Article 1 DEFINITIONS
1.1 The terms used in these General Terms and Conditions are defined as follows:
General Terms and Conditions: the present general terms and conditions;
Van Straaten: Van Straaten B.V. with registered office in Boesingheliede and principal place of business in (2143 CE) Boesingheliede at the address Schipholweg 939, registered with the Chamber of Commerce under number 24183377;
Other party: the natural or legal entity which Van Straaten enters into an agreement with or intends to enter into an agreement with;
Services: all activities performed by Van Straaten under the Agreement for the purpose of the Other party;
Goods: all goods delivered by Van Straaten to the Other party under the Agreement;
Offer: every written offer to enter into an Agreement made by Van Straaten to the Other party;
Agreement: any Agreement concluded between Van Straaten and the Other party, including any alterations or additions, for the delivery of Goods and/or Services by Van Straaten to the Other party.
Article 2 APPLICABILITY
2.1 These General Terms and Conditions apply to all Offers of and Agreements by and with Van Straaten. These General Terms and Conditions also apply to all Goods and/or Services that Van Straaten has fully or partially delivered and/or performed by a third party. These terms also apply to any further or subsequent agreements between Van Straaten and the Other party. The Other party is considered to have agreed to this.
2.2 Derogations from these General Terms and Conditions are effective only if they have been expressly agreed between parties in writing. In that event, the expressly agreed on derogations shall prevail. The applicability of any general terms and conditions of the Other party is explicitly rejected.
2.3 Should Van Straaten deviate from these General Terms and Conditions in one or more Agreements with the Other party, this deviation does not apply to any previous or future Agreements between Van Straaten and the Other party.
2.4 Should one or more provisions in these General Terms and Conditions be fully or partially void or voidable at any time, all other provisions in these General Terms and Conditions shall remain fully in effect and parties will agree a new provision to replace the void or voidable provision that takes account of the purpose and scope of the original void or voidable provision.
Article 3 OFFERS AND FORMATION OF THE AGREEMENT
3.1 All Offers made by Van Straaten are without obligation and shall be valid for the period of time as indicated by Van Straaten. Should Van Straaten not indicate a period of time in its Offer, the Offer shall always automatically lapse after 30 days. All Offers may be revoked by Van Straaten at any time, also if the Offer contains a period for acceptance.
3.2 Offers are based on details provided by the Other party. The Other party guarantees it has provided the correct and relevant details.
3.3 Any documents which are part of the Offer such as brochures, technical descriptions, details, images, colors and such, were made with the utmost care but are without obligation. These are only used to provide a description to the Other party and shall not bind Van Straaten in any way. Furthermore, the aforementioned materials are and remain Van Straaten’s (intellectual) property.
3.4 Van Straaten cannot be held to its Offer in case the Other party may reasonably assume that the Offer, or part thereof, includes an obvious error or typo.
3.5 An Agreement only becomes effective when Van Straaten receives its Offer back from the Other party with their signature. Should the Offer have been made by Van Straaten by email, the Agreement becomes effective after the Other party accepts the Offer by email.
3.6 Should the Other party accept an Offer, Van Straaten shall nevertheless be entitled to revoke its Offer, verbally of in writing, within 8 days after receipt of the acceptance, in which case no Agreement was effected between parties.
3.7 Should the acceptance of the Offer contain reservations and/or changes which were added by the Other party, the Agreement - in derogation of the preceding - shall only become effective when Van Straaten approves these reservations and/or changes in writing.
3.8 Should the Other party place an order with Van Straaten, verbally or in writing, without this order being preceded by a written Offer made by Van Straaten, the Agreement only becomes effective when Van Straaten confirms the order in writing or when Van Straaten starts the performance of the order.
Article 4 PRICES
4.1 Unless otherwise indicated, the prices listed in an Offer or Agreement are in euros, exclusive of VAT and exclusive of other government levies, as well as exclusive of any costs arising from the Agreement. These levies and costs may be charged by Van Straaten separately.
4.2 The price of the deliverable Goods are explicitly exclusive of the costs of films and lithographs. These costs will be charged to the Other party separately, unless otherwise agreed on in writing. The films and lithographs made for the performance of an Agreement with the Other party shall remain the property of Van Straaten.
4.3 The prices listed in an Offer or Agreement for any Goods to be delivered by Van Straaten are based on delivery ex warehouse Schiphol 939 in Boesingheliede. In practice this means:exclusive of costs in connection with any transportation from Van Straaten’s warehouse to the address of the Other party.
4.4 The prices of the deliverable Goods and Services are calculated by Van Straaten based on cost factors, including the purchase price of raw materials and wages. Should one or more cost factors change after the effectuation of the Agreement and this change have a direct effect on the price of the deliverable Goods and Services, Van Straaten shall be entitled to change the prices of any Goods and Services that have not been delivered accordingly. Should the amended prices deviate more than 10% from the original agreed on prices, the Other party shall be entitled to terminate the Agreement. In the event of a termination of the Agreement by the Other party, Van Straaten shall never be liable for any form of damages or reimbursement of costs to the Other party.
4.5 When making Offers, Van Straaten assumes that it will be able to carry out its activities under normal and usual circumstances. Should special circumstances arise as a result of which Van Straaten incurs subsequent costs, Van Straaten shall notify the Other party and Van Straaten shall be entitled to charge these subsequent costs to the Other party.
4.6 Should Van Straaten perform any activities for the benefit of the Other party, in any capacity, which were not recorded in writing in an Agreement between both parties; or should any costs arise through the actions of the Other party, these activities/costs shall be considered additional work and will be charged accordingly. The Other party is obligated to pay for the additional work.
Article 5 PROVIDING DETAILS AND FILES
5.1 The Other party is obligated to provide all details, items and files necessary for the performance of the Agreement or that the Other party may reasonably assume to be necessary for the Performance of the Agreement, to Van Straaten before and no later that at the start of the Agreement and in the format as required by Van Straaten. Files should always be provided in accordance with the delivery specifications set by Van Straaten.
5.2 The Other party guarantees that the details, items and files it provides are correct and complete.
5.3 Van Straaten is entitled to suspend its performance under the Agreement until the Other party has provided the information and items mentioned in article 5.1 in accordance with the relevant conditions and may charge any costs arising from delays and/or the improper provision of information to the Other party. The Other party is obligated to compensate any damage Van Straaten suffers from the delays.
5.4 Van Straaten shall carefully store the provided details, items and files during the Agreement.
5.5 The risk of damage to or loss of the details, items and files provided by the Other party are explicitly for the Other party, with the exception of intent or deliberate recklessness by Van Straaten. Therefore, the Other party should make and keep copies of everything it provides to Van Straaten and insure any items it provides to Van Straaten. The Other party indemnifies Van Straaten against any third party claims in regard with damage to or loss of the details, items and files provided by the Other party.
5.6 Only where the Other party requests this in time and to the extent this is possible, shall Van Straaten return the provided details, items and files to the Other party. Should no request to that effect be made by the Other party, Van Straaten shall destroy the provided details, items and files after the completion of the Agreement.
Article 6 PERFORMANCE AGREEMENT AND DELIVERY
6.1 Upon the effectuation of the Agreement and Van Straaten’s receipt of all relevant information, items and files, Van Straaten shall proceed with the performance or delivery of the Services and/or Goods as included in the Agreement.
6.2 All provided and/or agreed on delivery periods are based on the details and circumstances as they were known to Van Straaten at the effectuation of the Agreement. These are never considered final deadlines, unless parties explicitly agree otherwise in writing. Van Straaten shall endeavor to observe the delivery periods where possible, but the mere exceeding of the delivery time shall not constitute a failure in the performance. Delays in the agreed on term shall never entitle the Other party to terminate or discontinue the Agreement nor to any damages or compensation of costs.
6.3 Van Straaten shall always deliver the finished Goods to its warehouse address. All risks with regard to Goods to be delivered by Van Straaten shall transfer to the Other party at the time that Van Straaten delivers the Goods there.
6.4 In the event that the Other party wishes Van Straaten to arrange transportation of the Goods from its warehouse to another address indicated by the Other party and Van Straaten agrees to this, this does not entail that delivery is made later or to another location than as stated in article 6.3. Any Agreement concerning this transportation shall constitute an additional arrangement and any costs and risks of transportation shall be fully at the expense of the Other party.
6.5 The Other party must take immediate possession at the time of delivery (the date on which these are finished). Van Straaten shall inform the Other when the production of the Goods has finished. From the moment of delivery Van Straaten shall be entitled to invoice the delivered Goods.
6.6 Van Straaten is entitled to deliver in parts (partial deliveries), and invoice these deliveries separately. The Other party is obligated to pay these partial invoices in accordance with article 14 of the General Terms and Conditions.
6.7 Should the Other party refuse to take possession of the ordered Goods, Van Straaten may:
a. deliver the Goods by means of an email notification in writing, in which case the email shall be considered a packing slip of the delivery and Van Straaten shall be entitled to store the Goods itself or at a third party from the moment of the written notification onwards, such at the expense and risk of the Other party, including the risk of loss of quality; or
b. proceed to full or partial termination of the Agreement and sell or deliver the Goods to a third party or parties. Should Van Straaten, in any way, suffer damages or incur costs resulting from the fact that the Other party refuses to take possession of the ordered Goods, the Other party shall be liable for this damage.
6.8 The Other party is obligated to do all that may reasonably be expected to allow timely delivery by Van Straaten, in the absence of which Van Straaten shall be entitled to suspend its obligation to deliver.
ARTICLE 7 PROOFS
7.1 Should Van Straaten provide proofs to the Other party prior to the definitive delivery of the order, the Other party must check these proofs for faults and defects carefully and with due speed and inform Van Straaten with due speed whether or not they approve the proofs. The Other party may not unreasonably withhold its approval.
7.2 Should Van Straaten not receive any notice within 8 days of the delivery of the proofs as referred to in article 7.1, the proofs are considered to be approved.
Article 8 INSTALLATION
8.1 In the event that the Agreement also includes the placement or installation of the delivered Goods, the provisions of article 8 apply.8.2 The Other party guarantees that any required permits were obtained, that all other statutory requirements were met and that, when placement or attachment involves the attachment of the Goods to or on other items, that these items are suitable for attachment.
8.3 The Other party guarantees that the area, the furnishings, the fittings, the equipment and tools and all other items related to the assembly of the delivered Goods are in good condition and are suitable for the agreed on installation.
8.4 Prior to the installation, the Other party must inspect whether the requirements of the previous articles are met.
8.5 The Other party takes full responsibility of all financial consequences of any failure and indemnifies Van Straaten against any third party claims.
Article 9 AMENDMENTS TO THE AGREEMENT
9.1 Should it become evident from the performance of the Agreement that its proper performance warrants amendment or supplement of said Agreement, parties shall timely consult with each other and amend the Agreement.
9.2 Should the nature, scope or contents of the Agreement be amended, this may have consequences for the price and delivery period as originally agreed on. Should that be the case, Van Straaten shall inform the Other party of the new price and timeframe as soon as possible. The Other party accepts the possibility of an amendment and/or additions to the Agreement, including a change in price and delivery period.
9.3 Should the Agreement be amended, such including any additions, Van Straaten shall be entitled to suspend the performance of the original Agreement until the Other party gives its written approval of the performance of the altered Agreement and its altered price, timeframe and other conditions.
9.4 Should a proper performance of the Agreement require an amended Amendment, the Other party must cooperate with such an amendment within reason. Should the Other party refuse to provide written approval of the amendments within a reasonable period of time,Van Straaten shall be entitled to terminate the Agreement without being obligated to compensate the Other party for any damage. In the event that the Other party unreasonably withholds the Approval, the Other party - irrespective of whether Van Straaten has terminated the Agreement - shall be obligated to pay the original agreed on price to Van Straaten.
9.5 Van Straaten may refuse a request to change the Agreement should this qualitatively and/or quantitively influence the activities or deliverable Goods, without this resulting in Van Straaten’s default.
Article 10 RETENTION OF TITLE
10.1 The title of the Goods delivered by Van Straaten to the Other party only transfers to the Other party upon complete fulfilment of all obligations the Other party has towards Van Straaten under all Agreements and any Services or activities provided to that end, such within the limits of article 3:92 Dutch Civil Code. Van Straaten shall not lose its (retention) of title when and/or as a result of the Other party’s processing or adaption of the Goods received from Van Straaten. In that event, the Other party shall automatically retain said items on behalf of Van Straaten.10.2 The Other party shall never be entitled to dispose of (sell) or encumber and/or give on loan any of the Goods delivered subject to retention of title without Van Straaten’s permission, until the complete fulfilment of all obligations the Other party has or may have towards Van Straaten under all Agreements between the Other party and Van Straaten and from any Services or activities provided to that end. This also applies to the Other party should they act as middleman.
10.3 If the Other party is in default of its obligations or if there is a reasonable fear that it will not fulfil its obligations, Van Straaten is entitled to retrieve, or have retrieved, the Goods subject to the retention of title referred to in article 1 from the Other party or from any third parties holding the Products for the Customer. The Other party is obligated to provide full cooperation with this subject to an immediately due and payable penalty of 10% of the full amount it owes to Van Straaten for each day of half-day that the Other party remains in default, such without prejudice to Van Straaten’s right to claim performance of the obligations in the previous sentence and/or claim damages.
10.4 The Other party shall not be credited for any items retrieved under the provisions of this article and the payment obligation, including interest, shall continue to exist.
10.5 Furthermore, Van Straaten shall deliver all Goods subject to an undisclosed pledge. After the lapse of the retention of title, the Goods thus transferred shall be encumbered with a silent pledge held by Van Straaten. These pledges provide additional security for the payment of all that Van Straaten can claim from the Other party in any capacity, now and in the future. The Other party shall sign a deed creating a right of pledge immediately at Van Straaten’s request and register this deed with the tax and customs administration [Taxoffice].
Article 11 DUTY OF INVESTIGATION/COMPLAINTS
11.1 The Other party is obligated to inspect the quantity and the quality of the Goods and/or Services within 8 days of delivery and establish their soundness and compliance with the Agreement between Van Straaten and the Other party.
11.2 In the event that the Other party finds a defect in the quantity and/or quality of the delivered Goods and/or Services, the Other party must inform Van Straaten of this in writing, immediately after discovery and always within 8 days of delivery of the Goods and/or Services. Should the Other party prove that they could not reasonably have discovered the defect within the aforementioned term (hidden defect), the Other party must report the defect to Van Straaten in writing within 8 days of its discovery, or within 8 days of reasonably having been able to discover the defect.
11.3 The written notification referred to in article 11.2 must include a description of the defect containing as much detail as possible. In addition to this, the Other party must include the invoice number and - if applicable - the packing slip of the delivery, allowing Van Straaten to react to the complaint as adequately as possible.
11.4 Should the Other party not lodge its complaint within the period of time stated in article 11.2, or should the complaint not meet the other requirements of article 11.3, all rights the Other party may have in regard to the discovered defect or the discovered failure lapse by operation of law.
11.5 Should a complaint be found valid, whether or not by Van Straaten, Van Straaten may opt to (a) improve/repair the relevant part of the delivery or to provide a replacement delivery to the Other party at the delivery address of the original delivery, therefore ex warehouse in accordance with article 6.3, unless expressly agreed otherwise, or (b) to send a credit note to the Other party for the relevant part of the delivery, which is then considered to have been canceled.
11.6 The Other party is only permitted to return the Goods to Van Straaten after Van Straaten’s prior written consent. Return shipments which were not preceded by a complaint including the relevant details followed by Van Straaten’s written permission for return, are not allowed. In the event that the Other party returns the Goods contrary to the abovementioned stipulations or without due cause, Van Straaten shall hold any Goods it does not refuse for the Other party, such at the expense and risk of Customer. Van Straaten shall keep these Goods without any acknowledgement of the validity of Other party’s claim under a guarantee. The costs of any return shipments are at the expense of the Other party.
11.7 Complaints do not release the Other party of its payment obligations.
Article 12 FULFILMENT VAN STRAATEN/GUARANTEES/FAILING
12.1 Van Straaten shall perform its activities to the best of its knowledge and ability and in accordance with high standards and current scientific knowledge, under the condition that Van Straaten shall be properly informed by the Other party prior to and during the performance of the Agreement. Van Straaten shall make every effort to deliver the Goods in same quantity and quality as ordered by the Other party.12.2 Statements made by or on behalf of Van Straaten with respect to the quality, composition, possibilities of application and characteristics in the broadest sense of the word et cetera of the delivered Goods shall only be considered guarantees when these have been expressly confirmed as guarantees by Van Straaten explicitly and in writing (using the word ‘guarantee’). The applicability of any guarantee is explicitly excluded for normal wear and tear, including but not limited to gradual discoloration and decrease in gloss and shrinkage of the material due to temperature fluctuations and any damage inflicted by the Other party itself, in any way.
12.3 When the Goods delivered by Van Straaten match the approved proof and/or once the Other has fully or partially used the Goods, altered, processed or delivered the Goods delivered by Van Straaten to third parties, Van Straaten’s performance of the Agreement is deemed to have been adequate.
12.4 Small deviations with respect to the quality, color, size, weight, finishing, design etc., which are commonly considered acceptable or cannot be prevented as well as normal wear and tear of the delivered Goods, shall never constitute ground for failure on the part of Van Straaten.
12.5 Should the delivered Goods be in accordance with the Agreement, yet turn out to be unsuitable for the purpose intended by the Other party, this is at the Other party’s risk. This does not constitute failure on the part of Van Straaten.
Article 13 FORCE MAJEURE
13.1 In these Terms and Conditions, force majeure pursuant to article 6:75 Dutch Civil Code includes, but is not limited to the contents of the law and jurisprudence, all external causes, whether anticipated or not, that are beyond Van Straaten’s control, yet render Van Straaten unable to fulfill its obligations or making the fulfilment of the Agreement so impossibly onerous and/or disproportionately costly that fulfilment of the Agreement cannot reasonably be expected of Van Straaten. Strikes in the company of Van Straaten or of third parties shall always be included in this definition, as well as extreme weather conditions, machinery breakdown, machine malfunction, interruptions in the delivery of energy and the circumstance that Van Straaten does not, not timely or not correctly receive a deliverable that it requires for its own delivery. Van Straaten is also entitled to invoke force majeure if the circumstances which prevent (further) fulfilment of the Agreement occur after Van Straaten should have fulfilled its commitments.
13.2 Van Straaten may suspend its obligations arising from the Agreement during the period that the force majeure continues. Should the duration of force majeure exceed two months, both Van Straaten and the Other party shalll be entitled to terminate the Agreement, without obligations to compensate the other party’s damage/costs.
Article 14 PAYMENT
14.1 Van Straaten determines the payment conditions. Van Straaten may require a down payment before starting its performance of the Agreement
14.2 Unless otherwise agreed, any payments due by the Other party should be made to Van Straaten within 30 days of the invoice date. The value date on the bank statement determines the date of payment.
14.3 Should the Other party have objections to the invoice it receives, the Other party must make these objections known to Van Straaten in writing no later than within 8 days after the invoice date, in the absence of which the invoice shall be considered correct.
14.4 The Other party shall never be entitled to suspend its obligations towards Van Straaten and/or settle any amount with its own claim on Van Straaten.
14.5 Should the Other party not pay the invoice within the payment term, the Other party shall be in default automatically. Should the Other party be in default, it owes a contractual interest of 1% per month or part of a month on the amount it owes, unless the statutory (commercial) interest rate is higher, in which case the statutory (commercial) interest rate applies.
14.6 All costs, legal and extrajudicial costs, incurred by Van Straaten in purport of its rights, are at the expense of the Other party. The extrajudicial costs are determined at 15% of the relevant amount with a minimum of € 200,- excluding VAT.
14.7 Should Van Straaten, in any way, suffer damage or incur costs resulting from the fact that the Other party refuses payment, in any way, the Other party shall be liable for this damage.
14.8 Payments made by the Other party shall first be applied to settle the costs, then the interest that has fallen due and finally the principals and shall first be applied to the oldest outstanding amounts before being applied to any new amounts due.
14.9 Should Van Straaten consider it desirable and always in the event that the Other party is in default with any payment obligation, Van Straaten shall be entitled, in derogation of the agreed on payment arrangement and after the Agreement was concluded, to demand payment in advance or a security for the payment obligations of the Other party. The Other party shall adhere to Van Straaten’s request immediately.
14.10 Should the Agreement be concluded with more than one Other party, all Other parties shall be severally liable for the payment obligations arising from the Agreement.
Article 15 FEAR OF NONFULFILMENT
15.1 Should circumstances brought to the attention of Van Straaten after the conclusion of the Agreement give Van Straaten good ground to fear that the Other party cannot, not correctly and/or not timely fulfil its obligations, such for instance in case of bankruptcy or suspension of payment or when an application for one of these measures is pending, or when a decision of termination or merger of the Other party has been taken or when prejudgment or executory attachment is or will be attached to any part of the Other party’s assets, or when the Other party fails in any payment obligation towards Van Straaten, all payment obligations the Other party has towards Payment will fall due and payable immediately. In such a case, Van Straaten is entitled to claim immediate payment of the amounts due or a security in regard to the amounts due.15.2 In that event, Van Straaten shall be entitled to suspend the performance of the obligations it has towards the Other party until payment and/or sufficient security of all payment obligations has been provided. Should Van Straaten choose to execute that right, it will not in any way be obligated to pay damages to the Other party or compensate costs arising from this decision.
15.3 The Other party is liable for all damage Van Straaten incurs as a result of the previous.
Article 16 TERMINATION
16.1 All Agreements executed between Van Straaten and the Other party may be terminated early and with immediate effect, or by and through a single notification in writing, such without Van Straaten being obligated to pay any (financial) damages and while retaining any of Van Straaten’s rights, in any of the following circumstances:
a. when the Other party is declared bankrupt or when suspension of payment is granted;
b. when a petition for bankruptcy is lodged against the Other party or when a request for suspension of payment is lodged;
c. when the Other party offers its creditors a voluntary arrangement;
d. when the company of the Other party ceases its business or is at the risk of ceasing its business;
e. when circumstances brought to the attention of Van Straaten after the conclusion of the Agreement give Van Straaten good ground to fear that the Other party cannot meet its obligations in a correct and timely manner and/or when Van Straaten finds that the collection of current or future claims cannot be secured;
f. the Other party does not, not fully or not timely fulfil any of its obligations pursuant to the Agreement between Van Straaten and the Other party or any of its obligations by law, and is therefore in default; or
g. when delays on the part of the Other party mean that Van Straaten can no longer reasonably be expected to fulfil the Agreement on the original conditions;
h. when circumstances arise which render the fulfilment of the Agreement impossible or if any other circumstances arise which render an unaltered continuation of the Agreement on the side of Van Straaten unreasonable.
16.2 In case of termination of the Agreement on whichever ground, all claims Van Straaten has on the Other party become immediately due and payable and Van Straaten shall be entitled to payment of any activities it has performed and costs it has incurred.
16.3 Should the termination under the provisions of article 16.1 be attributable to the Other party, Van Straaten shall be entitled to compensation of the damage it subsequently suffers.
Article 17 LIABILITY VAN STRAATEN
17.1 Should Van Straaten be liable towards the Customer for damage suffered in connection with the Agreement, or arising from a wrongful act, or on any other basis, this liability shall be limited to a total as regulated in this provision:a. Van Straaten shall never be liable for damage arising from Van Straaten’s use of any incorrect information/files provided by or on behalf of the Other party;
b. Van Straaten shall never be liable for the Other party suffering any lost profit, lost income, lost turnover, lost savings, loss due to business or other interruption.
c. Van Straaten’s liability towards the Other party is at all times limited to the amount covered by Van Straaten’s liability insurance in a particular case;
d. In the event that the liability insurance of Van Straaten - for whatever reason - does not pay out, Van Straaten’s liability shall be limited to the net value of the invoice of the Goods and/or Services relating to the events giving rise to the damage; or, when the event relates to more than one invoice, the net value of the last invoice of this series of invoices sent by Van Straaten to the Other party prior to the event giving rise to the damage; or, when a delivery of Goods and/or Services was not cause for the events giving rise to the damage, or if no invoice was sent, the net value of the last invoice sent to the Other party by Van Straaten prior to the event giving rise to the damage;
e. In the event that the liability insurance of Van Straaten - for whatever reason - does not pay out, Van Straaten’s total liability towards the Other party for any late and/or incorrect fulfilment or arising from any other cause - irrespective of the number of events giving rise to the damage - shall always be limited to the net amount of the last invoice sent to the Other party by Van Straaten prior to the event giving rise to the damage;
17.2 The aforementioned limitation of liability does not apply in case of intent or deliberate recklessness on the part of Van Straaten and/or its managers.
17.3 All subordinates of Van Straaten can equally appeal to the provisions above in any matters against the Other party and any third parties.
17.4 Damage for which Van Straaten can be held liable, should be reported to Van Straaten in writing without delay but always within 8 days after the occurrence of said damage, at the risk of such a claim lapsing. This term does not apply when Van Straaten can make a plausible case that the damage could not be reported sooner for well-founded reasons.
17.5 A liability claim towards Van Straaten lapses within 12 months upon the Other party becoming aware of the event from which the damage arises or may reasonably be assumed to have been aware of this event.
Article 18 INDEMNIFICATION
18.1 The Other party is liable for all damages, losses, costs and expenses which Van Straaten or any third party may suffer resulting from or in connection with the Other party’s failing in the performance of the Agreement, irrespective of whether the damage was caused by the Other party, its staff or another (legal) person or item for which the Other party is liable by law.
18.2 The Other party fully indemnifies Van Straaten against all third party claims in regard to damage, losses, costs and expenses that third parties suffer from or relating to a failure in the performance of an Agreement by the Other party, explicitly not limited to claims as intended in article 6:185 in conjunction with 6:190 Dutch Civil Code, as well as the deductible referred to in these articles, as well as claims arising from infringement of any intellectual property right in connection with the delivered items.
18.3 Should Van Straaten be addressed by third parties in that respect, the Other party shall be obligated to assist Van Straaten both in legal and other proceedings and promptly do all that may be expected of it in such a situation.
18.4 The Other party will provide an adequate insurance to cover the abovementioned performance risk. The Other party is obligated to demonstrate its compliance with this obligation immediately on request of Van Straaten. The Other party shall always bear the cost of any policy excess. Should the Other party be able to claim insurance coverage of its liability towards Van Straaten, the Other party must ensure that any insurance payments shall be made out to Van Straaten directly. Any insurance payment to Van Straaten based on an insurance agreement taken out by the Other party does not impair Van Straaten’s right to claim damages from the Other party, to the extend that these exceed the insurance pay out.
18.5 The Other party is always obligated to make every effort to limit the damage.
18.6 Should the Other party fail to take adequate measures, Van Straaten shall be entitled, without notice of default being required, to take these measures itself. All costs and damage subsequently arising on the part of Van Straaten and third parties, will be wholly at expense and risks of the Other party.
Article 19 INTELLECTUAL PROPERTY RIGHTS, SEMIFINISHED PRODUCTS, PRODUCTION RESOURCES
19.1 The Other party guarantees towards Van Straaten that the performance of the Agreement does not infringe any intellectual property rights held by a third party.19.2 All intellectual property rights, including – but not limited to – trademarks, copyright, design and database rights, which originate from or were used for the purpose of the performance of the Agreement and/or which were included in the Goods or an advice, including – but not limited to – analyses, surveys, products, production processes, applications, drafts, designs, drawings, inventions, models, techniques, works, procedures, outcomes, creations, presentations, computer programs, knowhow, data collection and other knowledge gained, are exclusively vested in Van Straaten, unless explicitly otherwise agreed in writing.
19.3 The Other party shall at all times fully respect all intellectual property rights held by Van Straaten.
19.4 The Other party is not permitted to communicate this intellectual property to the public, or reproduce, use, commercialize, deliver, in any way sell or register the intellectual property in any way other than to use the delivered Goods in accordance with their purpose.
19.5 All items produced by Van Straaten in connection with the performance of the Agreement, such as production resources, semifinished products and auxiliary materials, with the exception of the Goods, shall remain Van Straaten’s sole property, even if the Other party has paid a compensation for their production. Van Straaten is not obligated to deliver these items to the Other party or to keep them.
19.6 Should the Other party request that Van Straaten performs the Agreement with the aid of or by processing production resources, semifinished products or auxiliary materials provided by the Other party, this shall be done entirely at the Other party’s risk. Any consequences arising from this shall never constitute failure on the part of Van Straaten.
Article 20 - APPLICABLE LAW AND DISPUTE SETTLEMENT
20.1 Dutch law exclusively governs all legal relationships to which Van Straaten is party, even when the performance of the obligation is executed fully or partially abroad or when a party to the legal relationship resides abroad. The applicability of the Vienna Sales Convention 1980 (CISG) is explicitly excluded.
20.2 The court in Noord-Holland, location Haarlem, the Netherlands has exclusive jurisdiction to hear all disputes, unless otherwise provided by mandatory law. This does not, however, impair Van Straaten’s right to submit a dispute to the court which has jurisdiction according to the law.
20.3 Only the Dutch language version of these conditions takes precedence. Any deviations in a translation are superseded by the Dutch text.
Article 21 - AUTHENTIC VERSION
Only the Dutch language version of these conditions takes precedence. Any deviations in a translation are superseded by the Dutch text.
