General terms FormArt B.V.
Artikel 1 Definities
In this general terms, is meant by:
FormArt B.V. (also registered under the same name at the chamber of commerce) located and having its registered offices at Dragonder 15b 5554 GM Valkenswaard
A natural person or a legal person with whom FormArt has closed an Agreement with, or with whom FormArt is in negotiation about closing an Agreement.
The more or less specified work activities/assignment and the taxation of costs that are connected to these work activities/ assignment.
Agreement and/or assignment to provide services and/or work activities between FormArt and the Customer.
A proposition made to the customer, to enter into an agreement, determined in such a way that an agreement arises immediately at the acceptance.
Article 2 Applicableness
a. These General terms (hereinafter to be referred to as: the Terms) apply to the realization, the content and the compliance off all closed agreements between the Customer and FormArt and also apply to every quotation.
b. General (purchase) terms of the Customer only apply if it’s explicitly agreed upon in writing that these will apply with the exclusion of these terms.
c. Possible deviations and/or supplements to these terms are only valid in case they are explicitly agreed upon in writing.
d. The Customer with who has been contracted on the present terms once, agrees to the applicableness of these terms on future quotations and agreements as well.
e. These terms also apply on all agreements with FormArt, for the execution of which, whether on incession of FormArt or not, third parties need to be involved.
Article 3 Quotations, offers
a. Unless otherwise agreed in writing, quotations made by FormArt, whether or not including a designated quote, budget , preproduction costing or similar mentions, are always without obligation and do not obligate FormArt to conclude an agreement with the Customer.
b. Offers of FormArt are always without obligations and can only be accepted without deviations. An offer in any case is considered repudiated in case it is not accepted within one month. Quotations can be repealed by FormArt at any given time.
c. The quotation always needs to be considered as a whole. A composite quotation, consisting of various parts, does not create an obligation to FormArt to partial delivery against a proportional part of the price quoted for the whole.
d. The colours, examples, pictures, drawings, dimension specifications and such, included in the quotation only have an indicative purpose. The Customer cannot derive any rights from this.
Article 4 Prices
a. The prices mentioned in a quotation are excluding turnover tax and possible other government levies, as well as possible costs to be made in the frame of the agreement, including shipment costs, transport costs, postal expenses, and administration costs, unless explicitly mentioned otherwise.
b. The price that FormArt has quoted for its performance applies exclusively for the performance in conformance with the agreed specifications. Deviations and adjustments at contract provision can lead to a price alteration.
Article 5 Price alterations
a. FormArt is entitled to increase the agreed price when one or more of the following circumstances appear after conclusion of the agreement: increase in costs of materials, semi-finished products or services that are needed for the execution of the agreement, increase of shipment costs, of wages, of employers’ costs, social insurances, of the costs involved in other labour terms, introduction of new and increase of existing government levies on raw materials, energy or residues, a considerable alteration in exchange rates or, in general, comparable circumstances.
b. FormArt is entitled to increase the agreed price in case Customer applies changes to the initially agreed specifications, including author corrections or changed instructions after receipt of the assignment. FormArt will cooperate in these changes within reasonable limits, in case the content of the by them to be performed works doesn’t substantially deviates from the originally agreed upon performance.
c. In case for the execution of the agreement, a fixed rate is agreed upon, FormArt will point out to how far the alteration or supplement of the agreement results into overstepping of this amount.
d. FormArt will not be able to charge more costs in case the alteration or supplement of the agreement is the result of circumstances that can be imputed to FormArt.
Article 6 Alterations in the agreement
a. In case during the execution of the agreement it appears that for a proper execution it is necessary to alternate or supplement the work activities, parties will adjust the agreement accordingly in time, and in mutual consultation.
b. In case the alteration of or supplement to the agreement will have financial and/or qualitative consequences; FormArt will notify Customer of this in advance and as soon as possible.
c. The Customer carries the risk of misunderstandings with regard to the content and execution of the agreement in case these find their origin in the Customer not correctly, not completely or incompletely providing specifications or other verbal notifications by a person appointed by the Customer or transferred by any other technical means such as telephone, fax, email and similar transmission media.
Article 7 Realization and Confirmation
a. An agreement between FormArt and the Customer will arise after FormArt – in writing- has accepted an assignment provided by the Customer, resp. confirmed it in an assignment confirmation.
b. In case the acceptance by the Customer deviates from the offer recorded in the quotation, FormArt is not bound to that. The agreement in that event does not arise in accordance with this deviating acceptation, unless FormArt declares to agree with the deviating acceptance in writing.
c. Agreements with or verbal commitments by employees or representatives of FormArt are not binding for FormArt, unless these agreements and/or commitments have been explicitly confirmed by FormArt, in writing.
d. FormArt is entitled to, before execution of the agreement, desire payment security from the Customer, for example by means of a payment of one or more advances. Until the date on which security is provided, FormArt is not obliged to execution of the work activities.
Article 8 Execution
a. The Customer takes care of the timely, correct and complete supply of all information, pieces, data etc., which are of importance for the content and execution of the agreement.
b. FormArt cannot be bound to start the execution of the agreement any sooner than after FormArt has received all the requested information that is of importance for the fulfilment of the assignment.
c. FormArt is not liable to any damage whatsoever that is the result of the by Customer incorrect and/or incomplete information, unless this incorrectness and/or incompleteness should have been knowable to FormArt.
d. FormArt will execute the agreement to the best knowledge and ability and in accordance with the requirements of good craftsmanship. FormArt will strive for a result that is as good and usable for the Customer as possible.
e. Delivery times by FormArt are always pointed out approximately and never count as a fatal term, unless a deadline is agreed upon in writing.
f. In case a delay has occurred in the delivery as a result of an alteration in the wishes on the part of the Customer, the delivery time will be prolonged with a reasonable term.
g. Without prejudice to the above determined with regard to the delivery time, the delivery time will be prolonged with the duration of the delay, that arises at the side of the Customer as a result of the non-fulfilment of the Customer to any obligation coming forth from the agreement or to the cooperation with regard to the execution of the agreement.
h. In case it is agreed that the agreement will be executed in stages, FormArt can hold the execution of parts that belong to a next stage in abeyance until the Customer (a) has explicitly approved of the results of the previous stage in writing and/or (b) has met his/her stage obligations.
i. If and for as far as a good execution of the agreement requires this, FormArt is entitled, after consultation with the Customer, to have certain work activities performed by third parties.
j. The Customer safeguards FormArt from all possible claims from third parties who – in connection with the execution of the agreement, suffer damage that is attributable to the Customer.
k. On FormArts lies no retention with regard to the used affairs and dates, unless both parties explicitly agreed otherwise, in writing.
Article 9 Method of delivery, reservation of ownership
a. Unless otherwise agreed upon, delivery takes place at the location where FormArt practices its business.
b. FormArt is not kept to deliver the created affairs in parts
c. The Customer is bound to provide their complete cooperation in the delivery of the by virtue of the agreement by FormArt to be delivered affairs. The Customer will also be in negligent omission, without being summoned, in case they do not collect the delivered goods after the first request of FormArt or, in case delivery at their address is agreed upon, they refuse to receive the to be delivered goods.
d. The property of the sold items remains of FormArt until the day, and will firstly be transferred to the customer on the day on which customer has settled all indebted purchase prices, interests, costs and compensations for damage relevant of the agreement. Should FormArt nevertheless before a mentioned time, close a new agreement with the Customer, then thereby will be determined that the property of previously delivered goods for greater certainty of new debt remains with FormArt until this new debt will be completely paid. Until mentioned day, all other affairs delivered to the Customer by FormArt, will remain property of FormArt.
e. FormArt has the irrevocable right to, in case of the Customer not fulfilling or faulty fulfilling their obligations; take back the goods already delivered by FormArt, without any formal notice.
f. The Customer is obliged to insure the purchased during the period starting from the moment the costumer can be in the possession of the purchased until the moment that the property is obtained by him. Up until the moment the Customer has gained property, he obligates himself to assign all rights coming from insurance policies, insurance proceeds and/or other damage distributions or claims on third parties mentioned in this article to FormArt.
g. Entirely for account of the Customer are all risks of complete or partial damage, expiry or loss, by any cause whatsoever, of the goods deposited with the Customer on which lies reservation of ownership of FormArt.
h. In case transportation of goods to be delivered as agreed upon, this takes place for account of the Customer, unless carriage paid delivery is agreed upon. The Customer always carries the risk during transportation. Transportation also includes transmission of data by means of the telephone line and any other comparable shipment by means of any technical means. The acceptance of goods of FormArt by the transporter counts as evidence that these were in apparent good condition, unless the contrary appears from the bill of lading or the receipt.
i. FormArt is not responsible for the storage of goods to be delivered, unless explicitly otherwise agreed upon. In case storage takes place, it takes place for account and risk of the Customer.
Article 10 Term of delivery
a. A by FormArt specified term of delivery only has an indicative meaning, unless explicitly pointed out in writing that it concerns a final term. FormArt is – also in case of an agreed upon term, first in default after the Customer has provided them with a formal notice
b. The binding of FormArt to an agreed upon an final term of delivery declines in case the Customer desires a change in the specifications of the work or doesn’t comply with the determined in part a of article 12, unless the minor meaning of the change or the minor delay doesn’t reasonably force FormArt to alteration of the initially scheduled use of production capacity.
c. At the execution of the agreement by FormArt, Customer is bound to do their upmost, all that is reasonably possible or desired to enable a timely delivery by FormArt, such especially in the immediate answering of questions of FormArt, prevention of faulty supplies by due observance of the determined in part 1 of article 12.
d. In the event of non-fulfilment by the Customer of the determined in the previous part of this article and in part c of article 15, an agreed upon final term of delivery is no longer binding and the Customer is in default without a letter of formal notice being necessary. FormArt is then, without prejudice to the rights accruing to him by virtue of law, entitled to hold the fulfilment of the agreement in abeyance until the Customer has redeemed this default. After this, FormArt will still execute the agreement within a reasonable term.
Article 11 Examination at delivery, complaint and/or advertisement
a. The Customer is kept to examine at delivery whether FormArt has properly fulfilled the agreement and furthermore is bound to immediately notify FormArt of this in writing as soon as the contrary appears. The Customer needs to perform the examination and the notification concerned within 14 days after delivery at the utmost. Complaints of any nature whatsoever never suspend the payment obligations of the other party.
b. FormArt is always entitled to set a new, decent performance against an earlier lacking performance, unless the default cannot be restored.
c. The fulfilment of the agreement counts as proper between the parties in case the Customer is in default to perform the examination or the notification as meant in part 1 of this article, in time.
d. In case the 14 day term meant in the first part of this article to standards of reasonableness and equity should be considered short, this term will be prolonged until the first moment on which the examination resp. the notification of FormArt is reasonable possible for the Customer.
e. The performance of FormArt in any case counts as proper in case the Customer has taken the delivered or part of the delivered into use, has edited or processed it, delivered it to third parties, resp. has it taken into use, has it edited or processed or has it delivered to third parties, unless Customer has taken the determined in the first part of this article into consideration
f. The right to claim payment expires in case the aforementioned affairs have been alternated by the Customer or third parties, the Customer has delivered things on to third parties, or when the Customer has not notified his complaint to FormArt within the term as mentioned in art.11.a.
g. After expiry of the term as mentioned earlier in art. 11. a, the delivered performance is ought to be approved and accepted and/or delivered in conformity with the agreement and has the result that the Customer can no longer appeal to default.
h. When the Customer rightfully complains or claims payment, FormArt can adjust the invoiced amount to their own choice, either recover or restore the (delivered) affairs, or compensate the completely or partially not (longer) executing of the agreement by restitution in proportion with payments already settled by Customer.
Article 12 Proof sheets or other samples
a. The Customer is bound to check the whether or not on his request received proof sheets or other samples received from FormArt carefully for mistakes and flaws and send these samples corrected or approved back to FormArt expeditiously.
b. Approval of the samples by the Customer counts as acknowledgement that FormArt has correctly executed the work activities previous to the samples.
c. FormArt is not liable for deviations, mistakes and flaws that remained unnoticed in the by the Customer approved or corrected samples.
d. Every sample manufactured upon request of the Customer will be charged in addition to the agreed price, unless explicitly agreed upon that the costs of these samples are included in the price.
Article 13 Deviations
a. Deviations between the delivered work on the one hand and the original painting, art work, design, drawing, copy or model on the other hand, resp. between the delivered work and the proof sheet or other sample, cannot be a reason for disapproval, discount, dissolving of the agreement or compensation of damage in the event that they are of minor importance.
b. In judging the question whether deviations in the whole of the work should be considered minor, a representative sample from the work will be taken into account, unless it concerns individually determined affairs.
c. Deviations that, considering all circumstances, in reasonableness have no or a subordinate influence on the user value of the work are always ought to be deviations of minor importance.
d. More or less deliveries with regard to the agreed quantity are allowed in case they amount to no more or less than 10%.
e. Deviations in the materials and semi-finished products used by FormArt that are allowed in accordance with the on the delivery of these materials and semi-finished applying general sales terms are considered deviations of minor importance. The terms concerned are open for public inspection at FormArt. Upon request of the Customer, FormArt will send Customer a cost-free copy of these terms.
Article 14 (Author) rights
a. The Customer guarantees that by the fulfilment of the agreement and mainly by scanning & digital recording, the multiplication or the publishing of the affairs received by the customer such as original paintings, art works, copies, models, drawings, photographic recordings, movies, information carriers, computer programs, data files etc., no rights are infringed, which third parties could assert by virtue of the 1912 or other national, supranational or international legislation in the field of the author right or the right of industrial property or the right with regard to the wrongful act. The Customer safeguards FormArt both in and out of right, from all claims third parties by virtue of the above mentioned law and legislations could make.
b. In case with regard to the correctness of the by third parties alleged rights as meant in part 1 of this article there is or remains reasonable doubt, FormArt is entitled, but not bound to dissolve the fulfilment of the agreement until the moment on which by law, it is irrevocably determined that by fulfilment of the agreement, the Customer does not infringe upon these rights. After that, FormArt will execute the order within a reasonable term.
c. With due observance of the interests of the Customer, FormArt has the liberty to use a certain design and/or result for promotion purposes.
d. This article also applies after termination of the agreement, in the event of (complete or partial) dissolving of the agreement and in any other way of termination of the agreement.
Article 15 Payment term, payment conditions
a. Unless agreed otherwise, the customer needs to settle the price and other by virtue of the agreement indebted amounts within 14 days after the invoice date to one of the bank accounts of FormArt, without being able to appeal to any discount, settlement or suspension. In the event of an untimely payment, the Customer is in default without a letter of formal notice by FormArt being required.
b. FormArt is entitled to- in the event of an agreed delivery in parts, after the delivery of the first part, also ask payment for costs made for the entire delivery, such as those of scanning and creating proof sheets/samples.
c. The customer at all times, despite the agreed payment conditions is bound to provide certainty for the payment of the by virtue of the agreement amounts to be paid to FormArt upon the first request of FormArt. The offered certainty will have to be such that the ordering with possible including interests and costs is thoroughly covered and that FormArt will be able to redress on that without problems. A possible later insufficient certainty will have to be completed to sufficient certainty upon the first request of FormArt.
d. In case the Customer doesn’t pay in time, as meant in part 1 of this article, because of the delay, Customer is indebted an interest of 1% per month, starting from the invoice date. FormArt is entitled to charge this interest over each month or part of a month during which Customer has not completely fulfilled their payment obligation.
e. In case of a non-timely payment as meant in part a of this article. In addition to the indebted amount and the connected interest, Customer is bound to a complete reimbursement from both extrajudicial as well as judicial (collection) costs, including costs for lawyers, bailiffs and collection agencies. Customer is bound to completely reimburse the actually made costs to FormArt.
f. For assignments with duration of more than one month, the indebted costs will be charged periodically.
g. The claim for payment of the entire indebted sum in any case is immediately claimable if by or upon order of the Customer, bankruptcy or suspension of payment is filed for, when any goods or claims of the Customer are confiscated and in case of sole proprietorship, when the owner requests admission to the depth repayment Act natural persons or is placed under guardianship, or for as far as the Customer concerns a legal person, this will be dissolved and/or liquidated to information on the part of FormArt.
h. In case Customer is still in default in paying the invoice/invoices that have become claimable fourteen days after the date of the first payment reminder, FormArt is entitled to hold their (partial) performance coming from this agreement in abeyance until the invoice/invoices concerned are integral/settled, without FormArt being bound to the payment of any compensation for damage against the Customer.
Article 16 Withdrawal and complete or partial dissolving of the agreement
a. FormArt is entitled to completely or partially dissolve the agreement or to hold the execution of the agreement in abeyance, without being bound to payment of any compensation for damage, in the following events:
– when the Customer doesn’t fulfil or doesn’t completely fulfil the obligations from the agreement;
– when after termination of the agreement, to FormArt notified circumstances give good reasons to fear that the Customer will not fulfil his obligations coming forth from this agreement. In case there are good reasons to fear that the Customer will only partially, or not properly fulfil their obligations, holding in abeyance is only allowed, for as far as the failure to fulfil obligations justifies this;
– the Customer during entering into the agreement is requested to provide certainty or to make a down payment and this certainty is insufficient or failed to come.
– When the Customer files for suspension of payment;
– when the Customer is in a state of bankruptcy;
– in case of liquidation and/or dissolving of the Customer;
– when movable or immovable properties of the Customer are confiscated.
b. Further, FormArt is entitled to dissolve the agreement in case circumstances occur, that are of such nature that fulfilment of the agreement is impossible, or to standards of reasonableness and equity can no longer be demanded from FormArt, or in case any other circumstances occurs, which are of such nature, that unchanged maintenance of the agreement in all reasonableness cannot be expected.
c. When FormArt has completely or partially dissolved the agreement ex article 16.a or 16.b, the Customer is indebted a price for work activities already carried out by FormArt that are in reasonable relation with the offered amount.
d. FormArt always reserves the right to (also) claim (complete) compensation for damages.
Article 17 Confidentiality
a. Both parties are bound to treat facts and circumstances that have come to the knowledge of the other party in the frame of the agreement closed between the parties, confidential.
b. Facts and circumstances are ought to be confidential, in case this is mentioned by the other party, or if this would come forth from the nature of the information concerned.
c. Parties will constraint their obligations based on this article to all third parties hired by the parties.
Article 18 Property of production means etc.
a. All production means, semi-finished products and resources manufactured by FormArt will remain property of FormArt, also if they are mentioned as a separate post on the quotation, in the offer or on the invoice.
b. FormArt is not bound to hand over the affairs meant in part a to the other party.
c. FormArt is not bound to store the affairs meant in the first part of this article for the Customer. In case FormArt and Customer will agree that these things will be stored by FormArt, this will proceed for the duration of one year at the upmost and without FormArt guaranteeing the suitability for repeated use.
Article 19 Property counterparty, right of pledge
a. FormArt will store the affairs Customer trusted FormArt with in the frame of meeting the agreement with the care of a good custodian.
b. Without prejudice to the determined in the previous part of this article, during the storage, Customer carries all risks with regard to the affairs meant in part 1. If wanted, Customer needs to close off insurance for this risk himself.
c. Customer provides FormArt with right of pledge on all affairs that are brought into the power of FormArt in the frame of fulfilling the agreement with FormArt, such to additional security of all which the Customer in any function and from any account may be indebted to FormArt, including non-claimable and contingent debts.
Article 20 Force Majeure
a. Shortcomings of FormArt in the fulfilment of the agreement cannot be imputed on FormArt in case they are not owing to a fault of FormArt, nor for the account of FormArt by virtue of law, the agreement or traffic notions.
b. Shortcomings of FormArt in the fulfilment of the agreement as a result of war, mobilisation, turmoil, flood, closed navigation, other obstructions in transportation, stagnation in resp. limitation or termination of the delivery by public utilities, lack of coal, gas, petroleum products or other means for energy supply, fire, machinery breakdown and other accidents, strikes, exclusions, union actions, export limitations, other governmental measures, non-delivery of necessary goods and semi-finished products by third parties, wilful intent or gross negligence of assistants and other similar circumstances are specified as not imputable to FormArt and offer the Customer no right to dissolve the agreement or to any compensation for damages.
c. In case the period during which because of force majeure, fulfilment is not possible or lasts longer than ninety days, both parties are entitled to dissolve the agreement for the non-executed part (limited) extrajudicial by means of a written declaration by registered letter to the other party, without, in this case, any obligation for compensation of damages exists, subject to the obligations coming forward from the part of the agreement that was executed thus the non-dissolved part of the agreement.
Article 21 Liability
a. the liability of FormArt on account of the agreement with the Customer is limited to maximum the agreed upon invoice amount of the (partial) assignment, unless there is talk of wilful intent or gross negligence at the side of FormArt.
b. FormArt is not liable for damage of any nature whatsoever that arises because of or after the Customer after the delivery, has taken the manufactured goods into use, edited them or processed them, delivered the items to third parties resp. had them taken into use, had them edited or processed or had them delivered to third parties.
c. FormArt further is not liable for damage in the form of loss of business or decreased goodwill in the company or the profession of the Customer. FormArt is never liable for company, result, and/or indirect damage, in any case including lost profits and missed savings.
d. FormArt also is not liable for damage to by Customer delivered and by FormArt to be scanned and or to reproduced paintings, art works or other products or materials unless there is talk of gross intent or negligence on the part of FormArt.
e. In case FormArt in respect of any damage, for which by virtue of this agreement with the Customer and/or these delivery terms, is not liable, is held liable by a third party, Customer will completely safeguard FormArt and reimburse all that FormArt needs to settle to this third party.
f. FormArt is not liable for damage caused by third parties, unless these third parties are hired by FormArt. This article is of similar applicableness. However, FormArt is not liable for damage caused by suppliers of FormArt.
g. Condition for the existence of any right on damage compensation is always that Customer needs to file the damage claim in writing, within 14 days after the arising or observation of the damage with FormArt.
h. Every right in personam against FormArt on grounds of this article expires one year after the moment on which the injured party was aware or reasonably should have been aware of the damage-causing fact.
Article 22 Applicable law and authorized judge
a. Dutch law exclusively applies to these terms, the quotation, the order confirmation, the agreement, as well as invoices and other documents on which these terms are declared to apply.
b. All differences between FormArt and the Customer, coming from, or in any other way connected to the agreement and/or these terms will upon exclusion be filed at the authorized judge in Eindhoven, the Netherlands.
For consumer affairs it applies that Customer has a right to – within one month after FormArt has appealed to this clause, choose settlement from an authorised judge.
c. In case the cantonal of the court is authorised to take notion of a dispute, the judge authorised by the Law is competent.
d. FormArt always remains authorized to summon the Customer for the in accordance with the Law or the applicable international convention authorized judge. The provisions of the CISG do not apply and are hereby explicitly excluded.
Article 23 Final provisions
a. FormArt reserves the right to change these terms. A change will take effect fourteen days after written notification of this to the Customer. In case the Customer doesn’t agree with the change, Customer has the right to cancel the agreement to the date on which the change will take effect; in that case, article 16c applies similarly.
b. These terms are sent to the customer upon the first request. These terms can also be viewed on the website www.FormArt.nl. The latest deposited version and/or the version as applied during the conclusion of the agreement concerned always applies.