General Terms and Conditions – GoCustomized B.V.
Article 1 – definitions
- Supplier: the private company with limited liability GoCustomized B.V., trading under the name GoCustomized, CustomConcepts or any other trade name;
- Buyer: the natural person, the legal person or the public body which enters into an agreement with Supplier or to which Supplier makes an offer, hereinafter referred to as ‘the buyer’.
Article 2 – applicability
- These terms and conditions are applicable to all offers and all agreements concluded by Supplier.
- General purchase conditions of the buyer shall only apply if it has been agreed in writing or by email that these, under exclusion of these terms and conditions, will be applicable between the parties.
- If at any time one or more provisions of these terms and conditions wholly or partially are null or void, the remaining terms and conditions will be fully applicable. Supplier and the buyer will enter into negotiations to agree on new provisions in order to replace the null and void provisions, whereby the purpose of the original provisions shall be taken into account as much as possible.
Article 3 – agreement
- The submission of a quotation, estimate, preproduction estimate or similar notice, whether or not designated as an offer, shall not entail an obligation on the part of Supplier to conclude an agreement with the buyer.
- Any offers made by Supplier are non-binding and can only be accepted without any deviations.
- An agreement is concluded after the assignment to this effect has been confirmed in writing or by electronic means by either party to the other party.
- The confirmation, referred to in paragraph 3 of this article is considered to be correct if the recipient of the confirmation has not made any objections thereto in writing respectively electronically, within five working days of the date of the confirmation, which was sent either via post or electronically.
- If the buyer has accepted Supplier’s offer electronically, Supplier shall as soon as possible electronically confirm the acceptance of the offer.
Article 4 – amendments and cancellation
- After its conclusion, the agreement cannot be amended anymore by the buyer, unless Supplier agrees therewith in writing or by email. Under amendment of this agreement, more or less work is also to be understood.
- Cancellation is only possible as long as Supplier has not commenced the implementation of the agreement and the buyer shall reimburse Supplier for any damage caused by the cancellation. Such losses shall include any losses and lost profits incurred by supplier and the preparatory costs, already incurred by her.
- Cancellation of long-term contracts is not possible, unless otherwise agreed.
Article 5 – price
- All prices quoted are exclusive of sales tax (VAT) and / or other government levies.
- All prices quoted relating to performances to be carried out by Supplier are only valid for the agreed services on the basis of the agreed specifications.
- In combination offers, there is no obligation to deliver part of the overall performance at the amount specified for that part of the offer, or at a proportionate part of the price quoted for the whole.
Article 6 – Price changes
- If the buyer makes changes to the agreed specification, Supplier is entitled to increase the agreed price. Modifications of the specifications in any case include: author’s corrections or changed instructions after the receipt of working drawings, models and / or typesetting, printing and other samples. Supplier shall contribute to these modifications within reasonable limits, if the content of the performance to be delivered by him, at least does not substantially deviate from the originally agreed performance.
- Supplier is entitled to increase the agreed price if circumstances arise after the conclusion of the agreement, which justify a price increase. In any case, such circumstance is the case in the event of an increase in the cost of materials, intermediate products and / or services, necessary for the execution of the agreement, an increase of the shipping costs, wages, employers contributions, social insurance, of the costs involved in other conditions, introductions of new and increased existing government levies on raw materials, energy and / or residues, substantial changes in currency rates or, in general, conditions which are similar to the foregoing.
- Extraordinary or reasonably unforeseeable processing difficulties, arising from the nature of the materials and products to be processed are grounds for increasing the agreed price.
- Extra laborious texts, unclear models, faulty data carriers, faulty computer software or data files, faulty method of delivery of materials or products to be delivered by the buyer and any similar deliveries by the buyer, which require more work or cost from Supplier than which she, upon the conclusion of the agreement, could reasonably expect, are grounds for increasing the agreed price.
- Supplier is entitled, under a long-term contract, as referred to in article 15, to increase the agreed price annually effective January 1 of each year, based on the consumer price index for all households, published by the Dutch Central Bureau of Statistics.
Article 7 – Terms of payment
- Unless otherwise agreed in writing, payment of invoices sent by supplier shall take place within eight days after the invoice date, without the buyer being able to rely on any discount, settlement or suspension.
- In default of payment within the agreed period, the buyer shall be in default without notice of default being required by Supplier.
- If in default of the payment within the agreed period, the buyer shall have to pay one percent interest on the outstanding invoice amount per month, unless the statutory interest rate is higher, in which case the statutory interest is due. Furthermore, the buyer will then be obliged to pay compensation for the extrajudicial costs incurred by Supplier in order to achieve full or partial recovery of the outstanding invoice amount. These compensation costs are set at 15% of the total amount due with a minimum of € 75, -.
- Supplier is entitled to an agreed delivery in parts, after delivery of the first part, in addition to the payment of this part and can also request the payment of the costs incurred for the entire delivery, such as printing, job preparation and print tests.
- Supplier is entitled to charge the cost of shipment by the postal service and / or similar distributors in advance to the buyer. Shipment will then take place after the payment of these costs shall be received by Supplier.
- Supplier reserves at all times the right to perform a credit check and / or demand security for payment or advance payment, in which case compliance with her obligations may be suspended until the required security has been furnished.
Article 8 – retention of title
- In the framework of the agreement, all the goods delivered by Supplier remain the property of Supplier until the buyer has properly concluded all obligations under the agreement(s), including the amount due, any surcharges, interest, taxes, costs, and damages due under these conditions or the agreement.
- Goods, delivered by Supplier, pursuant to paragraph 1 of this article, which fall under the retention of title, may not be resold and may never be used as currency. The buyer is not entitled to pledge or otherwise encumber the goods subject to retention of title.
- The buyer should always do what is reasonably expected to protect the retention of title of Supplier.
- If third parties seize the goods delivered under retention of title or wish to establish or assert any rights thereto, the buyer is required to immediately inform Supplier thereof.
- In case Supplier needs to exercise its rights in this article, the buyer unconditionally and irrevocably authorises Supplier and third parties to be appointed by Supplier in advance, to access all those places where the property of Supplier is located and to repossess those goods.
Article 9 – Method of delivery
- Unless expressly agreed otherwise in writing, the delivery of the goods to be supplied by Supplier shall take place from its building in Amsterdam.
- The buyer is obliged to fully cooperate with the delivery of items to be supplied by Supplier under the agreement. The buyer will also, without being summoned, be in default, if he fails to collect the goods to be delivered upon first request by Supplier, or, if delivery to his address has been agreed, he refuses to accept the goods to be delivered.
- If transport of the goods has been agreed, this takes place at the expense and risk of the buyer. Transport shall also include: delivery by post (whether or not by the concessionaire within the definition of Article 1 of the Postal Act), transmission of data through the telephone network and any comparable dispatch using any technical means. The acceptance of goods from Supplier by the carrier serves as proof that these are in apparent good condition, unless the contrary is evident from the consignment note or receipt.
- Supplier is not responsible for storage of the goods to be delivered, unless expressly agreed. If storage takes place, this shall be at the expense and risk of the buyer.
Article 10 – term of delivery
- Unless explicitly stated otherwise in writing, agreed delivery deadlines are non- binding.
- If after repeated written notice of default by the customer, supplier still fails to fulfil his obligations within a reasonable time, then the buyer has the right to terminate the agreement.
- In the event of interim changes to the agreed specifications of the work, the agreed delivery period shall lapse.
- In the implementation of the agreement by the supplier, the buyer is obliged to do all that is reasonably necessary or desirable to make timely delivery by suppliers as possible, and will act expeditiously to supplier’s instructions to that effect.
- In case of non-compliance of the buyer with the provisions of the previous paragraph, an agreed deadline for the delivery shall not be binding anymore and the buyer shall be in default without written notice of default by the Supplier.
- If in the agreement between the parties transport was agreed as referred to in the third paragraph of Article 9, the following shall apply: the time of delivery will apply when the Supplier provides the goods mentioned in the agreement for transmission to the addressee to the carrier specified in the agreement.
Article 11 – investigation upon delivery
- The buyer is obliged to immediately examine the goods after delivery to check if the Supplier has properly implemented the agreement. Complaints about the performance delivered by Supplier shall be notified by the buyer in writing or email to the Supplier within seven days of delivery. After the expiry of this deadline, the rights of the buyer shall lapse.
- Supplier shall always be entitled to set a new adequate performance in place of a previous inadequate performance, unless the default is not reversible.
- The performance of Supplier is in any case deemed to be correct between parties if the buyer has commissioned, handled or processed, delivered to third parties, or has had them commissioned, handled or processes or delivered to third parties, unless the buyer beforehand has followed the provisions of the second sentence of the first paragraph in this article.
Article 12 – content agreement
- The risk of misunderstanding with respect to the content and implementation of the agreement arising from Supplier not, not correct, not timely, not fully receiving the specifications or other communications from the buyer. Also misunderstandings regarding the content and implementation of the agreement resulting from transmission errors by use of (tele) communication facilities, such as telephone, fax, computer or similar transmission media are for the risk of the buyer. The buyer will fully indemnify Supplier in this respect.
Article 13 – Typesetting, printing and other samples
- If it is agreed that typesetting, printing or other samples will be sent to the buyer, the buyer is obliged to carefully examine these samples for errors and defects, and to return them expeditiously to Supplier corrected or approved.
- The Supplier shall not be liable for any deviations, errors and faults which remained unnoticed in samples approved or corrected by the Buyer.
- If at the request of the buyer more than one sample is being prepared, these samples will be charged separately in addition to the agreed price, unless expressly otherwise agreed in writing.
Article 14 – deviations
- Deviations between on the one hand the supplied work and on the other hand the original model or typesetting, printing or other samples, cannot constitute a reason for a disapproval, discount, dissolution of the agreement or damages, if they are of minor importance.
- In assessing whether deviations in the totality of the work should or should not be regarded as minor, a representative sample of the work is taken into account, unless it concerns a specific individual case.
- Deviations which, taking all circumstances into account, in fairness have no or only a minor influence on the practical value of the work, are deemed to be deviations of minor importance.
- Deliveries in excess or short of the number agreed are permitted if they amount to no more or less than the following percentages:
- Edition up to 1,000 units: 0%;
- Edition as from 1,000 units: 4%.
The additional or reduced quantity supplied will be charged or deducted.
Article 15 – Long-term agreements
- There is a long-term agreement when Supplier signs an agreement with the buyer which provides regular or periodic performance of work.
- The agreement terms are for an indefinite period, unless otherwise agreed.
- The long-term agreement of indefinite duration can only be terminated by the buyer by means of a registered letter or a registered email message with a notice period of six months. If the buyer does not place any orders with the Supplier within the applicable notice period and there is no (minimum) amount and associated (minimum) price agreed, the calculation of the loss of the Supplier resulting from the lack of orders shall be borne by the buyer, based on the average quantity and the average price which the buyer during three years prior to termination or as long as the agreement has lasted, bought or paid.
- A long-term agreement for a definite period of time shall be tacitly renewed for a similar period unless one of the parties terminates the contract no later than six months before the expiry of the definite time by means of a registered letter or registered email.
Article 16 – right of intellectual or industrial property
- The buyer guarantees Supplier that the performance of the contract and in particular bthe reproduction and / or the disclosure of the received goods of the Buyer and / or the data (such as copy, typesetting, models, drawings, photographs, lithographs, films, data carriers, computer software, databases etc.) do not infringe any rights which third parties may enforce under national, supranational or international regulations in the field of intellectual property and / or the right to industrial property. The buyer indemnifies Supplier both in and out of court for all claims of third parties under this law or regulation referred to above.
- In cases where the validity of the results from third-party rights claimed under paragraph 1 of this Article have reasonable doubts or persists, the Supplier is entitled to suspend the fulfilment of the agreement until such time that it shall be irrevocably established in court that Supplier does not violate these rights by the fulfilment of the agreement. Supplier will then execute the order within a reasonable period.
- Unless otherwise agreed in writing, Supplier always remains the owner of the intellectual property that may arise of the works produced by her in the fulfilment of the agreement (including production and resources) also when the relating activities are listed as a separate item in the offer or on the invoice.
- The goods to be delivered or delivered by the supplier according to her design (including production and resources) may, also if and insofar, in this respect there is no intellectual property or other legal protection for Supplier, not be reproduced or used in connection with any production process.
- The buyer obtains after delivery by Supplier, the non-exclusive right to use of the work produced by Supplier under the agreement. The right of use is limited to the right of normal use of the goods delivered and, in particular, does not mean the use to reproduce these issues in the context of any production process.
- Paragraphs 3 to 5 of this Article shall not apply to the work, produced by Supplier, according to the corporate identity of the buyer, design, provided by the customer, content, text, et cetera. Existing copyright and other intellectual property rights of the buyer shall be respected by Supplier.
Article 17 – files supplied by the buyer
- The buyer must supply the files in a timely and proper manner, at his expense and risk. The buyer will ask instructions from the Supplier to this end.
- The files supplied by the buyer must comply with the file format and software requirements of Supplier.
- If the buyer, for the delivery of data files, uses hardware or software, provided by Supplier or actually delivered, the risk of transmission errors remains with the buyer. Supplier is not liable for the failure to fulfil the agreement as a result of errors in hardware or software or as a result of incorrect or improper use by the buyer. The buyer undertakes to fully indemnify Supplier regarding the above.
- Supplier is not obliged to examine the suitability of the files before starting the work.
- The responsibility for the data files provided by the buyer rests entirely with the buyer, who is responsible for its accuracy. Also, the buyer is responsible for ensuring compliance with the requirements under privacy laws.
- The risk of transmission errors with the use of (tele) communications facilities in connection with the conclusion and / or execution of the agreement rests with the buyer. The buyer undertakes to fully indemnify Supplier regarding the above.
- If Supplier finds that the submitted files do not meet the requirements, Supplier shall not be obliged to compliance with the agreement. Supplier is not liable for the consequences of failure or later execution of the agreed activities. If, for this reason, the agreement cannot be carried out, it will be seen as a cancellation by the buyer, as described in the second paragraph of Article 4.
Article 18 – materials and products supplied by the buyer
- If the buyer must provide materials and products, the buyer must do so in a timely and proper manner. The buyer is liable in addition to the necessary equipment or products required for the agreed performance, to also provide a reasonable amount for the respective processing for samples, spoilage and the like. The buyer will request a specification from Supplier for this purpose. The buyer guarantees Supplier will receive a sufficient amount. The confirmation of receipt of the materials or products by Supplier does not imply acknowledgement that a quantity, sufficient or as indicated on the transport documents, has been received.
- Supplier is not required prior to printing or editing, to examine the goods received from the buyer on suitability for this purpose.
- Materials and products must be suitable for the operation that has been agreed and the buyer will adhere to the guidelines given by Supplier. If Supplier finds that the submitted materials and / or products do not meet the requirements, Supplier shall not be obliged to comply with the agreement. Supplier is not liable for the consequences of failure or later execution of the agreed activities. If the agreement cannot be executed for this reason, it will be seen as a cancellation by the buyer, as described in the second paragraph of Article 4.
- Supplier cannot be held responsible for the failure to comply with the agreement, if that is due to extraordinary or for vendor reasonably unforeseeable processing difficulties arising from the nature of the materials or products supplied by the buyer, and nor if that is a result of deviations between the example / sample, initially shown to Supplier, and the materials or products, later provided by the buyer.
- Supplier does not warrant any properties of the delivered materials and products if the buyer did not specify, no later than at the conclusion of the agreement, the characteristics and the nature of the materials or products supplied by him, and has not provided adequate information on the applied pre-treatments and the applied surface treatments.
- Unless expressly agreed otherwise, Supplier cannot be held liable for the loosening, sticking, soiling, change of gloss or colour, nor for damaging material and products received by him from the buyer, and printed by him or editing, if they have undergone a pre-treatment, such as by the application of lacquer, varnish, or anti-stain powder.
- The buyer is obliged to inform Supplier of any special difficulties or health risks during the printing or processing of the materials and products supplied by him.
- Supplier is entitled to dispose of the waste, such as cutting waste of materials and products supplied by the customer, as if it were her own. The buyer is obliged, at the request of Supplier, to collect the unused materials and products as well as the aforementioned waste at the site of Supplier.
Article 19 – guarantee
19.1 On products supplied, the Dutch statutory warranty conditions shall apply, subject to the other paragraphs of this article.
19.2 Guarantee can only be given, if the purchased product has and is being used, in a normal manner and for the intended purpose. For different use of the product, warranty claim is excluded.
19.3 Excluded from the warranty is also normal wear, damage due to the product falling, improper use and / or other damage caused by external factors.
19.4 Supplier does not guarantee protection of goods (including but not limited to phones, tablets and computers) from damage, when used in combination with and / or when securing a product (such as a sleeve), bought by her, on / to such an item.
Article 20 – Force majeure
- Force majeure exists if Supplier cannot comply with the agreement due to a circumstance which is not attributable to her fault, and which is not regarded as her responsibility by virtue of law, or according to generally accepted standards.
- Force majeure is always the case if the supplier cannot comply with the agreement due to war, mobilisation, riots, flooding, blocked shipping, other blocking of transport, stagnation, or reduction or discontinuation of supplies by public utilities, lack of coal, gas, petroleum products or other means to generate energy, fire, machinery breakdown, outage and / or fault and other accidents, faults and flaws in the (tele) communications facilities, strikes, lockouts, trade union action, export restrictions, other government measure, non-deliver of necessary materials and semi-manufactured products, intent or gross negligence of assistants and other similar circumstances.
- In the event of force majeure, the buyer is not entitled to rescind the agreement or compensation.
Article 21 – Liability
- The Supplier shall only be liable for direct damage. Direct damage is exclusively understood as the reasonable costs of determining the cause and extent of the damage, insofar as the determination concerns the damage under these conditions, any reasonable costs incurred to have the poor performance of the entrepreneur meet the agreement, to the extent that this can be attributed to the entrepreneur and reasonable costs incurred to prevent or limit direct damage under these conditions.
- Any liability for direct damages from Supplier against the buyer, for whatever reason, for each event (whereby a sequence of events is one event) is limited to the actual invoice amount paid by the buyer to the entrepreneur exclusive of shipment costs.
- Liability for indirect damages, including lost profits, consequential damages, loss of money, loss of savings, and loss of goodwill in the business or profession of the buyer and damage due to business interruption, is expressly excluded.
- Supplier shall not be liable for damages of any kind after delivery was made and the Buyer has taken into use, prepared or processed, provided to third parties or has allowed to be used or prepared of processes by third parties.
- Supplier shall not be liable for damages in connection with unprocessed orders not accepted by means of an order confirmation.
- Supplier is also not liable for damages on the products from the buyer for purpose of printing, editing or processing if the buyer did not inform on the characteristics and nature of supplied materials and adequate information on the pre-treatment and surface treatments applied to Supplier by the conclusion of the agreement made.
- If Supplier, in respect of any damage for which she, under the agreement with the buyer or these terms shall not be liable, shall be held liable by a third party, the buyer will fully indemnify Supplier and compensate all that she owes to this third party.
- Any right of the buyer to claim damages expires if a claim to that effect is not made within six months after delivery before the competent court.
Article 22 – confidentiality
- The parties are mutually obligated to keep data files in the context of the coming agreement between their knowledge or kept secret.
- If the buyer has an access code for the purpose of the use of certain (tele) communications facilities, the buyer shall handle this code within the framework of the implementation of the agreement and not disclose it to any third parties.
Article 23 – applicable law, jurisdiction
- To all agreements concluded by Supplier, only Dutch law is applicable.
- Any disputes which may arise in connection with the agreements governed by these terms and conditions between the parties will initially be exclusively subjected to the judgment of the competent judge of the District Court of Amsterdam.
Article 24 – final provision
- The titles of the articles in these conditions are only for the convenience of the parties and do not also determine the content. No rights may be derived from the titles.