ARTICLE 1. DEFINITIONS
1.1 General Terms and Conditions: these general terms and conditions.
1.2 Loyalty Makers: Loyalty Makers B.V. registered with the Chamber of Commerce under file number 53936132.
1.3 Client: the natural person or corporate body that has a (pre)contractual relationship with Loyalty Makers by concluding an agreement or already having concluded an agreement.
1.4 Agreement: The General Terms and Conditions, as well as the quotation of Loyalty Makers.
1.5 Party/parties: Party/parties to the agreement to be concluded.
1.6 Where these General Terms and Conditions talk of “goods” this is understood to mean both the goods to be supplied by Loyalty Makers and the services to be supplied by it, including advice and creative expressions.
1.7 Where reference is made in these General Terms and Conditions, or an agreement concluded between Loyalty Makers and Client, to an internationally defined clause (e.g.: C.O.D., ex works, C.I.F. etc.) such a clause must be understood within the meaning of the Incoterms 1990 published by the International Chamber of Commerce.
ARTICLE 2. APPLICABILITY/EXECUTION
2.1 These General Terms and Conditions apply to all quotations, agreements and supplies of Loyalty Makers, unless otherwise expressly agreed in writing.
2.2 If Client includes in his order provisions or terms and conditions that differ from, or do not occur in, these terms and conditions, these shall only be binding for Loyalty Makers if and insofar as these are expressly accepted in writing by Loyalty Makers.
2.3 Loyalty Makers shall be entitled to use third parties to carry out its agreements.
ARTICLE 3. COMMUNICATION
3.1 The version of the relevant communication received or saved by Loyalty Makers shall apply as evidence of this, except for evidence to the contrary by Client.
ARTICLE 4. EFFORT BY LOYALTY MAKERS
4.1 Where not otherwise agreed in writing Loyalty Makers guarantees that the order placed with it shall be carried out to the best of its ability exercising due care and expertise.
ARTICLE 5. QUOTATIONS
5.1 All quotations shall be without obligation unless otherwise expressly indicated.
5.2 If it is found that the details provided by Client in the inquiry or agreement were incorrect, Loyalty Makers shall have the right to adjust the prices for this.
5.3 Quotations from Loyalty Makers shall only be valid for the period indicated in the quotation. If no period is indicated, the quotation shall be valid for 14 days after the date on which the quotation was issued.
ARTICLE 6. SUPPLY OF PRINTED AND/OR OTHERWISE PROCESSED GOODS
6.1 If Loyalty Makers receives an order to supply products specially processed or assembled for Client, Client shall be obliged to deliver directly reproducible material of good quality.
6.2 Loyalty Makers shall only be obliged to send a proof to Client for approval beforehand if this is stipulated by Client in writing before issuing the order. In this case Loyalty Makers shall undertake at the latest five weeks after receipt of the order to do so and after receipt of the materials to be reproduced to submit a proof to Client, which proof shall be deemed to be approved if there is no written response to the proof within five working days.
6.3 All costs of the printed matter or related thereto shall be charged separately and shall not be included in the agreed prices unless the opposite is expressly agreed.
ARTICLE 7. ADVISORY WORK AND PRODUCT DEVELOPMENT
7.1 If Loyalty Makers acts as an adviser it shall be obliged to represent all the interests of Client to the best of its knowledge and ability and if required to act as an adviser.
7.2 If Loyalty Makers acts as an adviser it shall treat all information made available by Client as strictly confidential, even after the end of the relationship. For its part Client shall be obliged to keep confidential everything that comes to its knowledge relating to the business of Loyalty Makers, its products, advice and/or services.
7.3 In case of product development, advice for promotional products to be used, advice relating to creative concepts, quotations for extended projects whether or not with printed and/or otherwise processed products, national or international market research into specific products or product inquiries for products not specifically described, Client shall in all cases which are not specified in the supply of specifically described goods pay a fee in the amount of an hourly rate or fixed rate agreed between parties beforehand.
ARTICLE 8. AGREEMENT/DELIVERY TIME
8.1 The agreement shall run from the time when the signed quotation and the materials required for the execution of the agreement have been received by Loyalty Makers.
8.2 The time of delivery indicated by Loyalty Makers shall always be indicative, unless expressly indicated in writing that it is a deadline. Even in the case of an agreed deadline, Loyalty Makers shall only be in default, after Client has given him notice of default in writing.
8.3 The delivery time shall commence on the latest of the following dates:
A. the date of creation of the agreement.
B. the date of receipt by Loyalty Makers of the documents, data, licences and so on necessary for the execution of the agreement.
C. the date of receipt by Loyalty Makers of what must be paid by Client according to the agreement where applicable by payment in advance.
8.4 If the delivery is fully or partly prevented by force majeure, Loyalty Makers shall be entitled to postpone delivery, or to cancel the agreement where it has not been executed, in full or in part, and to demand payment for the parts that have been executed, all without any obligation to pay compensation to Client.
8.5 Force majeure in these General Terms and Conditions of sale and delivery shall be understood to mean any circumstance beyond the control of Loyalty Makers – even if this had already been foreseen at the time of the creation of the agreement – that permanently or temporarily prevents this fulfilment of the agreement, as well as where not already included, war, danger of war, civil war, riot, strike, lock-out, transport difficulties, fire and/or serious disruptions to the business of Loyalty Makers or of its supplier.
8.6 Loyalty Makers shall retain the right in case of products specially assembled for Client, to deliver and to invoice a maximum of 10% more or less than the agreed quantity.
8.7 The sending of goods in parts by Loyalty Makers, after proper consultation beforehand, shall be permitted where each separate consignment shall be paid for.
8.8 Unless otherwise agreed in writing, notwithstanding what shall be provided for this regarding prices, the prices agreed by Loyalty Makers shall be based on delivery ex works, warehouse or other storage place, excluding value added tax, import obligations or other taxes, levies or obligations and excluding the costs of loading and unloading, transport and insurance.
8.9 Unless otherwise agreed in writing delivery of goods shall be ex warehouse in which case the goods shall be deemed to have been delivered by Loyalty Makers and to be accepted by Client as soon as the goods have been offered to Client and/or as soon as the goods have been loaded in or on the means of transport.
8.10 Unless otherwise agreed in writing the transport shall be carried out for risk and account of Client, even if the carrier has expressly provided that all transport documents must state that all damage as a result of the transport shall be for account and risk of the sender.
8.11 If Loyalty Makers has made samples available to Client, Client shall be obliged to return the samples to Loyalty Makers within fourteen days after receipt undamaged and in the original packaging free of charge.
8.12 If Loyalty Makers shows or provides a model, sample or example, this shall only be done by way of indication: the characteristics of the goods to be delivered may differ from the sample, model or example. The provisions inArticle 3 shall apply accordingly.
ARTICLE 9. CHANGE OF ORDER
9.1 All changes in the order, either by order of Client, or as a result of the fact that due to any circumstances whatever, a different execution is necessary, shall be regarded as additional work if further costs are associated with this. These shall be invoiced to Client accordingly.
9.2 If, due to circumstances unknown at the time of the quotation or the order confirmation, Loyalty Makers must carry out more work than agreed, or work must be carried out under circumstances that are more difficult than was known to it upon entering into the agreement, Loyalty Makers shall be entitled to charge the resultant additional costs to Client. If Client cannot agree to the additional costs involved it shall have the right to cancel that part of the order not yet carried out.
9.3 If Client does not wish to accept a rate change, Client shall have the right within seven days after notification of the rate change to make this known in writing.
ARTICLE 10. COMPLAINTS
10.1 Complaints relating to externally visible faults must be made in writing within eight days after delivery of the goods; if this period is exceeded Loyalty Makers shall not be obliged to any form of compensation.
10.2 Complaints relating to faults not externally visible must be made in writing within eight days after they are noticed until three months at the latest after delivery of the goods, which period shall be regarded as an expiry period.
10.3 Complaints relating to the amount of the invoices sent by Loyalty Makers must be reported in writing within eight days after date of invoice, which period shall be regarded as an expiry period.
ARTICLE 11. RETENTION OF TITLE
11.1 Loyalty Makers shall retain the title for all goods delivered by it to Client until the purchase price for all these goods has been paid in full.
11.2 If Loyalty Makers carries out work for the Client to be paid for under the agreement concluded with Client, the retained title shall also apply until Client has also paid this claim of Loyalty Makers in full.
11.3 The retention of title shall also apply with respect to claims that Loyalty Makers may acquire against Client because of Client’s failure to fulfil one or more of its obligations towards Loyalty Makers.
11.4 Until the title for the goods delivered has passed to Client it may not pledge the goods or grant a third party any right to them other than during the normal course of its business, where Client undertakes in case of sale on credit, to stipulate a retention of title on the basis of the provisions in thisArticle.
11.5 Client shall undertake not to cede or to pledge to third parties claims that it has acquired against its customers and also undertakes to pledge to it the claims referred to, as soon as Loyalty Makers has notified its wish for this, in the way indicated inArticle 3:239 BW (Dutch Civil Code) as additional security for its claims for any reason whatsoever against Client.
11.6 If Client defaults in the fulfilment of its payment obligations to Loyalty Makers, Loyalty Makers shall be entitled to take back the goods delivered under retention of title. After taking them back Client shall be credited with the market value, which in no case shall be higher than the original purchase price less the costs incurred for taking them back.
ARTICLE 12. RIGHTS OF INTELLECTUAL PROPERTY
12.1 All rights of intellectual property to all analyses, documentation, reports, quotations, as well as preparatory material for this, to be made available by virtue of the agreement, shall rest only with Loyalty Makers or its licensors. Client shall only acquire the non-exclusive rights of use and powers that are expressly granted by these terms and conditions or otherwise and for the rest it shall not duplicate the above-mentioned materials or make copies of them.
12.2 The Client shall not be permitted to remove or to change any indication regarding copyrights, trademarks, trade names or other intellectual property rights from the works referred to in the first paragraph.
12.3 All drawings, plans, diagrams, samples, models, tools, etc. that are used by Loyalty Makers shall, even if they are delivered to The Client, also remain the intellectual and/or physical property of Loyalty Makers and may therefore, subject to the prior written consent of Loyalty Makers, not be used for any purpose other than execution of the agreement between Loyalty Makers and Client.
12.4 Loyalty Makers shall indemnify Client for claims of third parties, relating to the goods that have come from Loyalty Makers referred to in the previous paragraph 12.3, concerning intellectual property rights.
ARTICLE 13. TERMS AND CONDITIONS OF PAYMENT
13.1 Client must pay the account issued by Loyalty Makers via transfer.
13.2 Payments must be made at the most 14 days after the issue of the account, unless otherwise agreed in writing. After 30 days have passed after the date of invoice the Client who does not pay on time shall be legally in default, without notice of default being required for this.
13.3 Unless expressly agreed otherwise, all payments by Client, however made, shall in the first place be deducted from the costs, then deducted from the interest due and finally deducted from the principal amount of the unpaid account(s).
13.4 In case of late payment Client shall, in addition to the amount due and the interest thereon in the amount of 2% above the statutory interest rate with a minimum of 12% per annum on the outstanding balance, be obliged to full payment of both extra-judicial and judicial collection costs, including the costs for solicitors, bailiffs and collection agencies. The extra-judicial collection costs, provided they are a minimum of Eur 100.00, are calculated on the principal amount payable and as follows:
on the first Eur 3,000.00 15%
on the additional amount up to Eur 6,000.00 10%
on the additional amount up to Eur 15,000.00 8%
on the additional amount up to Eur 60,000.00 5%
on the additional amount above Eur 60,000.00 3%
13.5 Should Loyalty Makers be in default from that time all claims outstanding by Loyalty Makers against Client shall be immediately payable.
13.6 Unless expressly agreed otherwise all payments of Client, however made, shall in the first place be deducted from the costs, then deducted from the interest due and finally deducted from the principal amount of the unpaid account(s).
13.7 The claim for payment shall be payable immediately if Client is declared bankrupt, applies for suspension of payment or the total assets of Client are seized, Client dies and in addition, if it goes into liquidation or is wound up.
13.8 In the above cases Loyalty Makers shall also have the right to terminate or to suspend the agreement or the part thereof not yet executed without notice of default or judicial intervention, notwithstanding the right of Loyalty Makers to demand compensation for any damage that may arise for it as a result.
ARTICLE 14. LIABILITY
14.1 Loyalty Makers shall accept legal obligations to pay compensation where that is apparent from thisArticle.
14.2 The total liability of Loyalty Makers for imputable failure in the fulfilment of the agreement shall be limited to compensation for direct damage up to a maximum amount of the price stipulated for this agreement (excluding VAT). If the agreement is primarily a continuing performance agreement with a term of more than six months, the price stipulated shall be set at the total of the payments (excluding VAT) stipulated for three months. In no case shall the total compensation for direct damage however amount to more than Eur 1,000.00.
14.3 Liability of Loyalty Makers for indirect damage, including consequential damage, loss of profit, lost savings, loss of (business) data and damage due to business interruption, shall be excluded.
14.4 Apart from the cases referred to inArticle 14.2 no liability for compensation shall rest with Loyalty Makers, irrespective of the reason on which action for compensation may be based. The maximum amounts referred to inArticle 10.2 shall however lapse if and insofar as the damage is the result of intent or gross negligence of Loyalty Makers.
14.5 The liability of Loyalty Makers due to imputable failure in the fulfilment of an agreement shall only arise if Client gives Loyalty Makers notice of default without delay and clearly in writing, also setting a reasonable period to rectify the failure, and even after this period Loyalty Makers imputably continues to fail in the fulfilment of its obligations. The notice of default must include as detailed as possible a description of the failure, so that Loyalty Makers is able to respond adequately.
14.6 The condition for the occurrence of any right to compensation is always that Client shall report the damage to Loyalty Makers in writing within 2 (two) weeks after its occurrence.
14.7 Client shall indemnify Loyalty Makers for all claims of third parties.
ARTICLE 15. RETURN OF HIRED AND LOANED GOODS
15.1 If Loyalty Makers has hired and/or loaned goods to Client during the execution of the agreement, whether or not in return for payment, Loyalty Makers shall be obliged to return these goods within fourteen (14) days after termination of the agreement, for any reason whatever, in their original condition, free of faults and in full. The period referred to for this shall be deemed to be a deadline.
15.2 If Loyalty Makers, for any reason whatever, remains in default with the obligation referred to in paragraph 1, Loyalty Makers shall have the right to recover the resultant damage and costs, including the costs of replacement and loss of rental income, from Loyalty Makers, notwithstanding the other rights falling to Loyalty Makers in this respect.
ARTICLE 16. FORCE MAJEURE
16.1 In case of force majeure, which in any case shall be understood to mean malfunctions or failure of the telecommunications infrastructure, power cuts, internal disturbances, mobilisation, war, traffic congestion, strike, lock-out, business disturbances, delay in supply, fire, flood and in the case of import and export restrictions, irrespective of the reason for this, where Loyalty Makers is not in a position to deliver and as a result of which fulfilment of the agreement cannot reasonably be demanded of Loyalty Makers, the execution of the agreement shall be suspended, or the agreement shall be terminated, all without any obligation to pay compensation.
ARTICLE 17. DURATION AND TERMINATION
17.1 The agreement shall be entered into for the duration of the project, unless otherwise agreed.
17.2 If Client does not fulfil any of its obligations under the agreement or based on these terms and conditions Loyalty Makers shall be entitled to cancel all agreements concluded with Client concerned without notice of default or judicial intervention being required for this and notwithstanding the right of Loyalty Makers to compensation for damages, loss of profit and interest.
ARTICLE 18. CONFIDENTIALITY
18.1 Parties undertake to maintain confidentiality in respect of all confidential information that they receive about the enterprise from the other party. Parties shall also impose this obligation on their employees as well as on third parties used by them to execute the agreement between parties.
18.2 Information shall in any case be deemed to be confidential if this is indicated to be so by one of the parties.
ARTICLE 19. CHANGES TO GENERAL TERMS AND CONDITIONS
19.1 Loyalty Makers shall retain the right to change or supplement these terms and conditions.
19.2 Changes shall also apply with regard to agreements already concluded taking into account a period of 30 days after notification of the change on the website of Loyalty Makers or by electronic messaging. Changes of minor importance may be made at all times.
19.3 If Client does not want to accept a change to these terms and conditions, he can up until the date on which the new terms and conditions come into force cancel the agreement as of this date or on the date of receipt of the termination if this is after the commencement date of the change.
ARTICLE 20. DISPUTES/APPLICABLE LAW/CHOICE OF FORUM
20.1 Dutch law shall apply to all agreements to which these terms and conditions apply in full or in part.
20.2 Where not otherwise specified by the rules of mandatory law, all disputes that may arise with reference to the agreement shall be submitted to the competent Dutch court in Amsterdam.
20.3 Where not otherwise expressly agreed in writing all legal claims arising from these General Terms and Conditions for Client shall lapse at the end of one year from the date of delivery.
ARTICLE 21. FINAL PROVISIONS
21.1 The headings above theArticles used in these general terms and conditions are only indicative and may not be used for interpretation purposes relating to what is included in theArticles.
21.2 If these General Terms and Conditions are used in another language then in case of any inconsistency between the Dutch, German, English and/or French version the Dutch version shall prevail.
21.3 Change to management or legal form shall not affect the agreement.
21.3 Where not otherwise specified by the rules of mandatory law, all disputes that may arise in relation to the agreement shall be submitted to the competent Dutch court in Amsterdam.
21.4 Partial nullity: If a provision from the agreement and/or the General Terms and Conditions is found to be null, this shall not affect the validity of the whole agreement/General Terms and Conditions.
21.5 Parties shall determine (a) new provisions(s) to replace it, which as far as legally possible set(s) out the intention of the original agreement/General Terms and Conditions.
If after reading our General Terms and Conditions you have any questions, complaints or comments about these General Terms and Conditions, then please contact by e-mail:
Loyalty Makers B.V.
1382 AD Weesp
Tel: +31 20 214 33 00
Loyalty Makers BV ENG version 1.3