Terms and conditions
1 : General points/application
1.1 ColorConcepts hereby expressly rejects the other party’s general terms and conditions.
1.2 The general terms and conditions apply to all legal relationships between ColorConcepts and the other party. Any departure from these conditions must be set down in writing.
2: Formation/content/amendment of an agreement
2.1 All offers made by ColorConcepts shall be made without obligation, unless expressly stated otherwise. The other party may only invoke commitments made by ColorConcepts’ employees or by third parties these employees have brought in if said commitments have been confirmed in writing by ColorConcepts itself.
2.2 If amendments or additions to the agreement are made at the other party’s request then the latter will be charged an additional fee based on the tariffs used by ColorConcepts at the time they are implemented.
3.1 All prices are quoted exclusive of VAT. Any taxes, levies or other charges imposed by the authorities after the date of the offer or after the date of the agreement’s formation will be charged on.
3.2 Should ColorConcepts have undertaken to perform during a specific or indefinite period then it shall be entitled to charge on to the other party any changes to the cost base for the performance(s) that it is obliged to make occurring after the date of the offer or after the date of the agreement’s formation as the result of changes to labour costs, cost of raw materials or equipment, additional freight costs such as transportation costs, import duties and insurance, social security costs, (other) government levies or foreign currency charges, or for whatever (other) reason.
3.3 Should ColorConcepts have undertaken to perform during a specific or indefinite period then each 1 January it shall be entitled to adjust the appropriate agreed tariffs in line with the cost of living index for working families with a family income below the wage limit for compulsory health insurance, as determined by CBS (Statistics Netherlands), by informing the other party of this in writing.
4: Supply/delivery times
4.1 Delivery times agreed with ColorConcepts shall be deemed to be indicative and not a strict deadline.
4.2 Unless expressly stated otherwise, items shall be handed over ex warehouse.
4.3 ColorConcepts shall be entitled to carry out in instalments those performances it is committed to providing and shall be entitled to invoice for these instalments individually.
5.1 Invoices issued by ColorConcepts must be paid within 14 days of the invoice date in the way stipulated by ColorConcepts, subject to the proviso that ColorConcepts shall at all times reserve the right to demand payment in advance. The payment must be made effective in the agreed currency and without any deduction for an allowance and without any deferral.
5.2 Payment of the training costs must be made without the deduction of any allowance in such a way that ColorConcepts receives this payment before the training course commences.
5.3 Should the other party default on the payment of any sum then it shall owe ColorConcepts default interest for the period of that default, which shall be charged on the basis of the statutory interest rate; furthermore, all claims by ColorConcepts on the other party shall become due and payable (irrespective of whether they have already been invoiced for) and the other party shall no longer be able to invoke other payment conditions.
5.4 Extrajudicial collection charges shall be charged to the other party in accordance with the collection rates of the Netherlands Bar Association.
5.5 The other party may only submit an objection to the invoice during the payment term.
6: Items designated or provided by the other party
Should ColorConcepts perform work using items designated or provided by the other party then it shall only be responsible for the performance of this work, with the deployment of these items/equipment being at the other party’s risk.
7: Safety of employees or of a(nother) third party
Should an employee of ColorConcepts or of a(nother) third party for whose actions it is responsible under the law be at a site of the other party in use for the performance of work for the benefit of the other party then the other party shall warrant both vis-à-vis ColorConcepts and vis-à-vis this employee or (other) third party that the conditions under which the person in question is to perform the work comply with all relevant and reasonable safety requirements, this to include in particular all safety requirements applicable under the law or by virtue of regulations based on it. The other party shall comply with these safety requirements (including) as if it employed the employee in question and shall indemnify ColorConcepts against any liability that may arise in respect of this person should there be a failure to comply with the above.
8.1 On no account shall ColorConcepts be liable for any loss relating to shortcomings or (other) events that are not due to its own intent or gross negligence.
8.2 On no account can ColorConcepts be made liable by third parties other than the client for any loss caused directly or indirectly by ColorConcepts’ products and/or services.
8.3 On no account shall ColorConcepts be obliged to pay compensation that shall exceed the nominal invoice value for the performances for which compensation is being claimed.
8.4 In any case, ColorConcepts’ liability shall at all times be limited to the amount paid out by its insurer in the case in question.
8.5 With regard to all legal and contractual defences that it may invoke to avert its own liability vis-à-vis the other party, ColorConcepts stipulates that it will also invoke these defences for the benefit of its employees and non-employees for whose actions it could be liable by law.
8.6 Should ColorConcepts place an employee or (other) third party for whose action it is liable by law at the disposal of the other party in order to work under the latter’s direction or supervision then the other party shall provide adequate direction or adequate supervision respectively and shall indemnify ColorConcepts against liability for the actions of this employee or third party.
8.7 The provisions of this Article shall not apply in so far as mandatory provisions (such as the product liability scheme) shall prescribe otherwise.
9: Termination / release
Should the other party fail to fulfil any obligation arising under the agreement or fail to fulfil it properly or in time, or in the event that the other party is liquidated, has a moratorium or is placed under guardianship or has its business closed down or liquidated then all its obligations shall become payable on demand and ColorConcepts shall at its discretion be entitled – without any obligation to pay compensation and without prejudice to any other rights vested in it – to terminate the agreement in whole or part or to suspend the (further) performance of the agreement.
10: Force majeure
10.1 Should proper performance by ColorConcepts prove temporarily or permanently impossible in whole or part due to one or more circumstances that ColorConcepts is not accountable for then ColorConcepts shall be entitled to terminate the agreement in whole or part without being obliged to pay any type of compensation. Circumstances for which ColorConcepts shall not be accountable include restrictive government regulations, industrial action (including worker lockout, go-slow action etc.), sickness, bans on importing, exporting and/or re-exporting, transportation problems, suppliers failing to fulfil their obligations, production breakdowns, natural or nuclear disasters, riots, and war and/or threat of war.
10.2 The termination of the agreement shall not affect the validity of these general terms and conditions agreed between the parties.
Should it prove impossible to invoke any provision of these general terms and conditions on the grounds of reasonableness and fairness or due to its unreasonably onerous nature then the provision in question shall be given a meaning that corresponds to the original meaning as far as possible in terms of its content and purpose and that shall if necessary be less far-reaching. This shall be done in such a way that the provision can be invoked after all.
12: Applicable law/competent court
12.1 All agreements with ColorConcepts shall be governed exclusively by Dutch law.
12.2 All disputes between ColorConcepts and the client shall be adjudicated by the court of the subdistrict or district where ColorConcepts has its principal place of business, unless no later than five weeks after ColorConcepts has invoked this clause by means of a written communication to the client the latter utilises the option set down in Article 6:236n BW (Netherlands Civil Code) to submit the dispute to the court that according to the law is competent.
13: Source and amendment of conditions
13.1 These conditions have been filed with the Rotterdam Chamber of Commerce under nr. 24345285.
13.2 In all cases, it is the most recently filed version that will apply or else the version that applied at the time when the legal relationship with ColorConcepts was formed.
13.3 The Dutch text of these general terms and conditions shall prevail over any translation thereof.