the risk of the customer from the moment they leave Exposure Systems' premises in Aalten, Exposure Systems' designated distribution centre or the factory.
5.3 a. Exposure Systems shall retain ownership of all goods it delivers to the customer until the purchase price for all these goods has been paid in full. If, under these agreements, Exposure Systems performs work for the benefit of the customer that is to be reimbursed by the customer, the above-mentioned retention of title shall apply until the customer has also satisfied Exposure Systems' claims in full. This reservation of ownership also applies to the claims Exposure Systems may obtain against the client due to the client's failure to fulfill one or more of its obligations towards Exposure Systems under the above agreement. b. As long as the ownership of the delivered goods has not been transferred to the client, the latter is not allowed to pledge them or grant any other right to them to a third party, except as stipulated in subsection f below. c. With respect to delivered goods that have become the property of the client through payment and are still in the hands of the client, Exposure Systems hereby reserves the right of pledge as referred to in article 3:237 BW as additional security for claims, other than those set forth in article 3:92 paragraph 2 BW, that Exposure Systems may have against the client for any reason whatsoever. Exposure Systems is at all times entitled and hereby irrevocably authorized by the client to perform the actions required to establish this reserved pledge (expressly including establishing the pledge by authentic or registered private deed) and act on behalf of the client in doing so. At Exposure Systems' request, the customer is obliged to immediately cooperate with this pledge. d. The customer is obliged to store the delivered goods under retention of title with due care and as the recognizable property of Exposure Systems. The customer is obliged to insure the goods against fire, explosion and water damage as well as theft for the duration of the retention of title and to make the policies of these insurances available for inspection by Exposure Systems upon first request. As soon as Exposure Systems indicates that it wishes to do so, the client shall pledge all of its claims against the insurers of the goods in the manner indicated in Article 3:239 of the Dutch Civil Code as additional security for the claims Exposure Systems has against the client. The last two sentences of paragraph 3c shall apply. e. In the event that the customer defaults on his payment obligations to Exposure Systems or Exposure Systems has good reason to fear that he may default on these obligations, Exposure Systems has the right to repossess the delivered goods under retention of title without any liability towards the customer. After recovery, the client shall be credited with the market value, which shall in no case exceed the original purchase price, minus the costs related to the recovery. f. The client is permitted to sell and transfer the delivered goods under retention of title to third parties in the normal course of its business. In case of sale on credit, the principal shall be obliged to stipulate a retention of title on the basis of the provisions of this article. g. The client undertakes not to assign or pledge to third parties any claims it may acquire against its clients without Exposure Systems' prior written consent. The client furthermore undertakes to pledge the said claims to Exposure Systems as soon as Exposure Systems expresses the desire to do so in the manner set forth in article 3:239 BW as additional security for its claims against the client on any account whatsoever. The last two sentences of paragraph 3c shall apply. h.In the event Exposure Systems' retention of title on delivered goods is cancelled due to accession or case-formation, the customer hereby establishes a non-possessory pledge on the accession or case-formation in favor of Exposure Systems to secure all that the customer may owe and shall owe Exposure Systems, regardless of the reason. The last two sentences of paragraph 3c shall apply.
5.4 All items, documents, securities and funds that Exposure Systems or a third party has in its possession on behalf of the Customer, for whatever reason and for whatever purpose, and all claims that the Customer has or will have on Exposure Systems, for whatever reason, shall constitute a pledge to Exposure Systems for all that it has or will have toward the Customer, for whatever reason. This pledge shall be deemed to have been established each time Exposure Systems or a third party acting on its behalf obtains possession of the goods, documents, securities, and funds in question or when the claims arise.
5.5 After completion of the order, Exposure Systems will not be required to retain any of the products associated with the order.
6 Moulds, shapes, semi-finished products, production tools, auxiliary tools etc.
6.1 All goods produced by Exposure Systems as part of the execution of the order, such as moulds, shapes, semi-finished products, production resources, auxiliary tools, etc., or produced in whole or in part based on Exposure Systems' instructions, for which the client has paid the agreed costs, remain the property of Exposure Systems, even if they are listed as a separate item on the offer, quote or invoice. Exposure Systems is not obliged to hand over or store these items to the client.
6.2 The manufacturing costs paid by the client should be considered as forming an integral part of the total costs involved in the order.
7 Quality and advertisements
7.1 Exposure Systems does not warrant that the goods sold, work performed and/or services rendered by Exposure Systems are suitable for the purpose for which the customer intends to use or utilize them, not even if that purpose has been made known to Exposure Systems, unless the contrary has been explicitly agreed between the parties.
7.2 The customer can no longer claim that what was delivered, delivered or performed does not comply with the agreement if he does not notify Exposure Systems in writing of this fact within eight days after he discovered or reasonably could have discovered it, and in any case after six months have passed since the delivery of the goods, the completion of the work or the completion of the services.
7.3 A claim regarding delivered goods, work performed or services rendered does not affect the Customer's obligations under previous or future deliveries or performances and does not entitle the Customer to suspend payment of Exposure Systems' claim.
8.1 The following are expressly excluded from any guarantee for goods delivered by Exposure Systems: normal wear and tear (including gradual discoloration, chalking and gloss reduction due to UV effects or weather conditions), any damage caused when or after the customer applies self-adhesive materials, damage caused by inexpert or careless use, damage caused after or as a result of changes made after delivery.
8.2 Only the manufacturer's warranty conditions apply to goods sold and delivered by Exposure Systems.
8.3 The following warranty conditions apply to all other goods sold and delivered by Exposure Systems: a. Exposure Systems only guarantees delivered new goods for a period of six months after the date of delivery. b. The warranty only covers the free replacement, repair, or reimbursement of the invoiced price - at the discretion of Exposure Systems - of the defective good or part where the defect is due to improper materials or construction. c. Warranty claims do not exist if the client or a third party does not assemble or install the Exposure Systems delivered good in accordance with Exposure Systems' manual or instructions, or, for that matter, incorrectly or improperly, or - in the case where a release of the Exposure Systems delivered good is required - if the client or third party does not show Exposure Systems the relevant release document. d. Warranty claims expire if 1. the customer does not notify Exposure Systems immediately upon discovery of the defect and does not allow Exposure Systems the opportunity to detect and correct the defect, in any case within eight days after a claim has been submitted to Exposure Systems; 2. the customer does not comply with Exposure Systems' request to send the defective good or part to Exposure Systems carriage paid; 3. The customer or third parties have -without Exposure Systems' prior knowledge and permission- performed work on the Exposure Systems delivered or edited item for which the warranty claim is made; 4. The malfunction is the result of improper use, insufficient maintenance, wear or damage; 5: - the application of any governmental regulation regarding the nature or quality of the materials used - materials or goods used in consultation with the client - materials, goods, methods and constructions, insofar as applied on the client's instructions, as well as materials and goods supplied by or on behalf of the client.
8.4 a. Exposure Systems warrants the soundness of the work it has performed for a period of six months from the date of completion of the work. b. The warranty only extends to the elimination free of charge of any shortcomings found within this period. c. No warranty is issued for emergency repairs or provisional repairs.
9 Force majeure
9.1 Force majeure shall exist on the part of Exposure Systems if Exposure Systems is prevented from fulfilling its obligations under the agreement or the preparation thereof due to war, threat of war, civil war, riots, terrorism, acts of war, fire, water damage, flooding, epidemics, strikes, sit-down strikes, lockouts, attachment, import and export obstructions, government measures, machine defects, disruptions in the supply of energy, lack of materials, raw materials and auxiliary materials, defects in means of transport and transport impediments, all in the company of Exposure Systems as well as its suppliers and those charged with storage or transport, and any other causes that may arise through no fault of Exposure Systems'.
9.2 An agreed delivery deadline or deadline for the performance of work or services will be extended by the period during which Exposure Systems is prevented from fulfilling its obligations or performs its obligations due to force majeure.
9.3 In the event that force majeure causes the delivery or performance of work or services to be delayed by more than twelve months, both Exposure Systems and the client have the right to rescind the agreement for the unperformed portion with due observance of the provisions of paragraph 4.
9.4 If the force majeure arises while the agreement has already been partly performed, the Principal shall keep the part of the goods already delivered or the part of the work/services already performed and accept them and pay the price due, unless the Principal demonstrates that the part of the goods already delivered or the work/services performed cannot or can no longer be used or exploited effectively by the Principal as a result of the failure to deliver the remaining goods or to perform the remaining work/services. In the latter case, if force majeure causes the remaining deliveries, work or services to be delayed by more than twelve months, the customer has the right to terminate the agreement for the part that has already been performed with the obligation to return to Exposure Systems what has already been delivered or performed at the customer's expense and risk or to compensate the value of that part.
10 Industrial and intellectual property rights
10.1 Exposure Systems retains industrial and intellectual ownership rights, including copyright and design rights, with respect to the images, drawings, calculations, technical specifications, models, designs, sketches, diagrams, etc. Exposure Systems may not pass them on, disclose them or reproduce them to third parties in any form whatsoever without its written permission. Upon request by Exposure Systems they must be returned immediately.
10.2 In the event that the provisions of paragraph 1 are violated, the customer will owe a penalty of € 10,000 without the need for a reminder or notice of default, without prejudice to Exposure Systems' right to claim full compensation for damages including interest and costs. Any fine paid or owed shall be applied against any damages due plus interest and costs.
10.3 As part of an assignment Exposure Systems is not obliged to investigate and is not liable for damage caused by infringement of copyrights or design rights, patents, licenses and/or other intellectual property rights of third parties as a result of the use of data provided by or on behalf of the client, such as drawings, models, designs, etc. The client indemnifies Exposure Systems against claims from third parties based on (alleged) infringement of these rights.
10.4 Exposure Systems is at all times entitled to use the work it has produced for the client as part of an assignment for its own publicity or promotion, unless there are weighty interests that are known to Exposure Systems that prevent this.
11 Invoicing and payment
11.1 Exposure Systems is entitled to invoice even after partial delivery or partial performance of the agreed work or services.
11.2 In the case of partial deliveries (as agreed), Exposure Systems is entitled, after delivery of the first part, to demand payment not only for this part but also for all costs incurred for the entire order, such as film, moulds and proofs etc.
11.3 The client is obliged to pay the invoiced price within 30 days or within 8 days minus 2% payment discount after the invoice date without any deduction, discount or settlement.
11.4 The price charged shall, however, at all times be payable on demand, without any summons or notice of default being required, if the principal is declared bankrupt, requests a provisional suspension of payments, or if a request by the principal (natural person) for the debt rescheduling arrangement to be declared applicable is approved by the court, the principal loses the power of disposition of its assets or parts thereof by attachment, placement under curatorship or otherwise, and in the event that the principal fails to fulfil one or more of its obligations, whether under an agreement or by law.
11.5 The client will be in default by the mere expiry of the payment term, without any summons or notice of default being required.
11.6 If the term of payment is exceeded, the client shall owe default interest of 1% per month from the date of default, whereby part of a month shall be counted as a whole month. At the end of each year, the amount on which the interest is calculated shall be increased by the interest due for that year.
11.7 If the client does not timely comply with his payment obligations, he shall also owe the extrajudicial collection costs. These costs amount to at least 15% of the outstanding principal amount with a minimum of € 250,-. Exposure Systems is only obliged to prove the costs incurred in excess of the percentage and amount referred to in the previous sentence.
11.8 Payments made by the client shall always serve to settle all costs and interest due and subsequently those invoices that have been outstanding the longest, even if the client states that the payment relates to a later invoice.
12 Liability and indemnity
12.1 With the exception of Exposure Systems' obligation under the terms of the warranty set forth in article 7, Exposure Systems shall not be liable for any direct or indirect tangible or intangible damage, regardless of how it is called, that the client or any third party may suffer in connection with or arising out of negotiations conducted with Exposure Systems, an agreement entered into with Exposure Systems, an error, shortcoming or omission on the part of Exposure Systems, an act of God, a delivered or repaired or altered item or service provided by Exposure Systems, or any (other) cause whatsoever unless a. Exposure Systems is insured for the damages in question and this insurance pays out.a. Exposure Systems is insured for damages and the insurance company pays out; in this case, liability shall be limited to the amount paid out under the insurance policy in the case in question; b. The client or third party in question demonstrates that the damage is the result of a deliberate act or omission on the part of one or more of Exposure Systems' managers.
12.2 The Customer shall indemnify Exposure Systems for any damage that may occur as a result of the Customer's failure to obtain any necessary permits or to comply with any other legal or other requirements.
12.3 In the event that it is determined in a court of law that the limitation of liability described in paragraph 1 cannot be upheld, the amount of compensation payable by Exposure Systems - including fines - will never exceed the amount that the customer has paid or is due to Exposure Systems, excluding VAT, for the order or order in question that caused the damage. In all cases, Exposure Systems shall not be liable for indirect or consequential damages, including lost profits, lost savings, and damage due to business interruption.
12.4 In all cases in which Exposure Systems is entitled to invoke the provisions of this article, any employee(s) who is/are addressed may also invoke them, as if the provisions of this article had been stipulated by the employee(s) concerned.
12.5 Upon request, the customer shall fully indemnify Exposure Systems for all third party claims against Exposure Systems related to any fact for which liability is excluded in these Terms and Conditions.
13.1 Exposure Systems may terminate the agreement in whole or in part with immediate effect - without being required to pay any compensation to the customer and without prejudice to Exposure Systems' right to claim compensation from the customer - if the customer is declared bankrupt, requests a provisional suspension of payments, a request from the client (natural person) for the application of a debt rescheduling scheme is granted by the court, the client loses the authority to dispose of his assets or parts thereof due to attachment, placement under guardianship or otherwise, and the client fails to fulfil one or more of his obligations, whether these arise from an agreement or from the law.
13.2 In the cases mentioned in paragraph 1, all amounts due by the client to Exposure Systems, including compensation, are due immediately and in full.
14 Joint and several liability
14.1 If the customer consists of more than one (legal) entity at any time during the performance of the agreement, each of these (legal) entities shall be jointly and severally liable to Exposure Systems for the obligations arising from the agreement.
15 Prohibition on transfer and pledging of rights and/or obligations
15.1 The client may assign rights or obligations under any agreement with Exposure Systems to a third party only with Exposure Systems' prior written consent.
15.2 Neither is the client permitted to pledge to a third party any of the client's claims on Exposure Systems, for whatever reason, unless Exposure Systems has given its written permission. Exposure Systems may grant permission under certain conditions.
16.1 The Principal shall not in any way whatsoever disclose to any third party the Agreement and everything that comes to its knowledge in connection with the conclusion or performance of this Agreement and the confidential nature of which it knows or may reasonably suspect. The previous sentence does not apply insofar as disclosure is necessary for the performance of this agreement or insofar as the client is obliged to disclose on the basis of any statutory provision.
17 Expiry of rights of action
17.1 Unless otherwise stipulated in these General Conditions, all of the Customer's claims against Exposure Systems arising from or related to an order or assignment - including claims for compensation for damages and/or fines - will expire two years from the date on which the Customer was invoiced for the relevant delivered item, work performed and/or service rendered in connection with the claim, unless the claim(s) are brought before the competent court within this period.
18 Conversion and provisions remaining in force
18.1 If any provision of these conditions should be ineffective, the other provisions shall nevertheless remain in force. Moreover, such a non-effective provision shall be converted into a provision which, as far as possible, does have the same purport and is effective. 18.2 After the termination of the agreement, regardless of the cause, those provisions remain in force which are intended by their nature.
19 Applicable law and competent court
19.1 Dutch law applies to all legal relations between Exposure Systems and the customer. The applicability of the 1980 United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is explicitly excluded.
19.2 All disputes between parties arising from the relationships governed by these General Conditions, insofar as they exceed the jurisdiction of the subdistrict court, will be submitted to the District Court of Zutphen, the Netherlands, on the understanding that Exposure Systems also has the right to submit the dispute to the competent court in the jurisdiction where the customer has its registered office. These General Conditions have been filed with the Chamber of Commerce for Central Gelderland.