General Delivery and Payment Conditions of Pre Press Boulevard
Article 1 Definitions
The terms used in these General Terms and Conditions are defined below in alphabetical order (identified by the fact that they are capitalized in the text):
1. General Terms and Conditions: these general delivery and payment conditions of Pre Press Boulevard.
2. Client: the natural person or legal entity with whom or which Pre Press Boulevard enters into an intermediary agreement, supply agreement, and/or agreement for services.
3. Party/Parties: Pre Press Boulevard and/or the Client.
4. Pre Press Boulevard: the private limited company Pre Press Boulevard BV, listed in the Commercial Register of the Chamber of Commerce for South Limburg in Maastricht under number 14069363.
Article 2 General
1. These General Terms and Conditions apply to all offers, proposals, services, activities, agreements, and/or other legal relationships between Pre Press Boulevard and the Client.
2. Pre Press Boulevard expressly rejects the applicability of the Client’s general terms and conditions.
3. Any variations from these General Terms and Conditions are valid only if these are expressly agreed in writing by persons who are authorized to represent the Parties for this purpose.
4. These General Terms and Conditions also apply to all legal relationships between the Client and third parties who perform work for the Client on Pre Press Boulevard’s instructions.
5. If one or more provisions of these General Terms and Conditions are void or nullified, the other provisions of these General Terms and Conditions remain fully applicable.
In that case, Pre Press Boulevard and the Client shall consult in order to agree on new provisions to replace the void or nullified provisions, for which consultation the aim and purpose of the original provision(s) are to be taken into account if and insofar as possible.
6. If Pre Press Boulevard acts as an intermediary between the Client and a third party, as a seller/advertiser, for example, Pre Press Boulevard is not a party to the legal relationship between the Client and the third party.
Pre Press Boulevard is not responsible in any case for the obligations of the Client and/or third party arising from any legal relationship between them.
Article 3 Offers and proposals
1. Offers and/or proposals by Pre Press Boulevard are made without obligation and Pre Press Boulevard may withdraw and/or amend them before they expire.
2. All offers and/or proposals made by Pre Press Boulevard are valid for one (1) month, unless stated otherwise.
3. An agreement between Pre Press Boulevard and the Client is concluded only if Pre Press Boulevard has confirmed acceptance of the order in writing or if Pre Press Boulevard has commenced performance of the agreement.
4. Unless indicated otherwise, the prices stated in the aforementioned offers and proposals exclude VAT and other government-imposed levies, as well as any other costs incurred for the purpose of the agreement, including insurance, postage, and administration costs.
5. If the acceptance differs from the content of the offer and/or proposal made by Pre Press Boulevard, Pre Press Boulevard is not bound by the acceptance.
The agreement is then not concluded in accordance with the altered acceptance, unless Pre Press Boulevard states otherwise.
6. A combined quotation does not oblige Pre Press Boulevard to execute part of the order at a corresponding portion of the stated price and/or conditions.
7. Offers and/or proposals made by Pre Press Boulevard do not automatically apply to future agreements between Pre Press Boulevard and the Client.
Article 4 Performance of the agreement
1. Pre Press Boulevard shall do its utmost to perform the agreement with the Client to the best of its knowledge and ability.
2. If and insofar as required for the proper performance of the agreement, Pre Press Boulevard is entitled to arrange for third parties to perform certain work.
3. The Client shall ensure that all information which Pre Press Boulevard has indicated is necessary and/or which the Client reasonably ought to understand is necessary for the performance of the agreement, is provided to Pre Press Boulevard in due time.
4. If the information needed for the performance of the agreement is not provided to Pre Press Boulevard in due time, Pre Press Boulevard is entitled to suspend the agreement and/or the Client must pay the additional costs arising from the delay to Pre Press Boulevard at its usual rates.
Article 5 Amendment of the agreement
1. If it becomes clear during the performance of the agreement that the work to be carried out needs to be altered or supplemented for proper performance, the Parties shall consult with each other in due time regarding the need and options for amending the agreement.
2. If the Parties agree that the agreement is to be amended or supplemented, this may affect the completion date and/or manner of performance. Pre Press Boulevard shall notify the Client of this fact as soon as possible. If the situation arises, the Client declares its acceptance of such amendments in advance.
3. If the amendments or supplements to the agreement are likely to have financial and/or qualitative consequences, Pre Press Boulevard shall inform the Client accordingly.
4. If the agreement is amended or supplemented where a fixed price has been agreed, Pre Press Boulevard shall indicate whether and to what extent amending or supplementing the agreement will cause the fixed price to be exceeded.
Article 6 Contractual term; completion time
1. The agreement between Pre Press Boulevard and a Client is entered into for the period needed to perform the agreement, unless the Parties expressly agree otherwise in writing.
2. If a period has been agreed for the completion of certain work within the term of the agreement, this is never a strict deadline. If the completion period is exceeded, the Client must give Pre Press Boulevard a written notice of default and a reasonable period within which it is still possible for Pre Press Boulevard, given the circumstances of the case, to perform the agreement.
Article 7 Setting of price and rates
1. The price, rates, and any cost estimates exclude VAT.
2. If Pre Press Boulevard agrees a fixed price or rate with the Client, Pre Press Boulevard is nevertheless entitled to increase this price or rate if it can demonstrate that costs, such as labour costs, have increased significantly or that circumstances have changed significantly between the date of the offer or proposal, on the one hand, and the performance of the agreement on the other hand.
3. If there is an increase in the price/rates, the Client is entitled to terminate the agreement if this increase occurs within three (3) months of entering into the agreement. After the end of this period, the Client is entitled to terminate the agreement if the increase exceeds ten per cent (10%).
4. The Client is not entitled to terminate the agreement if the price or rate increase arises from a right of Pre Press Boulevard under applicable legislation or generally binding rules.
5. In such a case, Pre Press Boulevard shall notify the Client of a price or rate increase in writing.
6. If the Client does not wish to accept the price or rate increase that Pre Press Boulevard has announced, the Client may give written notice of termination of the agreement within seven (7) business days of the aforementioned notice.
Article 8 Payment
1. If an agreement is concluded between Pre Press Boulevard and the Client, the Client is obliged to immediately pay Pre Press Boulevard the total agreed amount (100%) in advance for the intermediary activities, supplies, and/or services to be provided by Pre Press Boulevard for the Client.
2. Payment must be made in the manner indicated by Pre Press Boulevard and in the currency of the invoice.
3. The Client may not suspend and/or set off its payment obligations in any way.
4. The Client is in default by operation of law if Pre Press Boulevard does not receive the payment due from the Client within the payment period. The Client then owes Pre Press Boulevard interest at 1.5% per month, unless the rate of statutory interest is higher, in which case the Client owes the statutory interest. The interest on the due and payable amount is calculated from the date on which the Client is in default until the full outstanding amount is paid in full.
5. If the Client is liquidated, declared bankrupt, has assets attached, or is granted a moratorium on the payment of debts, all claims that Pre Press Boulevard has against the Client become immediately due and payable.
6. Pre Press Boulevard is entitled to allocate payments made by the Client firstly in reduction of the costs, followed by the accrued interest and, lastly, the principal sum and accumulating interest. Pre Press Boulevard may refuse an offer of payment, without being in default, if the Client designates a different order for allocating the payment. Pre Press Boulevard may refuse the full repayment of the principal sum, if the accrued and accumulating interest, as well as the costs, are also not paid.
7. All judicial and extrajudicial collection costs that Pre Press Boulevard incurs due to the failure of the Client to fulfil its obligations are payable in full by the Client. If the Client fails to comply or is in default with the punctual fulfilment of its obligations, the Client must pay a fixed amount of 15% of the principal sum, including VAT and interest, to Pre Press Boulevard, unless the actual costs are higher. As soon as the Client is in default, the fixed amount, in the absence of any further evidence, is always owed by the Client to Pre Press Boulevard.
8. The place of payment in all cases is Sittard in the Netherlands.
Article 9 Retention of title
1. All items delivered by Pre Press Boulevard, including any designs, sketches, drawings, films, software, electronic or other files, etc. remain its property until the Client has fulfilled all obligations arising from all agreements concluded with Pre Press Boulevard.
2. The Client is not entitled to pledge or otherwise encumber the items subject to the retention of title, either under the law of obligations or under property law.
3. If third parties attach items subject to the retention of title or wish to establish or enforce rights on or against those items, the Client is obliged to notify Pre Press Boulevard of this immediately, to do all that is necessary to safeguard Pre Press Boulevard’s property, and to inform third parties that Pre Press Boulevard is the owner.
4. The Client undertakes to insure and keep the items delivered subject to the retention of title insured against damage, including fire, explosion and water damage, and theft. The Client is obliged to allow Pre Press Boulevard to inspect the applicable policy conditions, immediately on request.
5. If Pre Press Boulevard exercises the rights of ownership referred to in this article, the Client already gives unconditional and irrevocable permission for Pre Press Boulevard or its designated third parties to enter the places where Pre Press Boulevard’s property is located and to repossess the goods.
6. The retention of title referred to in this article also remains in force if the Client has fulfilled all existing due and payable obligations at any moment, but is expected to have future obligations towards Pre Press Boulevard.
Article 10 Inspection, complaints
1. The Client must submit complaints regarding the work and/or services performed by Pre Press Boulevard within eight (8) days of discovery of the reason for the complaint, but no later than fourteen (14) days after the relevant work and/or services have been completed, to Pre Press Boulevard in writing. A notice of default must contain as detailed a description of the shortcoming as possible, so as to enable Pre Press Boulevard to respond adequately and take action.
2. If a complaint is valid, Pre Press Boulevard must proceed with repairs within a period that is reasonable under the given circumstances. If repairs are not possible, the provisions of Articles 13-16 apply by analogy.
Article 11 Suspension and termination
1. Pre Press Boulevard is entitled to suspend any of its obligations or terminate the agreement, if:
a) the Client fails to fulfil, or fails to completely fulfil, the obligations under the agreement;
b) Pre Press Boulevard has good reason to fear that the Client will not fulfil the obligations, will only partially fulfil the obligations, or will not fulfil them properly;
c) Pre Press Boulevard requests the Client to provide security for the fulfilment of its obligations but this security is not provided or is inadequate.
2. Pre Press Boulevard is further entitled to terminate, or to arrange for the agreement to be terminated, if circumstances of such a nature arise that the performance of the agreement is impossible or, in accordance with criteria of reasonableness and fairness, can no longer be required, or if circumstances of such a nature arise that the unaltered maintenance of this agreement cannot reasonably be required.
3. If the agreement is terminated, Pre Press Boulevard’s claims against the Client become immediately due and payable. If Pre Press Boulevard suspends the performance of the obligations, it retains its rights and claims under the agreement and by law.
Article 12 Return of the provided items
1. If Pre Press Boulevard has provided items to the Client for the performance of the agreement, the Client is obliged to return these items within fourteen (14) days in their original, undamaged condition, free of any defects and in full. If the Client fails to comply with this obligation, all the ensuing costs are payable by the Client.
2. If the Client, for whatever reason, and after a demand to that effect, still fails to comply with the obligation to return the items as referred to in Article 12, paragraph 1, the Client is liable for all ensuing costs and damage.
Article 13 Liability
1. Although Pre Press Boulevard shall do its utmost at all times to perform the agreement to the best of its knowledge and in accordance with high standards, it cannot warrant the conformity and completeness of the intermediary activities, supplies, services, advice, documents, and/or information. Pre Press Boulevard is not liable for damage that arises from the non-conformity, inaccuracy, and/or incompleteness of the intermediary activities, supplies, and/or services provided by it.
2. Pre Press Boulevard does not warrant in any case that the intermediary activities, supplies, and/or services will yield the required result. Pre Press Boulevard is never liable for the consequences of using or following advice, documents, and/or information.
3. In particular, Pre Press Boulevard is not liable for damage, of any nature:
a. arising from the use of Pre Press Boulevard’s website services;
b. arising from changes in Pre Press Boulevard’s services in or on its website;
c. arising from goods or services of sellers/advertisers and/or an agreement concluded between a seller/advertiser and the Client/purchaser;
d. arising from incorrect information and/or typing errors provided or made by sellers/advertisers or the failure by the sellers/advertisers concerned to comply with any duty to provide information;
e. in a situation where it transpires that a seller/advertiser has offered an item unlawfully obtained from Pre Press Boulevard as an intermediary or sold it as an intermediary, without Pre Press Boulevard’s knowledge;
f. arising from defects and/or damage to or caused by items in respect of which Pre Press Boulevard has acted as an intermediary;
g. arising from the unavailability of Pre Press Boulevard’s website, for whatever reason;
h. if Pre Press Boulevard has worked on the basis of inaccurate and/or incomplete details provided by the Client or a seller/advertiser;
i. arising from the use of goods or services provided by Pre Press Boulevard;
j. arising from damage or loss of goods and damage caused by delays, in relation to goods that Pre Press Boulevard is transporting on the Client’s instructions;
k. that has arisen and/or been caused in connection with the entrusted work to any property of the Client, including business or other premises or grounds and/or other items that are located in the business or other premises or on the grounds of the Client, unless this damage has been caused by intentional acts or the gross negligence of Pre Press Boulevard.
4. If Pre Press Boulevard is liable notwithstanding the provisions of these General Terms and Conditions, it will be liable for direct damage only, which means:
a) the reasonable costs of determining the cause and extent of the damage, insofar as that determination relates to damage within the meaning of these terms and conditions;
b) any reasonable costs incurred to have Pre Press Boulevard’s defective performance conform to the agreement, unless this defective performance cannot be attributed to Pre Press Boulevard;
c) the reasonable costs incurred to prevent or limit damage, insofar as the Client can demonstrate that these costs have limited the direct damage as referred to in these General Terms and Conditions.
5. Pre Press Boulevard is not liable in any case for indirect damage, consequential damage, lost profits, lost savings, or business interruption loss.
6. Any liability of Pre Press Boulevard is limited to the amount that its liability insurance pays out in the particular case, including the excess that Pre Press Boulevard must pay in relation to that insurance. If the aforementioned insurance does not pay for any reason, any liability is capped at the invoice value of the order, alternatively the portion of the order to which the liability relates.
7. Notwithstanding the provisions of Book 6, Article 89 of the Dutch Civil Code, any claim of the Client against Pre Press Boulevard lapses in any case six (6) months after the date on which the Client must reasonably have been aware of the liability arising and, if that cannot be established, one (1) year after the date of the last invoice in any case.
8. The Client indemnifies Pre Press Boulevard against any claims of third parties who suffer damage in connection with the performance of the agreement where the cause cannot be attributed to Pre Press Boulevard.
9. The provisions of this Article 13 constitute a third-party clause under Book 6, Article 253 of the Dutch Civil Code for the employees and/or third parties hired by Pre Press Boulevard. The employees and/or third parties have already given the Parties advance notice that they accept this third-party clause as referred to in Book 6, Articles 253(2) and 254 of the Dutch Civil Code.
Article 14 Indemnities
1. The Client indemnifies Pre Press Boulevard against third-party claims relating to the intellectual property rights on materials or information provided by the Client that are used in the performance of the agreement.
2. If the Client provides information carriers, electronic files, software, etc. to Pre Press Boulevard, it warrants that these information carriers, electronic files, or software are free from viruses and defects.
Article 15 Risk transfer
The risk of loss or damage to the items that are the object of the agreement passes to the Client when these items are legally and/or physically delivered to the Client and thus fall under the control of the Client or third parties designated by the Client.
Article 16 Force majeure
1. Pre Press Boulevard is not obliged to comply with any obligation if it is prevented from doing so by a circumstance that is not its fault and for which it is not accountable by law, a legal act, or according to generally accepted standards.
2. For the purpose of these General Terms and Conditions, force majeure, in addition to how it is defined in legislation and case law, means all external causes, foreseen or unforeseen, over which Pre Press Boulevard cannot exercise control, but as a result of which Pre Press Boulevard is unable to comply with its obligations. This includes strikes in Pre Press Boulevard’s business.
3. Pre Press Boulevard is also entitled to rely on force majeure if the circumstance that prevents compliance, or further compliance, commences after Pre Press Boulevard should have already complied with its obligations.
4. Pre Press Boulevard may suspend its obligations under the agreement for as long as the force majeure situation lasts. If this period lasts for longer than two (2) months, either of the Parties is entitled to terminate the agreement without being obliged to compensate the other Party for any damage.
5. Insofar as Pre Press Boulevard has performed or will partially perform obligations under the agreement when the force majeure commences, and a separate value can be attached to the partial performance that has or will be rendered, Pre Press Boulevard is entitled to issue a separate invoice for the partial performance that has or will be rendered. The Client is obliged to pay this invoice.
Article 17 Confidentiality
1. The Parties are obliged to observe secrecy with regard to all confidential information that they have received from each other or another source in relation to their agreement. Information is confidential if the other Party confirms this or the confidentiality arises from the nature of the information.
2. If Pre Press Boulevard is obliged, on the basis of a statutory provision or court ruling, to provide information to third parties designated by law or the competent court, Pre Press Boulevard is authorized to provide this information without being obliged to provide any compensation or indemnity. The Client is also not entitled to terminate the agreement in such a case.
Article 18 Intellectual property and copyright
1. Notwithstanding the other provisions of these General Terms and Conditions, Pre Press Boulevard retains all intellectual property rights and powers to which it is entitled under the Copyright Act (Auteursrecht), the Patent Act (Octrooiwet), or any other statutory provisions that give rise to intellectual property rights.
2. All documents that Pre Press Boulevard provides, including reports, opinions, agreements, designs, sketches, drawings, software, etc., are intended to be used exclusively by the Client and may not be duplicated, published, or disclosed to third parties without Pre Press Boulevard’s prior and written consent.
3. Pre Press Boulevard reserves the right to use knowledge acquired for the performance of the work for other purposes, insofar as this does not cause any confidential information of the Client to be disclosed to third parties.
Article 19 Samples and models
1. If the Client is shown a sample or model, this is deemed to have been provided for indicative purposes only.
2. Likewise, any reference to area or other measurements and specifications in an agreement for services relating to a specific immovable property, is deemed to be indicative only, without the item to be delivered having to conform to such specifications.
Article 20 No takeover of staff
During an agreement and for a period of one year after its termination, the Client may not, in any way, unless Pre Press Boulevard has given written permission for this purpose, employ or otherwise arrange for employees of Pre Press Boulevard, or of companies that Pre Press Boulevard has used for the performance of this agreement and who are or were involved in that performance, to work for
the Client, directly or indirectly. If this provision is contravened, the Client shall forfeit an immediately due and payable penalty, which cannot be reduced, to Pre Press Boulevard of EUR 25,000.00 for each contravention and EUR 5,000.00 for each day or part of a day that the individual contravention continues.
Article 21 Disputes
1. The Limburg District Court in the Netherlands has sole jurisdiction to hear disputes between the Parties.
2. The Parties may approach the court only after they have done their utmost to resolve a dispute by agreement.
Article 22 Applicable law
Only Dutch law, excluding the application of the Vienna Sales Convention, applies to every agreement between Pre Press Boulevard and the Client.