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General terms and conditions

 of

Wim Pel Productions BV

established and situated in Diemen

 Filed with the Chamber of Commerce and Industry for Amsterdam in Haarlem
May 17, 2002 under number 33282390.

written by Graydon Nederland BV in Amsterdam.
Repro and Copyright are reserved. 

Article 1 Definitions

In these general terms and conditions, the following terms are used in the following sense, unless explicitly stated otherwise:

user: Wim Pel Productions BV, the user of these general terms and conditions;
client: the other party of the user;
agreement: the agreement between user and client. 

Article 2 General

2.1 These general terms and conditions apply to every offer, quotation and agreement between the user and a client to which the user has declared these general terms and conditions applicable, insofar as the parties have not specifically deviated from these general terms and conditions in writing;

2.2 The present general terms and conditions also apply to all agreements with the user, for which user makes use of the services of third parties;

2.3 Any deviations from these general terms and conditions are only valid if they have been explicitly agreed in writing;

2.4 The applicability of any other (general) terms and conditions of the client is unequivocally rejected;

2.5 If one or more of the provisions in these general terms and conditions are or become null and/or void, the other provisions of these terms and conditions remain applicable. User and client will agree to new provisions to replace the null and/or void provisions, while respecting the purpose and intent of the original provisions.

Article 3 Offers and tenders

3.1 All offers, in whatever form, are without obligation, unless the offer states a term for acceptance;

3.2 Agreements to which the user is a party, only take effect:

(a) after signature by both parties of a deed drawn up for that purpose, and only
from the day of signing, or;
(b) upon receipt of written acceptance and approval by client of an offer made by the user;
(c) in the absence thereof, by the handing over by the client to user the product to be processed and/or relevant documents and/or materials, which are necessary for accomplishing the assignment;

3.3 If the acceptance by the client deviates from the offer included in the quotation, the user is not bound by it. The agreement will then not take effect in accordance with this deviating acceptance, unless the user states otherwise;

3.4 The delivery times specified by the user are indicative and if delivery times are exceeded, client shall not be entitled to any rescission or damages, unless otherwise explicitly agreed upon by both parties;

3.5 The prices in the aforementioned offers are in Euros, exclusive of VAT and other government levies, as well as shipping and any transport and/or packaging costs, unless explicitly stated otherwise;

3.6 A composed quotation does not oblige the user to carry out a part of the assignment for the corresponding stated price;

3.7 If user and the client come to more than one agreement, these terms and conditions will apply to all subsequent agreements, regardless of whether they are explicitly declared applicable or not;

3.8 Offers or tenders do not apply to any future assignments.

Article 4 Execution of the agreement

4.1 User will execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. This on the basis of the existing state of knowledge at that time  .

4.2 User determines the manner of execution of the agreement, insofar as parties have not explicitly agreed otherwise in writing;

4.3 If and insofar as required for the proper execution of the agreement, the user has the right to have certain work carried out by third parties;

4.4 The client shall ensure that the product and / or all data, documents, materials etc. of which the user indicates that they are necessary or of which the client should reasonably understand that they are necessary for carrying out the agreement, will be timely provided to user. If the data required for the execution of the agreement have not been provided to the user in time, user has the right to postpone the execution of the agreement and / or to charge  extra costs resulting from the delay to the client in accordance with the usual rates;

4.5 User is not liable for damages of any kind, due to incorrect and / or incomplete information provided by the client, unless this inaccuracy or incompleteness should have been known by user;

4.6 If it has been agreed that the agreement will be executed in phases, the user can postpone the execution of those parts that belong to a following phase, until the client has approved the results of the preceding phase in writing;

4.7 If the user, or third parties engaged by the user, perform work in the context of the assignment, at the location of the client or a location designated by the client, the client will provide the facilities reasonably desired by those employees free of charge;

4.8 The client indemnifies the user against any claims from third parties that suffer damage in connection with the execution of the agreement and which damage is attributable to the client.

Article 5 Typesetting, printing, film or other samples/tests

5.1 Client is held to carefully check for errors and defects in typesetting, printing, film or other samples/tests received by client, whether or not they have been sent by request, and if necessary, expeditiously return these to user corrected or approved. Or, the client will swiftly inform the user in writing that the materials have been inspected and are in accordance with the order, or will inform the user of any comments on the test. Approval of the tests by the client is deemed to acknowledge that the user has correctly carried out the work preceding the tests;

5.2 Any sample/test provided at the request of the client will be charged in addition to the agreed price, unless it has been explicitly agreed that the costs of these tests are included in the price.

Article 6 Delivered material, materials provided and right of retention

6.1 Client is held to ensure that – prior to the deliverance of data, documents, equipment, and / or products – copies / shadow files are created from the respective information carriers. The client must preserve these copies / shadow files. In the event that the relevant data is lost to the user during storage or has become unusable due to damage, the client must provide the relevant data again at the request of the user;

6.2 The costs for shipping the material to user and the storage thereof will be charged to the client;

6.3 User is entitled to dispose of the delivered materials, as if these were her own ;

6.4 The goods, products, materials and data provided by the client are used for the assignment and are stored in a sufficiently secure manner;

6.5 User is entitled to retain goods, products, materials and data provided by the client until the client has fulfilled all its obligations towards the user, unless the client has provided sufficient warranty to fulfil its obligations.

Article 7 Amendment of the agreement

7.1 If it becomes apparent during the execution of the agreement that it is necessary, for the proper execution of the agreement, to change or supplement the work to be performed, the parties shall adjust the agreement accordingly in good time and mutual consultation;

7.2 If the parties agree that the agreement will be amended or supplemented, the time of completion of the assignment the execution can be influenced as a result. User will inform client of this as soon as possible;

7.3 If the change or supplement to the agreement has financial and / or qualitative consequences, the user will inform the client about this in advance;

7.4 If a fixed fee has been agreed, the user shall indicate to what extent the change or supplement to the agreement results in an exceedance of this fee .

Article 8 Contract duration and execution period

8.1 The agreement between user and client is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or the parties explicitly agree otherwise in writing;

8.2 If a term for the completion of certain work has been agreed within the term of the agreement, this is never a strict deadline. In the event that the execution period is exceeded, the client must therefore give notice of default to the user in writing.

Article 9 Research, advertising

9.1 Client is obliged to examine the performed work, or the performed order at the time of delivery, but in any case within as short a time as possible. Complaints about the work performed must be reported by the client to the user within four days of discovery. The notice of default must contain as detailed a description as possible of the shortcoming, so that the user is able to respond adequately;

9.2 If a complaint is justified, user will carry out the work as previously agreed, unless client can demonstrate this has become  useless for the client. The latter must be made known by the client in writing;

9.3 If the performance of the agreed work is no longer possible or useful, the user will only be liable within the limits of the provisions of Article 18.

Article 10 Fees

10.1 Parties can agree on a fixed fee at the conclusion of the agreement;

10.2 If no fixed fee is agreed, the fee will be determined on the basis of hours actually worked or parts thereof. The fee is calculated according to the usual hourly rates of the user, applicable for the period in which the work is performed, unless a deviating hourly rate has been agreed upon;

10.3 The fee and any cost estimates are exclusive of VAT;

10.4 For assignments with a duration of more than three months, the user may periodically charge the costs due;

10.5 If the user agrees a fixed fee or hourly rate with the client, user is nevertheless entitled to increase this fee or rate;

10.6 User may increase the fee if it becomes clear, during the execution of the work, that the originally agreed or expected amount of work was calculated and/or estimated too low and therefore in all reasonableness it cannot be expected from user to carry out the work for the originally agreed fee;

10.7 User will inform the client in writing of the intention to increase the fee or rate. User will describe the extent of the increase and the effective date;

10.8 If the client does not wish to accept the intended increase in fee or rates made known by the user, the client is entitled to terminate the agreement in writing within seven working days after the said notification, or to cancel the order against the date on which the price or rate adjustment would take effect.

Article 11 Payment

11.1 Payment must be made within 14 days of the invoice date in a manner to be indicated by the user in the currency in which is billed. Objections to the amount on the invoices do not suspend the payment obligation;

11.2 If the client fails to pay within the period of 14 days, the client is legally in default. In that case, the Client will owe an interest of 1% per month or part thereof, unless the statutory interest rate is higher, in which case the statutory interest rate will apply. The interest on the due amount will be be calculated from the moment the client is in default until the moment of payment of the full amount;

11.3 In the event of liquidation, bankruptcy, seizure of client or suspension of payment by client, the user’s claims against the client are immediately claimed and payable;

11.4 Payments are primarily deducted from the costs, subsequently from the interest still due and finally from the principal sum and the current interest.

Article 12 Retention of title

12.1 All items delivered by user, including designs, sketches, drawings, films, software, (electronic) files etc., remain the property of the user, until the client has fulfilled all its obligations from all agreements with user;

12.2 The Client is not authorized to pledge the items falling under the retention of title, nor encumber them in any other way;

12.3 If third parties seize goods delivered subject to retention of title or wish to establish or assert rights thereon, the client is obliged to notify user as soon as reasonably may be expected;

12.4 In the event that user wishes to exercise its rights of ownership as referred to in this article, client now gives unconditional and non-revocable consent to user, or third parties to be designated bý user,  to enter all those places where the users property is located and to retake these items.

Article 13 Debt Collection costs

13.1 If the client is in default or omission in the (timely) fulfilment of his obligations, all reasonable costs made in obtaining payment out of court will be payable by client. In any case, in the event of a monetary claim, the client will be charged collection costs.

13.2 If user has incurred higher costs, which were reasonably necessary, these will also qualify for reimbursement;

Article 14 Cancellation

14.1 If the client wishes to cancel an agreement after it has been concluded with the user, 10% of the agreed fee (plus VAT) will be charged as cancellation costs to the client, notwithstanding the right to full compensation for user, including lost profit.

Article 15 Interim cancellation

15.1 Unless agreed otherwise, the parties may terminate the agreement in writing at any time.

15.2 If the agreement is terminated prematurely by the client, user is entitled to compensation on account of the resulting loss of occupancy that can be made plausible, unless there are facts and circumstances which provide evidence that the termination is attributable to the user. Furthermore, the client shall then be obliged to pay the invoices for work performed up to that point, the costs incurred and the costs arising from any commitments entered into by third parties for the fulfilment of the  assignment. The preliminary results of the work carried out up to that time will be made available to the client after payment of the aforementioned costs.

15.3 If the agreement is terminated by user, user will,  in consultation with the client, ensure transfer of work to be done to another party, unless facts and circumstances causing the termination can be attributed to client.

Article 16 Suspension and dissolution

16.1 User is entitled to postpone the fulfilment of its obligations or to terminate the agreement if:

– the client does not or not fully comply with the obligations of the agreement;
– user becomes aware of circumstances, after the agreement has been concluded,
that give user reasonable grounds to fear that the client will not comply with its obligations.
In case there is good reason to fear that the client will only partly, or not properly, meet its obligations, the suspension is only allowed for as far as the shortcoming justifies it;
– the client was requested to provide security when concluding the contract
for the fulfilment of its obligations and this security is not forthcoming or is insufficient;

16.2 In addition, the user is authorized to repudiate the contract  if circumstances arise which make compliance with the agreement impossible or, to standards of reasonableness and fairness, can no longer be required to fulfil the contract, or if circumstances arise due to which unaltered continuation of the agreement cannot reasonably be expected;

16.3 If the agreement is dissolved, the claims of user on client are immediately due and payable. If the user suspends the fulfilment of its obligations, it will retain its rights under the law and the agreement;

16.4 User always reserves the right to claim compensation.

Article 17 Return of goods and materials made available by client

17.1 At the end of the agreement, the goods and materials made available by the client will be returned or destroyed, at the discretion of the client.

 Article 18 Liability

18.1 If user is liable, then this liability is limited to what is regulated in this article;

18.2 User is not liable for:

– deviations, errors and defects that have gone unnoticed by client after client has given approval or provided user with a list of required corrections.

– for damage to the materials –  necessary for fulfilment of the agreement – as provided by client and received by user -– when client has not informed user properly  of the features and nature of these materials or products at the moment the agreement was entered into 

– for indirect damage, including consequential loss, lost profit, missed savings and damage due to business stagnation;
– for unlawful use by client of the delivered goods and materials;

18.3 If user is liable for damages, liability is limited to the maximum payout granted by the insurer of user, and only for the invoice amount and only that part of the order / invoice to which the liability relates;

18.4 Any damage claims must be submitted to the user in writing immediately after the damage has occurred;

18.5 The limitations of liability for damage included in these general conditions do not apply if the damage is due to intent or gross negligence of the user or its subordinates.

Article 19 Indemnities

19.1 Client indemnifies user against claims of third parties with regard to intellectual property rights re the materials, items or data provided by client, which are used in the execution of the Agreement;

19.2 If the client provides user with information carriers, electronic files or software etc., it guarantees that the information carriers , electronic files or software etc. are free of viruses and defects.

Article 20 Risk transition

20.1 Client must accept delivery of the goods immediately after completion, or take receipt of them. If the goods are available to the client or are offered for delivery to the client, but are denied by client for whatever reason, delivery takes place by means of a written notification from user;

20.2 The risk of loss or damage of the items that are the object of the agreement will pass to the client at the moment at which these items are delivered (either factually and / or legally) to the client and are therefore controlled by client or by any third party appointed by client,  or at the moment that the goods are ready for delivery after the client has been informed of this in writing;

20.3 The conveyance of the executed assignment / goods and materials takes place at the risk of the client.

Article 21 Force Majeure

21.1 The parties are not obliged to comply with any obligation if they are prevented from doing so as a result of a circumstance that is not due to fault, by law or a legal act or by generally accepted business rules;

21.2 Under Force Majure be understood in these terms and conditions, in addition to that which is included in the law and jurisprudence, all external causes, planned or not, on which the user can not exert any influence, but as a result of which user is not able to fulfil its obligation, including work strikes in the user’s company.

21.3 User also has the right to invoke force majeure if the circumstance that prevents (further) performance occurs after user should have fulfilled his obligations;

21.4 During the period that the force majeure continues, the parties can suspend the obligations under the agreement. If this period lasts longer than two months, each of the parties will be entitled to dissolve the agreement, without any obligation to pay damages to the other party;

21.5 Insofar user at the time of the occurrence of force majeure has already performed part of its obligations under the agreement or will still be able to fulfill parts of its obligation, user is entitled to separately charge the client for the independent values of these part(s).

Article 22 Confidentiality

22.1 The parties are obliged to keep confidential all confidential information that they have received from each other or from another source in the context of their agreement. Information is considered confidential if this has been communicated by the other party, or if this results from the nature of the information;

22.2 If the user, on the basis of a statutory provision or a judicial decision, has to provide confidential information to third parties appointed by law or the competent court, and user cannot fall back on a legal reason to not comply with this, user is not liable for damages and/or compensation and neither party will be entitled to terminate the agreement pursuant to any resulting damage.

Article 23 Intellectual property and copyrights

23.1 Without prejudice to the provisions in these general terms and conditions, the user reserves the rights and powers that accrue to him on the basis of the Copyright Act;

23.2 All documents provided by the user, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are exclusively intended for use by the client and may not, without prior written permission from user,  be reproduced, made public. or brought to the notice of third parties, unless the nature of the documents provided dictates otherwise;

23.3 The User reserves the right to use the knowledge gained through the execution of the work for other purposes, in so far no confidential information is brought to the knowledge of third parties.

Article 24 Models

24.1 If a model has been shown or provided to the client, then it is presumed to have been provided as an indication only, unless it is explicitly agreed that the product to be delivered will correspond with it.

Article 25 Disputes

25.1 All disputes arising from the agreement between the parties will initially be decided exclusively by the District Court of Amsterdam or by the proficient court at the domicile of the user.  

Article 26 Applicable law

26.1 Dutch law applies to every agreement between user and client.

This document is a translation of the Dutch original. In case of discrepancy, the Dutch original version shall prevail.

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