Terms and Conditions
1. Introduction
1.1. These General Conditions (referred to below as the Conditions) apply, to the exclusion of any other general conditions, to agreements to which WAVERY PRODUCTIONS B.V. (referred to below as WAVERY) is a party and to all quotations, offers, orders, order confirmations, deliveries, services, agency, invoices and pre-contractual relationships regarding WAVERY.
1.2. Any departures from or additions to these Conditions may be invoked only insofar as they have been expressly confirmed in the form a separate written statement by WAVERY.
1.3. An agreement between WAVERY’s other party (referred to below as the Other Party) and a third party (for instance the rightful owner, referred to below as the Rightful Owner) concluded by or through the intermediary of WAVERY implies an independent right of WAVERY to a fee for its intermediary activities in addition to its rights of collection, including the collection of the amounts to which the third party is entitled.
1.4 If and insofar as a provision of these Conditions or of the agreement between the Other Party and WAVERY conflicts with a provision of the general conditions of the Rightful Owner or with a provision of the agreement between the Other Party and the Rightful Owner, the provision that applies in the relationship between the Other Party and the Rightful Owner will take precedence over the provision that applies in the relationship between the Other Party and WAVERY.
2. Offers, prices and the granting of options
2.1. All offers, made in any form whatsoever, are without any commitment, unless they set a term for acceptance. If an offer made without any commitment is accepted, WAVERY will have the right within 15 working days of receipt of the offer to revoke it without stating any reasons, after which WAVERY and the Rightful Owner will have no obligation whatsoever towards the Other Party, therefore also no obligation to negotiate or continue the negotiations. WAVERY will confirm an agreement in writing. Any agreements previously made or undertakings previously given that have not been confirmed by it in writing will lapse.
2.2. All offers – if an agreement is involved between the Other Party and a Rightful Owner – are made subject to the condition that the Rightful Owner formally accepts the content of the agreement.
2.3. All prices quoted are exclusive of VAT, unless otherwise expressly stated. The sales price is based on the prices, rates, wages, taxes, duties, charges, freight costs, etc. that apply at the time of the confirmation. In the event of any subsequent increase, WAVERY will have the right to change agreed prices accordingly, even if the increase takes place as a result of circumstances that were foreseeable when the offer was made or accepted or the order was confirmed. Insofar as a price adjustment must be made by WAVERY within three months of the conclusion of the agreement already, the Other Party will have the right to dissolve the agreement immediately after being informed of the price increase.
2.4. If the Other Party gives specific instructions in respect of an order that require extraordinary attention and effort on the part of WAVERY, WAVERY will have the right to charge the extra time and costs involved to the Other Party.
2.5. Statements made by WAVERY in pictures, drawings, catalogues, etc. regarding quantity, packaging, dimensions, weight, colour, content, composition, etc. must be considered approximations.
2.6. WAVERY will have the right to perform in parts and to claim payment of the part of an order that has been performed, in accordance with Articles 9 et seq.
2.7. Insofar as WAVERY accepts work that WAVERY in its turn contracts out in full or in part, the Other Party authorises WAVERY to accept on behalf of the Other Party any conditions stipulated by third parties. By way of an example, reference is made to the Delivery Conditions for the Graphics Industry filed with the Registrar of the Amsterdam Court on 6 April 2007 under number 68/2007. In such a situation WAVERY will furthermore have the right to invoke against the Other Party the conditions stipulated by the third party.
2.8. The granting of an option will be interpreted below as the granting of a right for a specific agreed period – to the exclusion of third parties – to contact the Rightful Owner of a specific ‘character’ or other intellectual property right in order to conclude an agreement in that context subject to conditions.
2.9. The granting of an option will take place in accordance with the following procedure: the right desired will be specified by the Other Party as accurately as possible. On that basis WAVERY will indicate to what extent the Rightful Owner’s wishes can be met. If the Other Party wishes to accept the possible granting of an option, it must immediately, in evidence of its acceptance:
1. pay the administrative costs specified by WAVERY; and
2. pay the (non-refundable and non-creditable) one-off fee per option grant.
The amounts referred to in 1 and 2 most be credited within three days of acceptance by the Other Party to an account specified by WAVERY. If that condition has not been met, for any reason whatsoever, WAVERY will not be bound by the aforesaid option grant. The costs and fee referred to in 1 and 2, respectively, are non-refundable. The fee per option grant referred to in 2 will be deducted from the amount due for the granting of the right in question if an agreement in respect of that right is concluded between the Rightful Owner and the Other Party before the end of the option period.
3. Delivery
Any delivery periods stated will not be absolute deadlines, unless otherwise agreed in writing. If such a period is exceeded, the Other Party must give WAVERY a period, equal to the period initially agreed, within which it can perform after all. The mere exceeding of the deadline will in no event entitle the Other Party to claim dissolution or annulment of the agreement or any damages. Unless otherwise agreed, the Other Party will have the right to dissolve the agreement if WAVERY has still not performed at the end of the second period, extended by a 30-day waiting period.
4. Force majeure
4.1. The Other Party cannot demand performance by WAVERY of obligations of WAVERY under the agreement if WAVERY’s non-performance or late performance is directly or indirectly due to or the result of an event of force majeure. In that case WAVERY will not be to blame for any failure to perform.
4.2. Force majeure includes but is not limited to the following events and situations: decisions and measures of any public authority, the absence of permits required or other formalities of public authorities of any nature whatsoever, conflicts in the workplace, shortage of staff, shortage of raw materials or parts, lack of or delays in transport, theft, loss of possession, destruction of or damage to operating assets or data, and non-performance, late performance or inadequate performance by a supplier, Rightful Owner or other contracting party of WAVERY. Force majeure also includes circumstances that complicate the performance of contractual obligations by WAVERY; this also includes failure to comply with the quality requirements stipulated by WAVERY for products to be supplied by third parties.
4.3. All such events will discharge WAVERY from any and all liability and will give WAVERY the right to terminate or dissolve the agreement in full or in part, without being required to pay any damages whatsoever. The provisions of Article 3 regarding dissolution of the agreement by the Other Party will not apply, unless the event of force majeure lasts longer than four months. In that case the Other Party will be permitted to dissolve the agreement in accordance with Article 3, after sending WAVERY a letter by registered post. In that case WAVERY will not be required to pay any damages whatsoever.
4.4. Neither of the parties may invoke any limitation or exclusion of its liability insofar as that liability arises from intent or wilful recklessness on the part of that party itself or its management.
5. Warranties
5.1. All products supplied by WAVERY will be supplied – insofar as applicable – under the factory warranty and subject to the warranty conditions applied by the manufacturer. However, WAVERY does not independently assumed the warranty obligations in respect of products manufactured by third parties, but will merely be required to assist the Other Party in invoking the Other Party’s rights against the manufacturer.
5.2. WAVERY will furthermore use its best endeavours to perform its work to the best of its ability. Obvious, gross and clearly identifiable departure from that rule may be grounds for a complaint under Article 6.
5.3. WAVERY’s products and activities will be manufactured and performed, respectively, in accordance with customary standards regarding dimensions, quality, deviations, tolerances, thickness, etc. At the Other Party’s request they will be confirmed in writing before the performance of the order.
5.4. An order will be performed on the basis of the specifications stated by the Other Party, for which it is therefore responsible. The Other Party will be given the opportunity to accept the model or the proof produced, if any. WAVERY will comply to the extent possible with any subsequent departures from instructions previously given by the Other Party; any errors in the products that arise during, after or due to the compliance with such departures will be for the Other Party’s account and risk. Colourfastness, possible deviations in colour and non-compliance with specific requirements stipulated by the Other Party after it its acceptance (whether or not tacit) of the design, sample or proof are expressly not guaranteed.
6. Complaints
6.1. Within ten days after delivery by WAVERY, the Other Party must inform WAVERY accurately and in detail of any complaints that it may have in respect of the products delivered, on pain of forfeiture of the right to later claim that the performance was not in conformity with the agreement.
6.2. If WAVERY finds the Other Party’s objections to be valid, WAVERY will have the right – at its option – either to perform in accordance with the parties’ original intention after all, to make the necessary improvements, or to apply a reasonable price reduction. The Other Party will have the right to dissolve the agreement and/or to claim damages only insofar as justified in light of WAVERY's breach.
6.3. Goods sold may be returned to WAVERY, for any reason whatsoever, only with WAVERY’s prior written consent and in accordance with its shipping and other instructions. Transport and all the related costs will be payable by the Other Party. The products will at all times be for the Other Party’s account and risk.
6.4. Failure by the Other Party to comply with the instructions and directions for use in respect of WAVERY’s performance will release WAVERY from any and all liability. Any loss resulting from actions, omissions or other behaviour of the Other Party contrary to the instructions or directions given by WAVERY must be reimbursed to or via WAVERY in full.
7. Liability
7.1. WAVERY will be required to reimburse only direct loss caused by an act or omission on the part of WAVERY, its employees or other persons engaged by it in the performance of the agreement, which loss reasonably qualifies for compensation in the circumstances of the case, in any event including but not limited to the nature of the liability or the legal relationship that exists between the parties. WAVERY will not be required to reimburse loss in excess of the amount paid by the Other Party under the agreement in question. WAVERY will not be required to reimburse any indirect loss, such as loss of turnover, loss of profit, benefits not obtained, (other) consequential loss or any loss related to pre-contractual liability or the non-conclusion of an agreement.
7.2. The Other Party must indemnify WAVERY at its first requests against any third-party claims for reimbursement of loss resulting from or in connection with the agreement.
7.3. The provisions of Article 4.4 will apply accordingly.
8. Passing of risk in products
The products will be at the Other Party’s risk the moment they leave one of WAVERY’s warehouses or other places where they are stored awaiting shipment to the Other Party. The Other Party will then be liable for all direct and/or indirect damage to those products.
9. Payment
9.1. The place of payment is WAVERY’s office in Rijswijk, the Netherlands, or a bank or giro account to be designated by it. The Other Party will not have a right of setoff. Except insofar as otherwise expressly agreed in writing, all payments must at all times be made without any discount or settlement (free from cheque or other payment costs, of any nature whatsoever) within 15 days of the invoice date, or in any event within the term specified in the invoice. The Other Party will be in default upon the mere expiry of the payment term, also without any notice of default having been given.
9.2. Any complaints regarding invoices must be filed with WAVERY in writing within ten days of the invoice date, failing which the Other Party will be deemed to have accepted the invoice as correct.
9.3. All claims of WAVERY will fall due immediately and must be paid in advance if a petition in the Other Party’s bankruptcy is filed or if it applies for a suspension of payment, liquidates its business or dies, and furthermore in all circumstances in which the recovery of WAVERY’s claim might be jeopardised. In those cases WAVERY will furthermore have the right to suspend all activities, to order the Other Party no longer to exercise its rights under the agreement or to make that impossible for the Other Party, or to take back or remove products delivered or sold, until or unless security is provided in the manner set out in Article 11.
10. Late payment; measures
10.1. If the payment term referred to in Article 9 is exceeded, the Other Party will owe WAVERY interest at the rate of 1% per month on the outstanding amounts payable to WAVERY by the Other Party, or the statutory interest within the meaning of Article 6:119a of the Dutch Civil Code if the latter is higher than 1% per month.
10.2. The Other Party will furthermore be required to pay WAVERY any and all costs of collection out of court, including the fees charged by the solicitors and bailiffs engaged by WAVERY and all the other costs of collection in the broadest sense of the word. The aforesaid out-of-court costs of collection amount to at least 15% of the amount payable to WAVERY by the Other Party, subject to a minimum of € 75, excluding VAT.
10.3. The above furthermore applies to all costs of out-of-court measures and legal and/or expert assistance incurred by WAVERY in exercising its rights against the Other Party.
10.4. If WAVERY is exposed to any exchange-rate risk in connection with its transactions with or for the benefit of the Other Party, WAVERY will be entitled – in addition to other rights it may have – to full compensation of any exchange-rate loss that arises after the end of any payment period.
11. Security
11.1. Before performing the agreement, until payment has been made, WAVERY will have the right to demand of the Other Party that it provide security to WAVERY’s satisfaction for the fulfilment of its obligations. WAVERY may at any time have goods delivered COD (cash on delivery).
11.2. If the Other Party fails to comply with a request to provide security, WAVERY will have the right if it so wishes to dissolve or terminate the agreement in full or in part, whereby the Other Party will be required to reimburse all the loss consequently incurred by WAVERY, and the Other Party will furthermore forfeit to WAVERY a penalty, payable immediately, of 20% of the invoice amount related to the termination or dissolution. WAVERY will also have that right of dissolution or termination subject to damages as referred to here in all other cases of breach by the Other Party.
12. Retention of title; pledge
All products sold will remain WAVERY’s property until the Other Party has fulfilled all its obligations under the agreement in question and has paid WAVERY any related claims. In respect of all other obligations of the Other Party towards WAVERY to which the retention of title cannot apply, WAVERY may demand of the Other Party that it pledge goods to it, in which pledging the Other Party must fully cooperate.
13. Performance in excess of order
If WAVERY has performed in excess of an order initially given by the Other Party, WAVERY will be entitled to compensation pro rata to such performance in excess.
14. Industrial/intellectual property rights
14.1. If no arrangement has been made regarding the ownership of industrial and intellectual property rights in respect of the outcome of the performance of an order, WAVERY reserves the patent right and other industrial and intellectual property rights.
14.2. All drawings, calculations, drafts, technical data and other specific documents will remain WAVERY’s inalienable property.
14.3. The Other Party must return the documents referred to in Article 14.2 to WAVERY at its first request.
14.4. No part of anything that the Other Party has received from WAVERY or that has come to its attention on the basis of documents as referred to in Article 14.2 may be multiplied and/or made public by means of print, photocopy, microfilm or any other means without WAVERY’s prior written consent.
14.5. Upon violation of the provision of Article 14.4 the Other Party will forfeit to WAVERY a penalty payable immediately in the amount of € 5,000 per event or, at WAVERY’s option, of € 5,000 per week in which the violation continues, without prejudice to WAVERY’s right to claim full damages in addition to that penalty.
15. Representation
If the Other Party acts on behalf of a third party, it will be jointly and severally liable towards WAVERY, without prejudice to that third party’s liability, for the performance of all obligations by that third party.
16. Jurisdiction
Any and all disputes between WAVERY and the Other Party will be subject to the exclusive jurisdiction of the court in WAVERY’s place of business. WAVERY will furthermore have the right to submit disputes to the court of the Other Party’s place of business. The Other Party is expressly not entitled to submit disputes to the court of the Other Party’s place of business.
17. Conversion
Voidness or voidability of any provision of these Conditions or of agreements governed by these Conditions will not affect the validity of the other provisions. In that case the parties will furthermore consult in order to replace the void or voidable provision with a provision that does justice to the parties’ intentions to the extent possible but that is valid and enforceable.
18. Governing law
These Conditions and all agreements and other obligations between the parties are governed by Dutch law, to the exclusion, however, to the extent possible, of the Vienna Sales Convention.
19. Translation
An English translation has been made of these Dutch Conditions; in the event of conflict or differences in interpretation between the Dutch text and the translation, the Dutch Conditions will apply.
Filed with the Chamber of Commerce in The Hague, the Netherlands, under number 27097780.
WAVERY PRODUCTIONS B.V.
Polakweg 14C
2288 GG Rijswijk
1.1. These General Conditions (referred to below as the Conditions) apply, to the exclusion of any other general conditions, to agreements to which WAVERY PRODUCTIONS B.V. (referred to below as WAVERY) is a party and to all quotations, offers, orders, order confirmations, deliveries, services, agency, invoices and pre-contractual relationships regarding WAVERY.
1.2. Any departures from or additions to these Conditions may be invoked only insofar as they have been expressly confirmed in the form a separate written statement by WAVERY.
1.3. An agreement between WAVERY’s other party (referred to below as the Other Party) and a third party (for instance the rightful owner, referred to below as the Rightful Owner) concluded by or through the intermediary of WAVERY implies an independent right of WAVERY to a fee for its intermediary activities in addition to its rights of collection, including the collection of the amounts to which the third party is entitled.
1.4 If and insofar as a provision of these Conditions or of the agreement between the Other Party and WAVERY conflicts with a provision of the general conditions of the Rightful Owner or with a provision of the agreement between the Other Party and the Rightful Owner, the provision that applies in the relationship between the Other Party and the Rightful Owner will take precedence over the provision that applies in the relationship between the Other Party and WAVERY.
2. Offers, prices and the granting of options
2.1. All offers, made in any form whatsoever, are without any commitment, unless they set a term for acceptance. If an offer made without any commitment is accepted, WAVERY will have the right within 15 working days of receipt of the offer to revoke it without stating any reasons, after which WAVERY and the Rightful Owner will have no obligation whatsoever towards the Other Party, therefore also no obligation to negotiate or continue the negotiations. WAVERY will confirm an agreement in writing. Any agreements previously made or undertakings previously given that have not been confirmed by it in writing will lapse.
2.2. All offers – if an agreement is involved between the Other Party and a Rightful Owner – are made subject to the condition that the Rightful Owner formally accepts the content of the agreement.
2.3. All prices quoted are exclusive of VAT, unless otherwise expressly stated. The sales price is based on the prices, rates, wages, taxes, duties, charges, freight costs, etc. that apply at the time of the confirmation. In the event of any subsequent increase, WAVERY will have the right to change agreed prices accordingly, even if the increase takes place as a result of circumstances that were foreseeable when the offer was made or accepted or the order was confirmed. Insofar as a price adjustment must be made by WAVERY within three months of the conclusion of the agreement already, the Other Party will have the right to dissolve the agreement immediately after being informed of the price increase.
2.4. If the Other Party gives specific instructions in respect of an order that require extraordinary attention and effort on the part of WAVERY, WAVERY will have the right to charge the extra time and costs involved to the Other Party.
2.5. Statements made by WAVERY in pictures, drawings, catalogues, etc. regarding quantity, packaging, dimensions, weight, colour, content, composition, etc. must be considered approximations.
2.6. WAVERY will have the right to perform in parts and to claim payment of the part of an order that has been performed, in accordance with Articles 9 et seq.
2.7. Insofar as WAVERY accepts work that WAVERY in its turn contracts out in full or in part, the Other Party authorises WAVERY to accept on behalf of the Other Party any conditions stipulated by third parties. By way of an example, reference is made to the Delivery Conditions for the Graphics Industry filed with the Registrar of the Amsterdam Court on 6 April 2007 under number 68/2007. In such a situation WAVERY will furthermore have the right to invoke against the Other Party the conditions stipulated by the third party.
2.8. The granting of an option will be interpreted below as the granting of a right for a specific agreed period – to the exclusion of third parties – to contact the Rightful Owner of a specific ‘character’ or other intellectual property right in order to conclude an agreement in that context subject to conditions.
2.9. The granting of an option will take place in accordance with the following procedure: the right desired will be specified by the Other Party as accurately as possible. On that basis WAVERY will indicate to what extent the Rightful Owner’s wishes can be met. If the Other Party wishes to accept the possible granting of an option, it must immediately, in evidence of its acceptance:
1. pay the administrative costs specified by WAVERY; and
2. pay the (non-refundable and non-creditable) one-off fee per option grant.
The amounts referred to in 1 and 2 most be credited within three days of acceptance by the Other Party to an account specified by WAVERY. If that condition has not been met, for any reason whatsoever, WAVERY will not be bound by the aforesaid option grant. The costs and fee referred to in 1 and 2, respectively, are non-refundable. The fee per option grant referred to in 2 will be deducted from the amount due for the granting of the right in question if an agreement in respect of that right is concluded between the Rightful Owner and the Other Party before the end of the option period.
3. Delivery
Any delivery periods stated will not be absolute deadlines, unless otherwise agreed in writing. If such a period is exceeded, the Other Party must give WAVERY a period, equal to the period initially agreed, within which it can perform after all. The mere exceeding of the deadline will in no event entitle the Other Party to claim dissolution or annulment of the agreement or any damages. Unless otherwise agreed, the Other Party will have the right to dissolve the agreement if WAVERY has still not performed at the end of the second period, extended by a 30-day waiting period.
4. Force majeure
4.1. The Other Party cannot demand performance by WAVERY of obligations of WAVERY under the agreement if WAVERY’s non-performance or late performance is directly or indirectly due to or the result of an event of force majeure. In that case WAVERY will not be to blame for any failure to perform.
4.2. Force majeure includes but is not limited to the following events and situations: decisions and measures of any public authority, the absence of permits required or other formalities of public authorities of any nature whatsoever, conflicts in the workplace, shortage of staff, shortage of raw materials or parts, lack of or delays in transport, theft, loss of possession, destruction of or damage to operating assets or data, and non-performance, late performance or inadequate performance by a supplier, Rightful Owner or other contracting party of WAVERY. Force majeure also includes circumstances that complicate the performance of contractual obligations by WAVERY; this also includes failure to comply with the quality requirements stipulated by WAVERY for products to be supplied by third parties.
4.3. All such events will discharge WAVERY from any and all liability and will give WAVERY the right to terminate or dissolve the agreement in full or in part, without being required to pay any damages whatsoever. The provisions of Article 3 regarding dissolution of the agreement by the Other Party will not apply, unless the event of force majeure lasts longer than four months. In that case the Other Party will be permitted to dissolve the agreement in accordance with Article 3, after sending WAVERY a letter by registered post. In that case WAVERY will not be required to pay any damages whatsoever.
4.4. Neither of the parties may invoke any limitation or exclusion of its liability insofar as that liability arises from intent or wilful recklessness on the part of that party itself or its management.
5. Warranties
5.1. All products supplied by WAVERY will be supplied – insofar as applicable – under the factory warranty and subject to the warranty conditions applied by the manufacturer. However, WAVERY does not independently assumed the warranty obligations in respect of products manufactured by third parties, but will merely be required to assist the Other Party in invoking the Other Party’s rights against the manufacturer.
5.2. WAVERY will furthermore use its best endeavours to perform its work to the best of its ability. Obvious, gross and clearly identifiable departure from that rule may be grounds for a complaint under Article 6.
5.3. WAVERY’s products and activities will be manufactured and performed, respectively, in accordance with customary standards regarding dimensions, quality, deviations, tolerances, thickness, etc. At the Other Party’s request they will be confirmed in writing before the performance of the order.
5.4. An order will be performed on the basis of the specifications stated by the Other Party, for which it is therefore responsible. The Other Party will be given the opportunity to accept the model or the proof produced, if any. WAVERY will comply to the extent possible with any subsequent departures from instructions previously given by the Other Party; any errors in the products that arise during, after or due to the compliance with such departures will be for the Other Party’s account and risk. Colourfastness, possible deviations in colour and non-compliance with specific requirements stipulated by the Other Party after it its acceptance (whether or not tacit) of the design, sample or proof are expressly not guaranteed.
6. Complaints
6.1. Within ten days after delivery by WAVERY, the Other Party must inform WAVERY accurately and in detail of any complaints that it may have in respect of the products delivered, on pain of forfeiture of the right to later claim that the performance was not in conformity with the agreement.
6.2. If WAVERY finds the Other Party’s objections to be valid, WAVERY will have the right – at its option – either to perform in accordance with the parties’ original intention after all, to make the necessary improvements, or to apply a reasonable price reduction. The Other Party will have the right to dissolve the agreement and/or to claim damages only insofar as justified in light of WAVERY's breach.
6.3. Goods sold may be returned to WAVERY, for any reason whatsoever, only with WAVERY’s prior written consent and in accordance with its shipping and other instructions. Transport and all the related costs will be payable by the Other Party. The products will at all times be for the Other Party’s account and risk.
6.4. Failure by the Other Party to comply with the instructions and directions for use in respect of WAVERY’s performance will release WAVERY from any and all liability. Any loss resulting from actions, omissions or other behaviour of the Other Party contrary to the instructions or directions given by WAVERY must be reimbursed to or via WAVERY in full.
7. Liability
7.1. WAVERY will be required to reimburse only direct loss caused by an act or omission on the part of WAVERY, its employees or other persons engaged by it in the performance of the agreement, which loss reasonably qualifies for compensation in the circumstances of the case, in any event including but not limited to the nature of the liability or the legal relationship that exists between the parties. WAVERY will not be required to reimburse loss in excess of the amount paid by the Other Party under the agreement in question. WAVERY will not be required to reimburse any indirect loss, such as loss of turnover, loss of profit, benefits not obtained, (other) consequential loss or any loss related to pre-contractual liability or the non-conclusion of an agreement.
7.2. The Other Party must indemnify WAVERY at its first requests against any third-party claims for reimbursement of loss resulting from or in connection with the agreement.
7.3. The provisions of Article 4.4 will apply accordingly.
8. Passing of risk in products
The products will be at the Other Party’s risk the moment they leave one of WAVERY’s warehouses or other places where they are stored awaiting shipment to the Other Party. The Other Party will then be liable for all direct and/or indirect damage to those products.
9. Payment
9.1. The place of payment is WAVERY’s office in Rijswijk, the Netherlands, or a bank or giro account to be designated by it. The Other Party will not have a right of setoff. Except insofar as otherwise expressly agreed in writing, all payments must at all times be made without any discount or settlement (free from cheque or other payment costs, of any nature whatsoever) within 15 days of the invoice date, or in any event within the term specified in the invoice. The Other Party will be in default upon the mere expiry of the payment term, also without any notice of default having been given.
9.2. Any complaints regarding invoices must be filed with WAVERY in writing within ten days of the invoice date, failing which the Other Party will be deemed to have accepted the invoice as correct.
9.3. All claims of WAVERY will fall due immediately and must be paid in advance if a petition in the Other Party’s bankruptcy is filed or if it applies for a suspension of payment, liquidates its business or dies, and furthermore in all circumstances in which the recovery of WAVERY’s claim might be jeopardised. In those cases WAVERY will furthermore have the right to suspend all activities, to order the Other Party no longer to exercise its rights under the agreement or to make that impossible for the Other Party, or to take back or remove products delivered or sold, until or unless security is provided in the manner set out in Article 11.
10. Late payment; measures
10.1. If the payment term referred to in Article 9 is exceeded, the Other Party will owe WAVERY interest at the rate of 1% per month on the outstanding amounts payable to WAVERY by the Other Party, or the statutory interest within the meaning of Article 6:119a of the Dutch Civil Code if the latter is higher than 1% per month.
10.2. The Other Party will furthermore be required to pay WAVERY any and all costs of collection out of court, including the fees charged by the solicitors and bailiffs engaged by WAVERY and all the other costs of collection in the broadest sense of the word. The aforesaid out-of-court costs of collection amount to at least 15% of the amount payable to WAVERY by the Other Party, subject to a minimum of € 75, excluding VAT.
10.3. The above furthermore applies to all costs of out-of-court measures and legal and/or expert assistance incurred by WAVERY in exercising its rights against the Other Party.
10.4. If WAVERY is exposed to any exchange-rate risk in connection with its transactions with or for the benefit of the Other Party, WAVERY will be entitled – in addition to other rights it may have – to full compensation of any exchange-rate loss that arises after the end of any payment period.
11. Security
11.1. Before performing the agreement, until payment has been made, WAVERY will have the right to demand of the Other Party that it provide security to WAVERY’s satisfaction for the fulfilment of its obligations. WAVERY may at any time have goods delivered COD (cash on delivery).
11.2. If the Other Party fails to comply with a request to provide security, WAVERY will have the right if it so wishes to dissolve or terminate the agreement in full or in part, whereby the Other Party will be required to reimburse all the loss consequently incurred by WAVERY, and the Other Party will furthermore forfeit to WAVERY a penalty, payable immediately, of 20% of the invoice amount related to the termination or dissolution. WAVERY will also have that right of dissolution or termination subject to damages as referred to here in all other cases of breach by the Other Party.
12. Retention of title; pledge
All products sold will remain WAVERY’s property until the Other Party has fulfilled all its obligations under the agreement in question and has paid WAVERY any related claims. In respect of all other obligations of the Other Party towards WAVERY to which the retention of title cannot apply, WAVERY may demand of the Other Party that it pledge goods to it, in which pledging the Other Party must fully cooperate.
13. Performance in excess of order
If WAVERY has performed in excess of an order initially given by the Other Party, WAVERY will be entitled to compensation pro rata to such performance in excess.
14. Industrial/intellectual property rights
14.1. If no arrangement has been made regarding the ownership of industrial and intellectual property rights in respect of the outcome of the performance of an order, WAVERY reserves the patent right and other industrial and intellectual property rights.
14.2. All drawings, calculations, drafts, technical data and other specific documents will remain WAVERY’s inalienable property.
14.3. The Other Party must return the documents referred to in Article 14.2 to WAVERY at its first request.
14.4. No part of anything that the Other Party has received from WAVERY or that has come to its attention on the basis of documents as referred to in Article 14.2 may be multiplied and/or made public by means of print, photocopy, microfilm or any other means without WAVERY’s prior written consent.
14.5. Upon violation of the provision of Article 14.4 the Other Party will forfeit to WAVERY a penalty payable immediately in the amount of € 5,000 per event or, at WAVERY’s option, of € 5,000 per week in which the violation continues, without prejudice to WAVERY’s right to claim full damages in addition to that penalty.
15. Representation
If the Other Party acts on behalf of a third party, it will be jointly and severally liable towards WAVERY, without prejudice to that third party’s liability, for the performance of all obligations by that third party.
16. Jurisdiction
Any and all disputes between WAVERY and the Other Party will be subject to the exclusive jurisdiction of the court in WAVERY’s place of business. WAVERY will furthermore have the right to submit disputes to the court of the Other Party’s place of business. The Other Party is expressly not entitled to submit disputes to the court of the Other Party’s place of business.
17. Conversion
Voidness or voidability of any provision of these Conditions or of agreements governed by these Conditions will not affect the validity of the other provisions. In that case the parties will furthermore consult in order to replace the void or voidable provision with a provision that does justice to the parties’ intentions to the extent possible but that is valid and enforceable.
18. Governing law
These Conditions and all agreements and other obligations between the parties are governed by Dutch law, to the exclusion, however, to the extent possible, of the Vienna Sales Convention.
19. Translation
An English translation has been made of these Dutch Conditions; in the event of conflict or differences in interpretation between the Dutch text and the translation, the Dutch Conditions will apply.
Filed with the Chamber of Commerce in The Hague, the Netherlands, under number 27097780.
WAVERY PRODUCTIONS B.V.
Polakweg 14C
2288 GG Rijswijk