relating to the sale, ordering, delivery and payment of IMPLIVA B.V., Constructieweg 9, 3641 SB Mijdrecht, deposited with the Chamber of Commerce and Industries at Utrecht under registration number 4697.
1. Scope of application
1.1 These General Terms and Conditions are applicable to all offers, sales and deliveries made by Impliva B.V., hereinafter referred to as Impliva, made to third parties, as well as to all work carried out by Impliva under orders from third parties, as well as to all contracts in the broadest sense of the term, entered into between Impliva and third parties. The above-mentioned third parties shall be referred to in what follows as “the purchaser”.
1.2 These General Terms and Conditions shall apply both within as well as outside The Netherlands, irrespective of the domicile of the parties to any contract, or the location of their principal offices, or the place where the agreement has been entered into, or is executed, or should have been executed.
1.3 These General Terms and Conditions are governed solely by the law of The Netherlands. Disputes if any relating to or arising from contracts between Impliva and the purchaser shall, at the option of Impliva, be laid before the competent Court having jurisdiction over the area in which the purchaser is domiciled, or the area in which the principal office of Impliva is located.
1.4 The Terms and Conditions of Purchase, if any, of the purchaser shall not be binding on Impliva to the extent that the same deviate from the present General Terms and Conditions.
1.5 Deviations from these Terms and Conditions, that are applied at any time by Impliva to the advantage of the purchaser, shall never entitle the purchaser to make a claim to the same, or to claim the application of any such deviation for his benefit.
1.6 If any article or part thereof of these General Terms and Conditions become (or are declared to be) invalid, this shall not affect the validity of the other Terms and Conditions.
1.7 By accepting these General Terms and Conditions, the purchaser relinquishes his right to terminate the present agreement as per Volume 6:76 and onwards, of the Civil Code, or as per other legal provisions.
2. Offers
2.1 All offers and price quotations of Impliva whether made orally or in writing, which shall include offers included in a price list, are non-binding, unless expressed agreed otherwise in writing.
2.2 The details provided by Impliva in diagrams, catalogues, drawings or in any other manner, relating to the size, the capacity, the performance, the colour, the material structure, the finish or the results must be treated as approximations, and shall not be binding. Impliva shall not be bound by these specifications, and shall accept no responsibility for any inaccuracies in these data.
3. Orders/Contracts
3.1 Order shall mean: every agreement with Impliva, irrespective of whether Impliva thereby undertakes to carry out work, or to make personnel, material or space available, or to render any other service whatsoever, all of the above being understood in the widest sense of the term.
3.2 All the agreements entered into with Impliva shall only be binding after Impliva has confirmed the same in writing. Additions or changes to the above-mentioned agreements shall only be binding on Impliva after and to the extent that Impliva has accepted and confirmed the same in writing. Only the Board of Directors of Impliva, and such other person expressly authorised by the Board of Directors in this regard is competent and authorised to enter into agreements in the name of Impliva.
3.3 Unless expressly agreed otherwise in writing, Impliva shall at all times be entitled to have the order executed in whole or in part by third parties. These Terms and Conditions shall operate for the benefit of such third party subject to the condition that Impliva authorises such third party in writing to make claims on the basis of these Terms and Conditions, provided that such authorisation shall not nullify any obligation vis-à-vis Impliva.
4. Liability
4.1 The execution of an order shall be done entirely at the risk and responsibility of the purchaser, even in case of fault or negligence on the part of Impliva, its personnel or third parties engaged by it. Impliva shall only accept liability in the case of wilful action or fault tantamount to wilful action of Impliva itself, or its personnel, or other persons included in its scope of responsibility.
4.2 The purchaser shall be responsible for all damage or prejudice caused to any person as a result of events that occur during or that are in any manner related to the execution of the order, no matter by whom caused, and the purchaser fully indemnifies Impliva against the claims of third parties in this regard.
4.3 This exclusion of liability of Impliva and the corresponding indemnification obligations on the part of the purchaser or the client are general in nature, and shall also apply in favour of Impliva’s personnel and such third parties that Impliva may have engaged for the execution of the order.
4.4 For goods subject to a guarantee certificate, the terms and conditions specified in such certificate shall be applicable.
4.5 If Impliva is liable to pay compensation for any other reason on the basis of the agreement, the damage compensation that is payable by it shall always be limited to the maximum of the invoice amount (excluding Value Added Tax (VAT)) for the goods or services in question.
4.6 Any claim based on the guarantee conditions as well as on these Terms and Conditions shall not operate to suspend the payment obligations of the purchaser vis-à-vis Impliva.
4.7 In particular, the purchaser indemnifies Impliva against all claims of third parties on the basis of any intellectual property rights claimed by such third parties on the products and/or components thereof offered and supplied by Impliva. For these purposes, intellectual property rights shall mean but not be limited to, among other things, patent, trademark, model rights and copyright.
5. Delivery period and place of delivery
5.1 The delivery periods mentioned in the offers, confirmations and agreements are indicative and have been specified to the best of Impliva’s knowledge, and although every effort will be made to meet such delivery deadlines, the same shall not be binding on Impliva.
5.2 If these delivery periods are not met for any reason whatsoever, the purchaser shall never obtain a right to damage compensation, or termination of the agreement, or to non-fulfilment of any obligation that arises under the agreement in question or under any other agreement whether or not associated with this agreement.
5.3 The delivery periods mentioned in this agreement shall be extended in all cases with the period for which the client is in default in connection with any obligation vis-à-vis Impliva, or by the period for which Impliva is entitled to claim suspensive law or force majeure.
5.4 If the delivery period is exceeded to an excessive degree, subject to the discretion of Impliva on the matter, Impliva shall discuss the matter with the purchaser.
5.5 Delivery shall take place free of cost and freight ex-Stores of Impliva or at a different location to be specified by Impliva, unless expressly agreed otherwise in writing.
5.6 If the purchaser does not accept the goods sold or services provided by Impliva after the same have been offered to him, the same shall remain under the possession of the purchaser for a period of 3 weeks. During this period, the goods shall be stored on account and risk of the purchaser.
5.7 If the purchaser does not fulfil an obligation arising under this agreement or under a different agreement associated with the order, or fails to fulfil such obligation within the required time, after having been issued with a notice of default, Impliva shall be entitled to suspend execution of the agreement without need for judicial intervention, and without Impliva being liable to pay damage compensation for such suspension.
5.8 The choice of the means of transport to be used shall be subject to the discretion of Impliva.
6. Transportation and transport risks
6.1 The cost of transportation of goods ordered from Impliva shall be borne by the purchaser. The freight costs shall be charged to the purchaser unless expressly agreed otherwise in writing.
6.2 All goods ordered from Impliva shall be transported at the risk of the purchaser from the moment of despatch. Even where carriage and freight paid delivery has been agreed, the purchaser shall be liable for all damage that may occur during transportation.
6.3 The goods shall only be delivered at the ground floor. If goods need to be delivered otherwise than at the ground floor, the extra costs associated in the same shall be borne entirely by the purchaser.
6.4 The purchaser must examine the goods to determine their condition immediately upon the arrival of the same. If damage to the goods or the material is found, he should take all the necessary steps to obtain damage compensation from the transporter.
7. Prices and costs
7.1 Impliva shall separately specify a price or rate, hereinafter referred to as “the price”, for each order. This price shall only be regarded as the amount to be paid for the work to be done by Impliva, and shall include the costs normally associated with the same. The prices specified in the offer are based on the cost price factors, market rates, wage levels, tax rates, duties, charges, freight, etc. as known at the time. If any of these price factors undergo an increase, Impliva shall be entitled to modify sales price accordingly.
7.2 The price shall not include levies imposed by the Government or other authorities, including fines, insurance premia, etc.
7.3 Impliva shall be entitled to demand advance payments or security deposits or other security (for example in the form of a bank guarantee), and shall be entitled to suspend work until the security demanded is provided.
8. Payment terms and conditions
8.1 Unless expressly agreed otherwise in writing, payment against the invoice/s sent by Impliva must be paid within 30 days of the date of the invoice, without any deductions or any other form of compensation. The period of 30 days represents a total period. If payment is not made in time, the client shall be deemed to be in default without need to issue reminders or notice of default.
8.2 Payment made against an invoice will first be applied to cover the costs, and then the interest that may be due and finally the principal sum and the current interest.
8.3 All payments must be made without any deductions or set-offs at the office of Impliva or into an account or giro transfer account to be specified by Impliva.
8.4 Discounts can only be given after the same have been agreed in writing between Impliva and the purchaser. Unless otherwise agreed in writing, such discounts shall be one-time discounts. In subsequent transactions therefore, no claim may be made to discounts that were granted earlier.
8.5 As soon as the client is in default in respect of one or more obligations vis-à-vis Impliva, all the claims of Impliva that are not as yet payable shall become instantly claimable.
9. Complaints
9.1 Complaints whether relating to the supply of goods or services or to invoice amounts, must be notified to Impliva in writing, by registered letter, within 8 days of the receipt of the products, services or invoices in question, along with detailed information about the facts on which the complaints are based. The right of the purchaser to register complaints shall lapse if the goods in question have been processed and/or worked by him.
9.2 The purchaser must give Impliva the opportunity at all times to investigate the justness of the complaint. The purchaser shall not, on the ground of a complaint about a particular product or service, be entitled to suspend or refuse payment for products other than those to which the complaint relates, or to refuse or suspend payment for the products to which the complaint relates.
9.3 The purchaser must notify Impliva about any discrepancies that may be found between the goods actually delivered and the consignment note immediately after delivery if the purchaser signs the consignment note, the right of the purchaser to delivery as well as damage compensation shall lapse.
9.4 If a complaint is made within the period mentioned in 9.1, the purchaser shall lose this right, and will be deemed to have approved the delivery made. If Impliva is of the opinion that the complaint has been justly made, it shall have the right to pay the purchaser an amount of money that the parties have mutually agreed as damage compensation, or to make a fresh delivery subject to the continuation of the existing agreement, with the purchaser being obliged to return the items wrongly or improperly delivered, free of cost and freight, to Impliva. The above shall be subject to the discretion of Impliva.
9.5 Impliva shall only be bound to entertain complaints that have been made in time, if the purchaser has fulfilled all the obligations vis-à-vis Impliva arising under any agreement between him and Impliva.
9.6 Returned deliveries that are not adequately stamped or packed shall be refused by Impliva. All return deliveries shall be made at the risk and account of the purchaser.
10. Compensation in case of late payment or non-payment
If the payment of invoice sent is not made (fully) within 30 days after the due date, the purchaser shall be deemed to be in default by action of law, unless expressly agreed otherwise, and Impliva shall have the right, without need to issue a notice of default, to charge the purchaser interest at the rate of 1.5% per month or part thereof on the amount owed by the purchaser, without prejudice to the other rights that Impliva has, including the right to recover all the costs related to the recovery as well as judicial and extra-judicial (collection) costs. The extra judicial costs shall be fixed at a rate that is set by the Dutch Legal Society at a minimum of NLG 500, without prejudice to the right of Impliva to charge the purchaser for all the damage suffered by it.
11. Reservation of right
11.1 Impliva reserves to itself the ownership of all the products delivered or to be delivered by Impliva to the purchaser. The ownership of these products shall only be transferred to the purchaser after the purchaser has fulfilled the compensation claims of Impliva under this agreement or under earlier or subsequent agreements of a similar nature.
Impliva also continues to remain the owner of the products delivered or still to be delivered, until the purchaser pays for the work that has been done or that remains to be done under similar agreements, and as long as the purchaser has not made good any shortcomings in the fulfilment of such agreements, which shall include claims relating to fines, interests and costs. If the purchaser is in default in the fulfilment of his obligations, Impliva shall have the right to take back all the goods delivered by it, whether the said goods have been paid for or not, in which case, the purchaser shall allow Impliva to do so, without there being any need to issue a warning or notice of default. The purchaser authorises Impliva to obtain access to the premises or the buildings of the purchaser in order to collect the products delivered by Impliva. The costs that Impliva may incur for recovering its products shall be borne by the purchaser without prejudice to the right of Impliva to compensation, which shall include compensation for loss incurred, loss of profits, interest, etc.
11.2 If Impliva has good ground for an apprehension that the client may not fulfil his payment obligations to Impliva, Impliva shall be entitled to take back the products delivered under reservation of title. After accepting the goods back, the client shall be credited for the market value of the products taken back. The market value shall in no case the higher than the original purchase price reduced by the costs and other expenses incurred by Impliva in connection with the recovery of the products, in respect of which Impliva can claim set-off from the client.
11.3 Impliva reserves to itself the right to retain goods, tools, materials, cars, documents that it may have obtained possession of from a purchaser, until the purchaser fulfils his financial obligations vis-à-vis Impliva.
12. Force majeure
12.1 Force majeure relieves Impliva from its obligations vis-à-vis the purchaser. Force majeure may be said to exist if Impliva is prevented from performing its obligations or to make the necessary preparations for the same as a consequence of circumstances beyond the control of Impliva, such as, but not limited to, the production process, war, including war outside The Netherlands, rebellion, epidemics, fire, disruptions in traffic, weather conditions, strikes, lock-outs, loss or damage during transport, delays during transport, accident or illness of personnel, limitations on imports or other limitations imposed by the authorities, and such other events or circumstances that Impliva cannot reasonably be required to fulfil its obligations under the contract
12.2 If the agreement cannot be executed due to force majeure, Impliva shall have the right, without the need for judicial intervention, to suspend the execution of the agreement for a period not exceeding 6 months, or to terminate the agreement either in whole or in part, without Impliva being bound to pay damage compensation as a result of the same.
13. Termination of contract
If a purchaser cancels an order or contract, he shall be liable to pay Impliva: 20% of the value of the order or contract, subject to a minimum of NLG 200, within 30 days after Impliva sends him an invoice for the same, without prejudice to Impliva’s right to demand full damage compensation and/or performance of the agreement.
14. Consignment on approval
Except where Impliva confirms the same in writing in advance, the goods shall be treated as consignments on approval for shows, exhibitions and for other purposes to be indicated by Impliva. These General Terms and Conditions shall also apply to consignments on approval.
15. Special products
15.1 If Impliva obtains an order from the client to deliver products on which a (printed) image or other configuration, on being requested by the client to do so, the client must ensure that clear instructions and reproducible material of good quality required for the execution of the order are made available to Impliva well in time.
15.2 Impliva shall only be bound to send a proof for correction or sample for approval to the client if the client specifically asks for the same in writing before or after issuing the order. In such case, Impliva undertakes to show the client a proof for correction or a sample, which proof or sample will be deemed to have been approved by the client if the client does not reject the same within 5 working days, together with a mention of the reasons for the same. The client agrees in advance to accept minor deviations from the proof for correction or sample. Minor deviations shall include but not be limited to differences in colour shades. Such deviations shall not confer any rights on the client against Impliva.
15.3 All costs incurred for the work to be done by Impliva in assembling, processing of processed products shall be borne by the client.
15.4 Impliva shall be entitled to deliver not more than 5% more or less than the number of processed products ordered by the client, and to charge the client for the same.
15.5 All intellectual property rights, which shall include but not be limited to copyright, model rights, etc. that relate to or are based on the products processed by Impliva, shall be held by Impliva.
15.6 The client shall transfer to Impliva the property in all the (auxiliary) materials that it has made available to Impliva, and which Impliva requires for processing the products that are to be delivered to the client, which shall include but not be limited to patterns, films and goldmasters. If there are any requirements (formalities) that need to be completed before the above can be transferred to Impliva, the client shall co-operate in efforts directed towards completing or fulfilling such requirements.
15.7 All the costs associated with the work to be done by Impliva in connection with the assembly and the processing of processed products shall be invoiced separately to the client.
15.8 The provisions contained in Heading 7, Part 1 of Volume 7 of the Civil Code, as well as all the other provisions of Volume 7 of the Civil Code shall not apply to the work that Impliva carries out for the client as described in the present article.
In case of any disputes the Dutch text of the General Conditions will be given preference over the English text.
