Terms and Conditions
These terms and conditions apply to every offer, quote, and agreement between Peter Vogelaar, doing business as Picadilly Creative Services, hereinafter referred to as: “Contractor”, and a Client to whom Contractor has declared these terms applicable, insofar as these terms* have not been expressly deviated from by the parties in writing.
*These terms and conditions also apply to actions by third parties engaged by the Contractor within the framework of the/an assignment.
These general terms and conditions are also written for the employees of the Contractor and its management.
The applicability of any purchasing or other conditions of the Client is expressly rejected.
If one or more provisions in these general terms and conditions are at any time wholly or partially void or should be annulled, the remaining provisions in these general terms and conditions remain fully applicable. Contractor and the Client will then enter into consultations in order to agree on new provisions to replace the void or annulled provisions, whereby the purpose and intent of the original provisions are observed as much as possible.
If there is any uncertainty regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation must take place ‘in the spirit’ of these provisions.
If a situation arises between the parties that is not regulated in these general terms and conditions, this situation must be assessed in the spirit of these general terms and conditions.
If the Contractor does not always require strict compliance with these terms, this does not mean that the provisions thereof do not apply, or that the Contractor would lose the right in any way to require strict compliance with the provisions of these terms in other cases.
Article 2 Quotes, offers
All quotes and offers from the Contractor are non-binding, unless a period for acceptance is stated in the quote. If no acceptance period is stated, the offer always expires after 30 days.
Contractor cannot be held to its quotes or offers if the Client can reasonably understand that the quotes or offers, or a part thereof, contain an obvious mistake or clerical error.
The prices stated in a quote or offer are exclusive of VAT and other government levies, and any costs to be incurred within the framework of the agreement, including travel and accommodation, shipping, and administrative costs, unless otherwise indicated.
If the acceptance deviates (whether or not on minor points) from the offer included in the quote or the offer, the Contractor is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the Contractor indicates otherwise.
A composite quote does not oblige the Contractor to perform a part of the assignment for a corresponding part of the stated price. Offers or quotes do not automatically apply to future orders.
Article 3 Contract duration, execution periods, transfer of risk, execution and amendment of agreement, price increase
The agreement between the Contractor and the Client is entered into for a fixed term, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
If a period has been agreed or specified for the execution of certain activities or for the delivery of certain goods, this is never a strict deadline. In the event of a period being exceeded, the Client must therefore give the Contractor written notice of default. The Contractor must be offered a reasonable period to still execute the agreement.
Contractor will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. This is based on the state of science known at that time.
Contractor has the right to have certain activities performed by third parties. The applicability of Article 7:404, 7:407 paragraph 2, and 7:409 of the Dutch Civil Code is expressly excluded.
If activities are performed by the Contractor or by third parties engaged by the Contractor within the framework of the assignment at the location of the Client or a location designated by the Client, the Client shall provide the facilities reasonably desired by those employees free of charge.
Contractor is entitled to execute the agreement in different phases and to invoice the part thus executed separately.
If the agreement is executed in phases, the Contractor may suspend the execution of those parts belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
The Client shall ensure that all data, which the Contractor indicates is necessary or which the Client should reasonably understand is necessary for the execution of the agreement, is provided to the Contractor in a timely manner. If the data required for the execution of the agreement has not been provided to the Contractor in time, the Contractor has the right to suspend the execution of the agreement and/or to charge the Client for the extra costs resulting from the delay according to the then-customary rates. The execution period does not commence until after the Client has made the data available to the Contractor. Contractor is not liable for damage, of whatever nature, because the Contractor has acted on incorrect and/or incomplete data provided by the Client.
If during the execution of the agreement it appears that it is necessary to change or supplement it for proper execution, the parties will proceed to adjust the agreement in a timely manner and in mutual consultation. If the nature, scope, or content of the agreement is changed, whether or not at the request or instruction of the Client, competent authorities, etc., and the agreement is thereby changed in qualitative and/or quantitative respects, this may have consequences for what was originally agreed. As a result, the originally agreed amount may also be increased or decreased. Contractor will provide a price quote for this in advance as much as possible. An amendment to the agreement may also change the originally specified period of execution. The Client accepts the possibility of amending the agreement, including the change in price and period of execution.
If the agreement is amended, including a supplement, the Contractor is entitled to only execute it after approval has been given by the authorized person within the Contractor and the Client has agreed to the price and other conditions specified for the execution, including the time to be determined at which it will be executed. The non-execution or non-immediate execution of the amended agreement does not constitute a breach of contract by the Contractor and is no ground for the Client to terminate or cancel the agreement.
Without being in default, the Contractor may refuse a request to amend the agreement if this could have consequences in qualitative and/or quantitative respects, for example, for the activities to be performed or goods to be delivered in that context.
If the Client should default in the proper fulfillment of what he is held to towards the Contractor, the Client is liable for all damage on the part of the Contractor arising directly or indirectly therefrom.
If the Contractor agrees on a fixed fee or fixed price with the Client, the Contractor is nevertheless entitled at all times to increase this fee or price without the Client being entitled to dissolve the agreement for that reason in that case, if the price increase results from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages, etc., or on other grounds that were not reasonably foreseeable at the time the agreement was entered into.
If the price increase, other than as a result of an amendment to the agreement, exceeds 10% and takes place within three months after the conclusion of the agreement, only the Client who is entitled to invoke Title 5 Section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by a written statement, unless the Contractor is then still willing to execute the agreement on the basis of the originally agreed amount;
if the price increase results from a power or an obligation resting on the Contractor under the law;
if it has been stipulated that delivery will take place more than three months after the conclusion of the agreement;
or, in the case of delivery of a good, if it has been stipulated that delivery will take place more than three months after the purchase.
Article 4 Suspension, dissolution, and early termination of the agreement
Contractor is authorized to suspend the fulfillment of the obligations or to dissolve the agreement if the Client does not, not fully, or not timely fulfill the obligations under the agreement, if circumstances come to the Contractor’s knowledge after the conclusion of the agreement that give good reason to fear that the Client will not fulfill the obligations, if the Client was requested to provide security for the fulfillment of his obligations under the agreement upon conclusion and this security is not provided or is insufficient, or if due to the delay on the part of the Client, the Contractor can no longer be required to fulfill the agreement under the originally agreed conditions.
Furthermore, the Contractor is authorized to dissolve the agreement if circumstances arise of such a nature that fulfillment of the agreement is impossible or if other circumstances arise of such a nature that unchanged maintenance of the agreement cannot reasonably be required of the Contractor.
If the agreement is dissolved, the Contractor’s claims against the Client are immediately due and payable. If the Contractor suspends the fulfillment of the obligations, he retains his claims under the law and the agreement.
If the Contractor proceeds to suspension or dissolution, he is in no way held to compensate for damage and costs arising therefrom in any way.
If the dissolution is attributable to the Client, the Contractor is entitled to compensation for the damage, including the costs, arising directly and indirectly therefrom.
If the Client does not fulfill his obligations arising from the agreement and this non-fulfillment justifies dissolution, the Contractor is entitled to dissolve the agreement immediately and with direct effect without any obligation on his part to pay any compensation or indemnification, while the Client, by virtue of breach of contract, is indeed obliged to pay compensation or indemnification.
If the agreement is terminated prematurely by the Contractor, the Contractor will, in consultation with the Client, ensure the transfer of activities still to be performed to third parties. This is unless the termination is attributable to the Client. If the transfer of the activities entails extra costs for the Contractor, these will be charged to the Client. The Client is held to pay these costs within the period mentioned for that purpose, unless the Contractor indicates otherwise.
In the event of liquidation, of (application for) suspension of payments or bankruptcy, of seizure – if and insofar as the seizure has not been lifted within three months – at the expense of the Client, of debt restructuring or another circumstance as a result of which the Client can no longer freely dispose of his assets, the Contractor is free to terminate the agreement immediately and with direct effect or to cancel the order or agreement, without any obligation on his part to pay any compensation or indemnification.
The Contractor’s claims against the Client are in that case immediately due and payable.
If the Client cancels a placed order in whole or in part, the activities that were performed and the goods ordered or prepared for it, increased by any supply, removal, and delivery costs thereof and the labor time reserved for the execution of the agreement, will be charged in full to the Client.
Article 5 Force Majeure
Contractor is not held to fulfill any obligation towards the Client if he is hindered from doing so as a result of a circumstance that is not due to fault, and is not for his account under the law, a legal act, or generally accepted practice.
In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in the law and jurisprudence, all external causes, foreseen or unforeseen, over which the Contractor has no influence, but as a result of which the Contractor is unable to fulfill his obligations. Strikes in the Contractor’s company or of third parties are included. Contractor also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after the Contractor should have fulfilled his obligation.
Contractor may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than [object Object], each of the parties is entitled to dissolve the agreement, without obligation to compensate the other party for damage.
Insofar as the Contractor at the time of the occurrence of force majeure has already partially fulfilled his obligations under the agreement or will be able to fulfill them, and independent value can be attributed to the fulfilled or to-be-fulfilled part respectively, the Contractor is entitled to invoice the already fulfilled or to-be-fulfilled part separately. The Client is held to pay this invoice as if it were a separate agreement.
Article 6 Payment and collection costs
Payment must always be made within 14 days after the invoice date, in a manner to be indicated by the Contractor in the currency in which the invoice was issued, unless otherwise indicated in writing by the Contractor.
Contractor is entitled to invoice periodically.
If the Client fails to pay an invoice on time, the Client is in default by operation of law. The Client then owes the statutory interest. The interest on the due and payable amount will be calculated from the moment the Client is in default until the moment of payment of the full amount due.
Contractor has the right to have the payments made by the Client serve in the first place to reduce the costs, then to reduce the interest due, and finally to reduce the principal sum and the current interest. Contractor may, without being in default, refuse an offer for payment if the Client designates a different order for the allocation of the payment. Contractor may refuse full repayment of the principal sum if the interest due and current interest and collection costs are not also paid.
The Client is never entitled to set off what he owes to the Contractor. Objections to the amount of an invoice do not suspend the payment obligation. The Client who is not entitled to invoke Section 6.5.3 (Articles 231 to 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend the payment of an invoice for any other reason.
If the Client is in default or in breach in the (timely) fulfillment of his obligations, all reasonable costs to obtain satisfaction out of court are for the account of the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the Contractor has incurred higher collection costs that were reasonably necessary, the actual costs incurred qualify for compensation. Any judicial and execution costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs due.
Article 7 Retention of title
Everything delivered by the Contractor within the framework of the agreement remains the property of the Contractor until the Client has properly fulfilled all obligations under the agreement(s) concluded with the Contractor.
What is delivered by the Contractor, which falls under the retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or in any other way encumber what falls under the retention of title.
The Client must always do everything that can reasonably be expected of him to secure the property rights of the Contractor.
If third parties seize what has been delivered under retention of title or wish to establish or assert rights thereto, the Client is obliged to inform the Contractor thereof immediately. Furthermore, the Client undertakes to insure and keep insured what has been delivered under retention of title against fire, explosion, and water damage as well as against theft and to provide the policy of this insurance to the Contractor for inspection upon first request. In the event of any insurance payout, the Contractor is entitled to these funds. Insofar as necessary, the Client undertakes towards the Contractor in advance to cooperate with everything that might (appear to) be necessary or desirable in that context.
In the event that the Contractor wishes to exercise his property rights indicated in this article, the Client gives unconditional and irrevocable permission in advance to the Contractor and third parties to be designated by the Contractor to enter all those places where the Contractor’s properties are located and to take them back.
Article 8 Warranties, research and complaints, limitation period
The goods to be delivered by the Contractor meet the usual requirements and standards that can reasonably be set at the time of delivery and for which they are intended for normal use in the Netherlands. The warranty mentioned in this article applies to goods intended for use within the Netherlands. When used outside the Netherlands, the Client must verify whether the use thereof is suitable for use there and meets the conditions set for it. In that case, the Contractor may set other warranty and other conditions regarding the goods to be delivered or activities to be performed.
The warranty mentioned in paragraph 1 of this article applies for a period of [object Object] after delivery, unless the nature of the delivered goods dictates otherwise or the parties have agreed otherwise. If the warranty provided by the Contractor concerns a good produced by a third party, the warranty is limited to that provided by the producer of the good, unless otherwise stated.
Any form of warranty expires if a defect has arisen as a result of or arises from improper or inappropriate use thereof or use after the expiration date, incorrect storage or maintenance thereof by the Client and/or by third parties when, without written permission from the Contractor,
the Client or third parties have made changes to the good or have tried to make changes, other goods were attached to it that should not be attached to it, or if these were processed or treated in a manner other than prescribed.
The Client is also not entitled to a warranty claim if the defect is caused by or is the result of circumstances over which the Contractor has no influence, including weather conditions (such as, for example, but not limited to, extreme rainfall or temperatures), etc.
The Client is held to examine the delivered goods (or have them examined) immediately at the moment the goods are made available to him or the relevant activities have been performed. In doing so, the Client should examine whether the quality and/or quantity of the delivered goods corresponds with what was agreed and meets the requirements the parties have agreed upon in that regard. Any visible defects must be reported in writing to the Contractor within [object Object] after delivery. Any non-visible defects must be reported in writing to the Contractor immediately, but in any case no later than fourteen days after discovery thereof. The report must contain as detailed a description of the defect as possible, so that the Contractor is able to respond adequately. The Client must give the Contractor the opportunity to investigate a complaint (or have it investigated).
If the Client complains in time, this does not suspend his payment obligation. In that case, the Client also remains held to take delivery and pay for the other goods ordered and what he has commissioned the Contractor to do.
If a defect is reported later, the Client is no longer entitled to repair, replacement, or compensation.
If it is established that a good is defective and a complaint has been made in time, the Contractor will, within a reasonable period after return receipt thereof or, if return is reasonably not possible, written notification regarding the defect by the Client, at the Contractor’s choice, replace the defective good or ensure repair thereof or pay replacement compensation for it to the Client. In the event of replacement, the Client is held to return the replaced good to the Contractor and to provide ownership thereof to the Contractor, unless the Contractor indicates otherwise.
If it is established that a complaint is unfounded, the costs arising therefrom, including the research costs incurred on the part of the Contractor, are entirely for the account of the Client.
After the warranty period has expired, all costs for repair or replacement, including administration, shipping, and call-out costs, will be charged to the Client.
In deviation from the statutory limitation periods, the limitation period for all claims and defenses against the Contractor and the third parties involved by the Contractor in the execution of an agreement is 5 years.
Article 9 Liability
If the Contractor should be liable, this liability is limited to what is regulated in this provision.
Contractor is not liable for damage, of whatever nature, caused by the Contractor acting on incorrect and/or incomplete data provided by or on behalf of the Client.
If the Contractor should be liable for any damage, the Contractor’s liability is limited to a maximum of once the invoice value of the order, or at least to that part of the order to which the liability relates.
The Contractor’s liability is in any case always limited to the amount of the payout from his insurer in the occurring case.
Contractor is exclusively liable for direct damage.
Direct damage is exclusively understood to mean the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms, any reasonable costs incurred to have the Contractor’s defective performance conform to the agreement, insofar as these can be attributed to the Contractor, and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions. Contractor is never liable for indirect damage, including consequential damage, lost profit, missed savings, and damage due to business stagnation.
The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of the Contractor or his managerial subordinates.
Article 10 Indemnification
The Client indemnifies the Contractor against any claims from third parties who suffer damage in connection with the execution of the agreement and the cause of which is attributable to parties other than the Contractor. If the Contractor should be addressed by third parties for that reason, the Client is held to assist the Contractor both out of court and in court and to immediately do everything that may be expected of him in that case. Should the Client fail to take adequate measures, the Contractor is entitled, without notice of default, to proceed to do so himself. All costs and damage on the part of the Contractor and third parties arising therefrom are entirely for the account and risk of the Client.
Article 11 Intellectual property
Contractor reserves the rights and powers to which he is entitled under the Copyright Act and other intellectual property laws and regulations. Contractor has the right to use the knowledge increased on his part by the execution of an agreement for other purposes as well, insofar as no strictly confidential information of the Client is brought to the knowledge of third parties.
Article 12 Applicable law and disputes
Dutch law applies exclusively to all legal relationships to which the Contractor is a party, even if an obligation is wholly or partially executed abroad or if the party involved in the legal relationship has his place of residence there. The applicability of the Vienna Sales Convention is excluded.
The court in the Contractor’s place of business is exclusively competent to take cognizance of disputes, unless the law imperatively prescribes otherwise. Nevertheless, the Contractor has the right to submit the dispute to the court competent according to the law.
Parties will only appeal to the court after they have made every effort to settle a dispute in mutual consultation.
Article 13 Location and amendment of general terms and conditions
These terms and conditions have been filed with the Chamber of Commerce.
The last filed version or the version as it applied at the time of the establishment of the legal relationship with the Contractor is always applicable.
The Dutch text of the general terms and conditions is always decisive for the interpretation thereof.
