Terms and Conditions
General Terms and Conditions of the private limited company EXPOSURE SYSTEMS NEDERLAND B.V. established in (6673DE) Andelst, at Industrieweg 10, hereinafter referred to as: Exposure Systems.
1.1 These General Terms and Conditions apply to all Exposure Systems’ offers and quotations and all agreements and legal relationships with Exposure Systems. The counterparty of Exposure Systems is referred to in these general terms and conditions as: the client.
1.2 Exposure Systems expressly rejects the applicability of any general terms and conditions of the client.
2 Offers and formation of agreements
2.1 Exposure Systems’ offers and quotations are without obligation unless expressly stated otherwise in the offer or quotation.
2.2 Illustrations, drawings, descriptions, size and weight specifications, prices or other indications provided by Exposure Systems are not binding. These are only in the nature of approximate indications.
2.3 An agreement is only concluded after a director of Exposure Systems or a person specially authorized by Exposure Systems for that purpose has confirmed the order or instruction of the principal in writing or by the signature of the offer or quotation originating from Exposure Systems by the principal if it is intended to serve as a written record of the agreements made with the principal. If the parties fail to do so, but the client agrees for Exposure Systems to commence performance of the order, the contents of the offer or quotation shall be deemed agreed between the parties.
2.4 Additional or less work shall not be binding on Exposure Systems until 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 prices quoted before or at the time of the conclusion of the agreement in the event of subsequent changes in cost-determining factors, taking into account the changed amounts.
3.3 If prices are not fixed before or at the time of the conclusion of the contract, the prices payable by the client shall be the prices indicated in Exposure Systems’ price lists in effect on the day of delivery or the day of completion of the work or service.
3.4 Exposure Systems is entitled to require from the client advance payment or sufficient security or supplement to security provided, and to suspend deliveries until the client has provided sufficient security for payment. Exposure Systems shall not be liable for any damages to be suffered by the client as a result of such delay.
4 Performance of the agreement, delivery, deviations and soundness
4.1 Exposure Systems is obliged to perform the order to the best of its ability and with care for the purpose specified by the client. Exposure Systems is entitled to have the order performed (in part) by a third party. Exposure Systems is not liable for texts (content or language) and visual material provided by the client or a third party engaged by it, nor for the soundness of the digital files/data carriers used thereby. Client must ensure that any necessary permits have been granted and that all other legal or other requirements have been met in this regard.
4.2 The Client is obliged to carefully and promptly check the (printing) proofs made available for inspection by Exposure Systems for errors and defects and to forward its opinion to Exposure Systems. Approval of the tests or failure to fulfill the verification obligation in a timely manner shall constitute acknowledgment that Exposure Systems has performed the tests prior to related work in accordance with the order.
4.3 Exposure Systems shall endeavor to perform the order within the specified time limit, but shall not be bound to have completed the order within such time limit. A stated delivery date is always a target date and is only indicative, unless expressly agreed otherwise.
4.4 Exceeding a delivery period shall not entitle the client to compensation, to suspension or non-performance of its obligations or to dissolution of the contract of assignment.
4.5 Exposure Systems is entitled to deliver an order in its entirety or successively in parts. In the latter case, Exposure Systems shall be entitled to invoice the client separately for each partial delivery and to demand payment for it. If and as long as a partial shipment is not paid for by the principal and/or the principal fails to fulfill other obligations arising from the relevant agreement or previous agreements, Exposure Systems shall be entitled to dissolve the agreement(s) to the extent that they have not yet been performed, without judicial intervention and without any notice of default from the principal, while retaining Exposure Systems’ right to compensation and without the principal being able to assert any right to compensation or otherwise.
4.6 The date of delivery shall be the day of shipment of the goods or the day of notification as referred to in paragraph 8 of this article.
4.7 If it is agreed that Exposure Systems will arrange for transportation of the goods, they will, if the place of delivery is not explicitly specified, be delivered by Exposure Systems to, or sent for delivery to, the principal’s address known to Exposure Systems. The goods travel at the client’s expense and risk even if the order for transportation is given by or on behalf of Exposure Systems. Unless the client timely requests Exposure Systems to insure the goods during transport at the client’s expense, the goods shall travel uninsured. The principal is obliged to unload the goods, after the arrival of the means of transport, as soon as possible.
4.8 If it has not been agreed that Exposure Systems will deliver the goods (or have them delivered), the principal is obliged to collect the goods (or have them collected) from the Exposure Systems premises in Aalten or from the distribution center or factory designated by Exposure Systems within two days of being notified by Exposure Systems that the goods are ready for collection.
4.9 If the client fails to take delivery or collect the goods at the times specified in paragraphs 7 or 8, the client shall be in default by that very fact. Exposure Systems shall then be entitled to store the goods or have them stored at the client’s expense and risk. The client is obliged to reimburse Exposure Systems for storage costs in accordance with Exposure Systems’ usual or the rate charged to Exposure Systems. The principal shall not be entitled to refuse payment for these items on account of delivery that has not yet taken place.
4.10 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 5,000 units:10% – circulation of 5,000 and more: 5%.
4.11 Deviations between the delivered work on the one hand and the original design, drawing, copy or model respectively the typesetting, printing, or other proof, on the other hand, cannot constitute grounds for rejection, discount, dissolution of the agreement or compensation, if they are of minor significance.
4.12 Upon or immediately after delivery, the client shall be obliged to check whether the delivered goods are in accordance with the agreement and in particular whether they are sound, sound and complete.
4.13 If no written complaint about the quantity delivered is made immediately -at the latest within 48 hours- after delivery of the goods, the quantities stated 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, it must report them to Exposure Systems in writing no later than eight days after delivery. Failure to meet the deadlines specified in this paragraph shall void any claim against Exposure Systems in respect of such failures.
4.14 The provisions of this article also apply to orders that include the (dis)assembly or transportation of goods.
5 Transfer and retention of title, risk and liens
5.1 Subject to the provisions of paragraph 3 of this article, ownership of the items shall pass to the client at the time of delivery referred to in article 4.
5.2 Without prejudice to the above, the goods are at the risk of the client from the moment the goods have left the Exposure Systems premises in Aalten or the Exposure Systems designated distribution center or factory.
5.3 a. Exposure Systems reserves title to all items delivered by it to the client until the purchase price for all such items has been paid in full. If Exposure Systems performs work for the benefit of the client under these agreements on behalf of the client to be reimbursed by the client, the reserved property aforementioned shall apply until the client has also paid these claims of Exposure Systems in full. Reserved ownership also applies to any claims Exposure Systems may obtain against the client on account of the client’s breach of one or more of its obligations to Exposure Systems under the aforementioned agreement. b. As long as the ownership of the delivered items has not passed to the client, the client may not pledge the items or grant any other right to them to a third party, except as provided below in subsection f. c. Exposure Systems hereby reserves for now all rights of pledge as referred to in Article 3:237 of the Dutch Civil Code as additional security for any claims, other than those referred to in Article 3:92(2) of the Dutch Civil Code, that Exposure Systems may still have against the client on any account whatsoever, on goods delivered by Exposure Systems that have passed into the ownership of the client through payment. Exposure Systems shall at all times be entitled and is hereby irrevocably authorized by the principal to perform the acts necessary for the establishment of this reserved lien (expressly including the establishment of the lien by authentic or registered private deed) and also to act on behalf of the principal in so doing. At Exposure Systems’ request, the principal agrees to cooperate with this pledge without delay. d. The client is obliged to store the goods delivered under retention of title with due care and as the recognizable property of Exposure Systems. The principal is obliged to insure the goods for the duration of the reserved property against fire, explosion and water damage as well as theft and to make the policies of these insurances available to Exposure Systems for inspection on first demand. All claims of the principal against the insurers of the goods pursuant to said insurance policies shall, as soon as Exposure Systems indicates that it wishes to do so, be pledged to it by the principal in the manner indicated in Article 3:239 of the Dutch Civil Code, as additional security for Exposure Systems’ claims against the principal. The last two sentences of paragraph 3c apply. e. If the client fails to fulfill its payment obligations to Exposure Systems or Exposure Systems has good reason to fear that it will fail to fulfill such obligations, Exposure Systems is entitled, on its own authority and without any liability to the client, to repossess the goods delivered under retention of title. After repossession, the client will be credited for the market value, which in no case can exceed the original purchase price, less the costs incurred on repossession. f. The client is permitted to sell and transfer the goods delivered under retention of title to third parties in the normal course of its business. When selling on credit, the principal is obliged to stipulate a retention of title from his principals on the basis of the provisions of this article. g. The client agrees not to assign or pledge any claims obtained against its principals to third parties without Exposure Systems’ prior written consent. The principal further undertakes to pledge said claims, as soon as Exposure Systems expresses its desire to do so, to Exposure Systems in the manner indicated in Article 3:239 of the Dutch Civil Code as additional security for its claims on any account whatsoever against the principal. The last two sentences of paragraph 3c apply. h.Insofar as Exposure Systems’ retention of title to the delivered goods is extinguished by accession or shaping of the goods, the principal hereby establishes in advance a non-possessory pledge on the accession or shaping of the goods for the benefit of Exposure Systems, as security for all that the principal owes and will owe Exposure Systems, on whatever account. The last two sentences of paragraph 3c apply.
5.4 All goods, documents, securities and monies which Exposure Systems or a third party on its behalf holds or receives from or for the Client on whatever account and for whatever purpose, and all claims which the Client holds or receives from Exposure Systems on whatever account, serve Exposure Systems as a pledge for all that it holds or will hold against the Client on whatever account. This lien shall be deemed to have been created each time Exposure Systems or a third party on its behalf takes possession of those items, documents, securities and funds, respectively, at the time the claims arise.
5.5 Upon completion of the order, Exposure Systems shall not be bound to any retention obligation with respect to the deliverables associated with the order.
6 Molds, forms, semi-finished products, production equipment, auxiliary tools, etc.
6.1 All items manufactured by Exposure Systems within the framework of the execution of the order such as dies, moulds, semi-finished products, means of production, auxiliary tools, etc., or manufactured in whole or in part to Exposure Systems’ instructions, for which the client has paid the agreed costs, shall remain the property of Exposure Systems, even if they are listed as a separate item on the quotation, in the offer or on the invoice. Exposure Systems is not required to surrender or retain these items to the client.
6.2 The manufacturing costs paid by the client are to be considered as integral to the total costs involved in the order.
7 Quality and advertisements
7.1 Exposure Systems does not guarantee that goods sold, work performed and/or services rendered by Exposure Systems are suitable for the purpose for which the client intends to use or employ them, even if such purpose has been made known to Exposure Systems, unless the contrary has been expressly agreed between the parties.
7.2 The client can no longer claim that what has been delivered, completed or performed is not in accordance with the agreement if it has not notified Exposure Systems of this in writing within eight days after it has discovered or reasonably could or should have discovered this and, in any event, after six months have elapsed since delivery of the goods, delivery of the work or completion of the services.
7.3 A claim regarding goods delivered or work performed or services rendered does not affect the Client’s obligations under previous or future deliveries or performances and does not entitle the Client to suspend payment of Exposure Systems’ claim.
8.1 The following are expressly excluded from any warranty on goods delivered by Exposure Systems: normal wear and tear (including gradual discoloration, chalking and gloss reduction due to UV influence or weather conditions), any form of damage occurring during or after the customer’s own application of self-adhesive materials, damage due to inexpert or careless use, damage occurring after or as a result of changes made after delivery.
8.2 Goods sold and delivered by Exposure Systems subject to manufacturer’s warranty are exclusively subject to the relevant manufacturer’s warranty terms and conditions.
8.3 The other items sold and delivered by Exposure Systems are subject to the following warranty terms and conditions: a. Exposure Systems only guarantees delivered new goods for a period of six months from the date of delivery. b. The warranty extends only to the replacement, repair or restoration free of charge or refund of the price charged -at Exposure Systems’ option- of the defective item or part, to the extent that the defect is due to faulty materials or construction. c. No claim to any warranty shall exist if the item delivered by Exposure Systems is c.q. a third party not in accordance with the Exposure Systems manual or instructions or otherwise incorrectly or inexpertly assembled or installed, or -if a release of the item supplied by Exposure Systems is required -the relevant release document has not been provided by the relevant client c.q. third to Exposure Systems is shown. d. The warranty claim is void if: 1. the principal fails to notify Exposure Systems immediately after the discovery of the defect and does not give Exposure Systems the opportunity to detect and remedy the defect immediately, in any case within eight days of submitting a claim to Exposure Systems; 2. the principal fails to comply with a request from Exposure Systems to send the defective good or part carriage paid to Exposure Systems; 3. the principal or third parties -without Exposure Systems’ prior knowledge and consent- have performed work on the good delivered or processed by Exposure Systems, in respect of which the warranty claim is made; 4. the defect is the result of injudicious use, insufficient maintenance, wear or damage; 5. the good is not in accordance with its intended c.q. is used; 6. the defect is the result of – the application of any government regulation concerning the nature or quality of the materials applied – materials or goods used in consultation with the client – materials, goods, working 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 guarantees the soundness of the work performed by it for a period of six months from the date of completion of the work. b. The warranty extends only to the correction, free of charge, of deficiencies found within this period. c. No warranty will be provided on emergency repairs and provisional repairs.
9 Force majeure
9.1 There is force majeure on the part of Exposure Systems if Exposure Systems is prevented from fulfilling its obligations under the agreement or its preparations as a result of war, the threat of war, civil war, riots, terrorism, acts of war, fire, water damage, floods, epidemics, strikes, sit-down strikes, lockouts, seizure, import and export obstructions government measures, defects in machinery, disruptions in the supply of energy, shortage of materials, raw and auxiliary materials, defects in means of transport and transport impediments, all this both in the company of Exposure Systems and of its suppliers and those charged with storage or transport and furthermore due to all other causes beyond the control or risk of Exposure Systems.
9.2 An agreed delivery period or deadline for the performance of work or services will be extended by the period during which Exposure Systems is prevented by force majeure from fulfilling or performing its obligations.
9.3 If the delivery or performance of work or services is delayed by more than twelve months due to force majeure, both Exposure Systems and the client are authorized to dissolve the agreement -for the unperformed portion- subject to the provisions of paragraph 4.
9.4 If the force majeure arises while the agreement has already been partly performed, the client shall keep or accept the part of the goods already delivered or the part of the activities/services already performed and pay the price due for them unless the client demonstrates that the part of the goods already delivered or the activities/services already performed cannot (no longer) be used or utilized effectively by the client as a result of the non-delivery of the remaining goods or the non-performance of the remaining activities/services.q. the activities or services performed cannot (any longer) be used or utilized effectively by the client as a result of the non-delivery of the remaining goods or the non-performance of the remaining activities or services. In the latter case, if due to force majeure the remaining delivery or work or services are delayed by more than twelve months, the client shall have the right to dissolve the agreement even for the part already performed under the obligation to return to Exposure Systems what has already been delivered or performed, at the expense and risk of the client, or to compensate Exposure Systems for the value thereof.
10 Industrial and intellectual property rights
10.1 Exposure Systems retains the industrial and intellectual property rights, including copyright and design rights, relating to the illustrations, drawings, calculations, technical specifications, models, designs, sketches, diagrams, etc. provided by it. These may not be passed on to third parties, in any form whatsoever, without its written consent, made available for inspection or reproduced. Upon request made by Exposure Systems for this purpose, they must be returned without delay.
10.2 In the event of a violation of the provisions of paragraph 1, the client will be liable to pay a fine of €10,000 without any reminder or notice of default being required, without prejudice to Exposure Systems’ right to claim full damages with interest and costs. Penalty paid or due shall be deducted from any damages due with interest and costs.
10.3 Within the framework of an order, Exposure Systems is not obliged to investigate and is not liable for damage caused by infringement of copyright 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 principal, such as drawings, models, designs, etc. The principal shall indemnify Exposure Systems in respect of claims by 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 in the context of an order for its own publicity or promotion unless compelling interests known to Exposure Systems prevent it from doing so.
11 Billing and payment
11.1 Exposure Systems is entitled to invoice even after each partial delivery or partial performance of the agreed work or services.
11.2 Exposure Systems is entitled, in the event of (agreed) delivery in parts, after delivery of the first part, to demand, in addition to payment of this part, payment of all costs incurred for the entire order, such as those of film, moulds and (printing) 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 invoice date without any deduction, discount or setoff.
11.4 The invoiced price shall, however, without any summons or notice of default being required, at all times be due and payable forthwith in the event that the principal is declared bankrupt, applies for a provisional suspension of payments, a request by the principal (natural person) to declare the debt rescheduling scheme applicable is granted by the court, the principal loses the authority to dispose of his assets or parts thereof by attachment, receivership or otherwise, and in the event that the principal fails to meet one or more of his obligations, regardless of whether these arise from an agreement or the law.
11.5 The client shall, without any summons or notice of default being required, be in default by the mere expiry of the payment period.
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. Each time at the end of a year, the amount on which interest is calculated is increased by the interest due for that year.
11.7 If the client fails to meet its payment obligations in a timely manner, it shall also owe the extrajudicial collection costs. These costs amount to at least 15% of the principal amount still due with a minimum of €250. Exposure Systems shall be obliged to prove the costs incurred only to the extent that they exceed the percentage and amount referred to in the preceding sentence.
11.8 Payments made by the client shall always serve to settle all costs and interest owed and then due and payable 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 Except as regards Exposure Systems’ obligation under the warranty referred to in Article 7, Exposure Systems shall not be liable for any direct or indirect material or immaterial damages of any kind whatsoever suffered by the principal or any third party in connection with or arising out of negotiations conducted with Exposure Systems, any contract entered into with Exposure Systems, any error, deficiency or omission on the part of Exposure Systems, any invocation of force majeure by Exposure Systems or any c.q. processed item or service rendered or through any (other) cause whatsoever, unless a. Exposure Systems is insured for damages and such insurance pays out; in such case, liability in its entirety shall always be limited to the amount paid out under such insurance in the case in question; b. the principal or the relevant third party demonstrates that the damage is due to intent or deliberate recklessness on the part of one or more of Exposure Systems’ directors.
12.2 The Client shall indemnify Exposure Systems against any damage that may arise as a result of the Client’s failure to take adequate care of any necessary permits or failure to comply with other legal or other requirements.
12.3 Should it be established in court that the limitation of liability described in paragraph 1 cannot be upheld, the amount to be paid by Exposure Systems in damages – including penalties – shall never exceed the amount paid or owed by the principal to Exposure Systems by virtue of the order or order in question from which the claim for damages arises, excluding VAT. In all cases, however, Exposure Systems shall never be liable for indirect damages and consequential damages including lost profits, missed savings and damages 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) addressed may also invoke them as if the provisions of this article had been stipulated by the employee(s) concerned.
12.5 The Client shall fully indemnify Exposure Systems on demand against all third party claims against Exposure Systems for any fact for which liability is excluded in these Terms and Conditions.
13.1 Exposure Systems may dissolve all or part of the agreement with immediate effect -without being liable to pay any compensation to the principal and without prejudice to Exposure Systems’ right to claim damages from the principal- in the event that the principal is declared bankrupt, applies for a provisional suspension of payments a request from the principal (natural person) for the application of the debt rescheduling scheme is granted by the court, the principal loses the authority to dispose of all or part of its assets as a result of attachment, receivership or otherwise, and in the event that the principal fails to fulfill one or more of its obligations, irrespective of whether these arise from a contract or the law.
13.2 In the cases mentioned in paragraph 1, all amounts owed to Exposure Systems by the client, including damages, shall be immediately and fully due and payable.
14 Joint and several liability
14.1 If the Client consists of more than one (legal) person at any time during the performance of the contract, each of these (legal) persons shall be jointly and severally liable to Exposure Systems for the obligations arising from the contract.
15 Prohibition of assignment and pledge of rights and/or obligations
15.1 The Client may transfer rights or obligations under any agreement with Exposure Systems to, or cause a third party to transfer rights or obligations under any agreement with Exposure Systems only with Exposure Systems’ prior written consent.
15.2 Nor is the client permitted to pledge to a third party any claims of the client against Exposure Systems, on any account whatsoever, unless Exposure Systems has given its written consent. Exposure Systems may grant permission with conditions.
16.1 The client shall not in any way disclose to a third party the agreement and all that comes to its knowledge in connection with the conclusion or performance of this agreement and of which it knows or can reasonably suspect the confidential nature. The previous sentence does not apply to the extent that disclosure is necessary for the performance of this agreement or the client is required to disclose under any legal requirement.
17 Forfeiture of rights of action
17.1 To the extent not otherwise provided for in these General Terms and Conditions, all rights of claim of the Client against Exposure Systems arising from or related to an order or assignment – including claims for compensation for damages and/or penalties – shall in any event expire two years after the day on which the relevant delivered good, work performed and/or service rendered to which the claim relates was invoiced to the Client unless the claim(s) are brought before the competent court within this period.
18 Conversion and provisions that remain in effect
18.1 Should any provision of these terms and conditions be non-binding, the remaining provisions shall nevertheless remain in force. Moreover, such an ineffective clause should be converted into a clause of as much the same purport as possible, which is effective. 18.2 After the termination of the agreement, regardless of its cause, those provisions which by their nature are intended for that purpose shall remain in force.
19 Applicable law and competent court
19.1 All legal relationships between Exposure Systems and the client are governed by Dutch law. The applicability of the 1980 United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is expressly excluded.
19.2 All disputes, none excepted, that may arise between the parties as a result of the relationships governed by these terms and conditions shall, to the extent that they exceed the jurisdiction of the cantonal court, be submitted to the judgment of the District Court of Zutphen, on the understanding that Exposure Systems is also authorized to submit the dispute to the competent court in the jurisdiction where the principal is based. These general terms and conditions have been filed with the Central Gelderland Chamber of Commerce.