GENERAL TERMS AND CONDITIONS OF DELIVERY
AND PAYMENT OF THE PRIVATE COMPANY WITH
LIMITED LIABILITY BOOKS HOLLAND B.V. WITH
REGISTERED OFFICES IN ZOETERMEER
Lodged with the registry of the District Court,
The Hague on 13 May 1997 under number 3651.
Article 1: General
1. These terms and conditions shall apply to the establishment, the substance and the fulfilment of all contracts concluded (and to be concluded) between the other party and the private company with limited liability Books Holland b.v., hereinafter to be designated: “Books Holland”.
2. General terms and conditions of the other party shall apply only when agreement has been reached specifically and in writing that they should apply between party to the exclusion of these terms and conditions.
3. Exceptions to these terms and conditions shall apply only when agreed in writing between Books Holland and the other party, and then solely for the contract for which they have been stipulated; for the rest these terms and conditions shall apply.
Article 2: Quotations, offers
1. Specification of a price whether or not stipulated by a quotation, estimate, pre-calculation or similar notification shall in itself not obligate Books Holland to conclude a contract with the other party.
2. Quotations by Books Holland are in all cases without engagement and may be accepted only without exceptions. Quotations shall in all cases be deemed to have been rejected when not accepted within one month. By quotation shall be understood a proposal made by Books Holland for the conclusion of a contract, that has been stipulated in such fashion that its acceptance would lead immediately to a contract.
Article 3: Cancellation
The other party shall be entitled to cancel a contract before Books Holland has commenced implementation thereof provided it reimburses Books Holland for resulting damages. These damages shall include profits foregone by Books Holland and costs of preparation already incurred by Books Holland.
Article 4: Price
1. Prices quoted are in all cases exclusive of VAT and other levies imposed by government.
2. The price that Books Holland has quoted for the service it is to provide shall apply solely for the service that complies with the specifications contracted.
3. When no price has been contracted by parties, but parties had in a year preceding the contract concluded one or more contracts with identical or nearly identical substance, the price shall be computed on the basis of the production methods and calculation rates applied for these.
4. Should a price not have been contracted and the previous paragraph of this article not apply, the price shall be determined on the basis of the calculation schedule applying in the operation of Books Holland.
Article 5: Price amendments
1. Books Holland shall be entitled to increase the price contracted when one or more of the following circumstances arise after conclusion of the contract: increase of the costs of materials, intermediates or services that are required for implementation of the contract, increase of transport costs, wages, employers’ welfare insurance premiums, costs relating to other terms and conditions of employment, introduction of new and increase of other government levies on raw materials, energy or waste materials, significant changes to exchange rates or, in general, circumstances that are comparable thereto.
2. Excessively elaborate text, obscure copy, obscure sketches, drawings or models, defective information carriers, defective computer programs or databases, faults in the mode of supply of by the other party of the materials or products and all similar deliveries by the other party that result in extra work or costs on the part of Books Holland that exceed what it might have reasonably anticipated upon concluding the contract, shall provide grounds for increasing the price contracted.
3. Books Holland shall be entitled to increase the price contracted when the customer introduces amendments to the specifications originally contracted, whereunder authors’ corrections or amended instructions after receipt of working drawings, models and typesetting, printing and other proofs. Books Holland shall cooperate within the bounds of reasonability with these amendments, provided the essence of the service to be provided by it does not differ materially from the service originally contracted.
Article 6: Terms of payment
1. The other party shall unless contracted otherwise pay the price and other amounts due pursuant to the contract within 30 days of invoice date without the right to appeal to any discount, set-off or postponement. Failure to pay on time as just stipulated shall place other party at default without necessity of notification by Books Holland to that effect.
2. The other party shall be obligated at all times and irrespective of the terms of payment contracted to provide on first request by Books Holland satisfactory security for fulfillment of the amounts due to Books Holland pursuant to the contract.
3. Should the other party not pay on time as stipulated in paragraph 1 of this article, it shall be due by virtue of such delay in its fulfilment of the amount due by it interest at the legal rate on that amount from the invoice date. Books Holland is entitled to charge one-twelfth of this interest for each month or part of a month during which the other party has not met in full its obligation to pay.
4. In the event of failure to pay in time as stipulated in paragraph 1 of this article, the other party shall be due in addition to the amount due and the interest on it, complete remuneration of both court and out-of-court costs. The out-of-course costs shall be set at a minimum of 15% of the principal sum with interest.
Article 7: Sequence of payment
Payments made by the other party shall be applied in first instance to satisfaction of all interest and costs due and then to satisfaction of those invoices due that have been the longest unpaid, even when the other party alleges that such payments apply to a later invoice.
Article 8: Creditworthiness
Every contract entered into by Books Holland shall be subject to the proviso that the other party is on the basis of information to be obtained by Books Holland sufficiently creditworthy.
Article 9: Retention of title
1. All goods delivered to the other party shall remain the property of Books Holland for as long as that other party has not met in full its obligations to Books Holland.
– with respect to the goods supplied or to be supplied by Books Holland to the other party pursuant to the contract, and also
– with respect to the claims of Books Holland for shortcomings on the part of the other party in fulfilment of such contracts.
2. Without prejudice to the remaining rights accruing to Books Holland, Books Holland shall retain the right, should the other party not and/or not entirely and/or not in time meet its obligation as stipulated in the foregoing, to on its own authority and without further notice of default or intervention of law recover and appropriate the goods supplied.
3. The other party is not entitled to dispose of goods to which Books Holland still has title pursuant to the foregoing, or to alienate, pledge or transfer their title, except for alienation in the normal execution of its business. The other party shall be obligated to treat and maintain the goods to which Books Holland still retains title with care, and to insure against the risks of damage, loss and destruction.
4. When the goods to which Books Holland still retains title are sold on to third parties and these third parties have not yet or not discharged in full the purchase price due, the other party shall be obligated on first request by Books Holland to pledge the receivables in question to Books Holland and that on sanction of forfeiture of a fine of € 4.500,- for each day that the other party remains in default with respect to fulfilment of this obligation.
Article 10: Mode of delivery
1. Unless contracted otherwise, deliveries shall be from the location where Books Holland operates its business.
2. The other party shall be obligated to extend its full assistance with delivery of the goods to be delivered by Books Holland pursuant to the contract. The other party shall be in default even when not notified to that effect, when it does not collect the goods to be delivered on first notification by Books Holland, or, when delivery to its address has been contracted, refuses to accept delivery of the goods.
3. When transport for the goods to be delivered has been contracted, this shall be for the account of the other party, unless carriage paid delivery has been contracted. The other party shall bear the transport risk in all cases.
4. Books Holland shall not undertake storage of the goods to be delivered, unless such has been contracted explicitly. Any storage undertaken shall be for account and risk of the other party.
5. Should the other party be unwilling or unable to accept (or have accepted for) delivery, Books Holland may deem the goods to have been delivered and retain, store and insure these for a reasonable period for the account and risk of the other party. The other party shall then be obligated to provide sufficient security for the costs of such retention, storage and insurance.
Article 11: Period of delivery
1. Periods of delivery stipulated by Books Holland shall have, unless they have been stipulated explicitly in writing to be deadlines, indicative intention only. Books Holland is, even in the case of a contracted deadline, in default not earlier than from notification to that effect by the other party.
2. The engagement of Books Holland to a contracted deadline for delivery shall expire when the other party requires alterations to the specification for the work, unless the insignificance of such alteration or the slightness of such delay does not necessitate Books Holland in all reasonability to alter the deployment of production capacity originally scheduled by it.
3. The engagement of Books Holland to a contracted deadline for delivery shall likewise expire when the other party does not fulfil any obligations pursuant to the contract or fails to do what is in all reasonability necessary or expedient to timely delivery by Books Holland.
Article 12: Transfer of risk
The risk for the goods to be delivered by Books Holland shall transfer to the other party whenever the goods have been delivered by Books Holland as stipulated in the foregoing under article 10.
Article 13: Suspension
In the event of failure of the other party to fulfil any obligation pursuant to the contract that party shall be in default without necessity of written notice of default by Books Holland. Books Holland is in such case, without prejudice to its legal rights, entitled to suspend further execution of the contract until the other party has made good its default.
Article 14: Inspection on delivery
1. The other party shall be obligated to inspect promptly after delivery in order to determine whether Books Holland has discharged the contract properly and is also obligated should such not be the case to inform Books Holland immediately in writing. The other party must carry out such inspection and make such notification at the latest within 14 days of delivery.
2. Books Holland shall in all cases be entitled to replace a previously provided defective service by a new, correct service, unless the default is incapable of correction.
3. Books Holland’s service shall in any event be deemed by parties to be correct when the other party has started to use that supplied, has treated or processed it, delivered it to third parties and/or has had it used, treated or processed or delivered to third parties, except when the other party has observed that stipulated in the first paragraph of this article.
Article 15: Substance of and amendment to contract
The other party shall bear the risk of misunderstandings with respect to the substance and execution of the contract when these do not result from Books Holland’s not having received, not having received properly or on time or having received incomplete specifications or other communications that have been made orally or by a person appointed by the other party for that purpose or that have been transmitted by means of some technical medium such as for example telephone, fax and similar transmission media.
Article 16: Typesetting, printing and other proofs
1. The other party shall be obligated to inspect diligently for errors and omissions all typesetting, printing or other proofs provided to it by Books Holland, whether at its request or not and to return these corrected or approved to Books Holland promptly.
2. Approval of the proofs shall be deemed to constituting acknowledgement of Books Holland’s having executed properly the work preceding such proofs. Books Holland shall not be liable for deviations, errors and omissions that have remained undetected in the proofs approved or corrected by the other party.
3. Each proof prepared on the other party’s request shall be charged in addition to the price contracted, unless explicit agreement has been reached that costs of such proofs are to be included in the price.
Article 17: Differences
1. Differences between on the one hand the work delivered and on the other the original design, drawing, copy or model, typesetting, printing or other proof respectively may give no grounds for rejection, discount, dissolution of the contract or compensation for damages when they are of minor significance.
2. Differences that, taking into account all the circumstances, have in all reasonability no or a minor influence on the usability of the work shall be deemed in all cases to be differences of minor significance.
3. Positive or negative variations relative to the number contracted shall be permitted when they do not exceed the following percentages:
– edition to 2,000 units: 10%
– edition of 2,000 units and more: 5%
4. With regard to the quality and the gram weight of paper and cardboard differences shall be deemed to be differences of minor significance that are permitted pursuant to the tolerance standards stipulated in the General Terms and Conditions of Sale of the Association of Paper Wholesalers. These terms and conditions are available at Books Holland for inspection. Books Holland will on request send the other party a copy of these terms and conditions free of charge.
Article 18: Copyrights, etc.
1. The other party guarantees Books Holland that by virtue of fulfilment of the contract and more particularly by reason of reproduction or making public of items received from the other party such as copy, typeset, models, drawings, photographic records, lithographs, films, information media, computer programs, databases etc. the rights that third parties might be able to activate under the Copyright Act 1912 or other national, supranational or international legislation in the area of copyright or industrial property right or otherwise unlawful act are not violated. The other party indemnifies Books Holland both at and outwith law for all claims that third parties might be able to successfully entertain under said legislation or regulations.
2. When there is or remains a reasonable level of uncertainty as to claims entertained by third parties as stipulated in paragraph 1 of this article, Books Holland shall be entitled but not obligated to suspend fulfilment of the contract until it has been irrevocably established by law that Books Holland in fulfilling the contract is not in violation of such rights. Books Holland shall then proceed to discharge the order within a reasonable period.
3. Unless explicitly agreed otherwise in writing, Books Holland shall remain in all cases the legal proprietor to the copyright that may arise from the works produced by it in execution of the contract.
4. The goods to be delivered or delivered by Books Holland according to its design may, even when or to that extent that the design involved enjoys no copyright or other legal protection, not be reproduced without Books Holland’s permission in the context of any production process. The other party shall acquire the non-exclusive right to employ the goods supplied. That right of employment shall be restricted to the right to normal employment of the goods delivered and specifically excludes from that employment the reproduction of these goods in the context of any production process.
Article 19: Title to production resources etc.
All items produced by Books Holland such as production resources, intermediates and accessories shall remain the property of Books Holland, even when these have been specified as separate item in the quotation, offer or invoice. Books Holland shall moreover not be obligated to surrender these items to the other party.
Article 20: Title other party, right of pledge
1. Books Holland shall preserve the goods entrusted to it by the other party in the context of fulfilment of the contract with the care of a careful trustee.
2. The other party shall, without prejudice to that stipulated in the previous article, bear all the risks incumbent upon the goods stipulated in paragraph 1. The other party must if required take out insurance for this risk.
3. The other party shall grant right of pledge to Books Holland for all goods that are in the context of the contract entrusted to the care of Books Holland, as additional security for all that the other party may, irrespective of capacity and definition, be due to Books Holland, this to include debts not due and contingent debts.
Article 21: Materials and products supplied by the other party
1. Should the other party have contracted with Books Holland that that other party shall deliver materials or products for printing or processing, it must ensure for such delivery in a manner that may be deemed timely and correct for normal scheduled production. The other party shall to this end request instructions from Books Holland.
2. The other party shall also be obligated to provide a reasonable quantity for proofs etc. for the processing in question.
3. Books Holland shall not be obligated to inspect for suitability the goods supplied prior to printing or processing.
4. Books Holland may not be held liable for deficiency in fulfilment of the contract when such is due to exceptional circumstances or processing conditions that could not reasonably have been foreseen by Books Holland and that arise from the nature of the materials or products delivered by the other party.
5. Books Holland gives no warranty for characteristics such as shelf life, adhesion, sheen, colour, light or colour authenticity or resistance to wear when the other party has not upon conclusion of the contract specified the characteristics and nature of the materials and products supplied by it and has not provided proper information on the preparatory processing and surface treatments applied.
Article 22: Force majeure
1. Shortcomings on the part of Books Holland in fulfilment of the contract may not be attributed to it, when there is no culpability on its part, whether pursuant to law, the contract or generally held opinions.
2. Shortcomings on the part of Books Holland in fulfilment of the contract as a result of war, mobilization, civil disturbances, flooding, shipping embargo, other obstructions to traffic, stagnation, restriction or termination respectively of supply by public utilities, scarcity of gas and petroleum products or other resources for energy production, fire, machine breakdown and other accidents, strikes, lock-outs, trade union demonstrations, export restrictions, other acts by government agencies, non-supply of essential materials and intermediates by third parties, malice or gross negligence by support personnel and other circumstances of similar nature shall be deemed not to be attributable to Books Holland and shall give no cause to the other party to dissolve the contract or to compensation for damages.
Article 23: Liability
1. The liability of Books Holland pursuant to the contract with other party shall be restricted to an amount that is in terms of reasonability and fairness in keeping with the price contracted.
2. Books Holland shall not be liable for damage of any nature whatsoever arising as a result of or after the other party has after delivery commenced to employ or has treated or processed the goods manufactured or delivered them to third parties or has put them to use, had them treated or processed or had them delivered to third parties respectively.
3. Neither is Books Holland liable for damage in the form of sales turnover foregone or a decline in the goodwill of the operation or occupation of the other party.
4. Books Holland is equally free of liability for damage to materials and products received by it from the other party for printing, treatment or processing, when the other party has not explicitly when concluding the contract specified the characteristics and nature of these materials and products, and provided proper information on the preparatory processing and surface treatments applied.
5. Should Books Holland be held liable by a third party regarding any damage for which it is not liable pursuant to the contract with the other party and/or these terms and conditions, the other party shall indemnify Books Holland completely and reimburse all that is required to reimburse that third party.
Article 24: Applicable law
The contract between Books Holland and the other party shall be governed by Dutch law.
Article 25: Disputes
A dispute shall be present when one of the parties alleges that such is the case. All disputes that may arise as a result of the contract between Books Holland and the other party or from further contracts to be concluded by them shall be adjudicated by the competent court within the arrondissement The Hague, unless parties agree to arbitration.