General Conditions of Eldee Expo Experts B.V.
Statutory seat in Culemborg and registered office in Geldermalsen.
Article 1. Definitions
In these General Conditions we understand by:
Contract-Acceptor: Eldee Expo Experts I Client: other party of Contract-Acceptor.
The work programme: design and build (having built), construct and remove (a) stand(s), meant as a temporary structure for the purpose of exhibitions, expositions and events (hereinafter collectively referred to as exhibitions) as well as office decorations, shop decorations, showcases, desks, shop in shop sales outlets and suchlike, hereinafter referred to as interior design.
Article 2. Applicability of these General Conditions
1. These terms and conditions apply to all offers/quotes and every agreement between the client and contractor in as far as these terms and conditions have not been expressly deviated from in writing by the parties
2. Client may not disregard the applicability of the terms and conditions. Also when Client declares her General Conditions applicable in the case of accepting the order, or disregards stipulations in Contact-Acceptor’s General Conditions, it is nonetheless so that Contract-Acceptor’s General Conditions are fully applicable.
3. When no order is granted, based on the design, maquettes, models, drawings and suchlike, Client is not entitled to use the design and suchlike in any way nor have third parties use it.
Article 3. Tender and agreement
1. All our tenders are non-binding, and will remain valid until one (1) month after date unless another term of acceptance is cited in the tender. The tender also comprises the description of how Contract-Acceptor is to execute her work programme.
2. The presentation study is meant to show a concept of the stand to be realized and is by no means a plan indicating an exact reproduction of the actual realization. The presentation study may thus deviate from the tender’s content.
3. Contract-Acceptor is only bound to the tenders and the agreement between parties can only be effected when the acceptance of the tender is confirmed in writing by the other party.
4. Contract-Acceptor confirms acceptance in writing stating the final price.
5. Transport costs and construction costs are included in the tender.
6. Prices in the tenders are excluding VAT, unless specified otherwise.
7. The agreement is legally dissolved the moment Client is declared in a state of bankruptcy, applies for a moratorium or loses power of control of her assets.
8. Contract-Acceptor’s claims on Client are due on demand in the following situations:
– When after entering into the agreement Contract-Acceptor learns of circumstances on the basis of which Contract-Acceptor fears that Client is unable to discharge her obligations.
– When, upon entering into the agreement, Contract-Acceptor has required security regarding the compliance and this security remains forthcoming or is insufficient.
In these cases Contract-Acceptor is authorised to suspend further execution of the agreement, or to annul the agreement, the right to claim damages remains in full force.
Article 4. Execution of the agreement
1. Contract-Acceptor will execute the agreement according to her mind and to the best of her abilities, and commensurate with the requirements of skilled craftsmanship.
2. Only if and to the extent that the execution of the agreement requires this, Contract-Acceptor has the right to have the work programme carried out by third parties.
3. Client sees to it that all necessary drawings, plans and other data and materials, which Contract-Acceptor deems necessary or which Client could reasonably expect to be vital in the execution of the agreement, are timely provided to Contract-Acceptor. If the required information necessary for the execution of the agreement is not timely provided to Contract-Acceptor, Contract-Acceptor retains the right to suspend the agreement and/or charge Client the additional costs the delay causes according to the standard rate.
4. Contract-Acceptor is not liable for damages, whatever their nature, because Contract-Acceptor has assumed incorrect and/or incomplete information on the part of Client, unless it is patently obvious that Client has made an unequivocal error in supplying the information.
5. Any products Contract-Acceptor uses or applies at the request of Client are subject to Limited Warranty and Contract-Acceptor is not liable for any damages or deficiencies.
6. Contract-Acceptor will, as extra service, provide the connection of the stand to electricity, water and telephone network, but is not liable for deficiencies or malfunctions of these connections.
7. If Client does not implement her obligations Contract-Acceptor retains the right to dissolve the agreement at once. In that case Client is compelled to reimburse all costs made by Contract-Acceptor concerning the agreement as well as any additional costs that dissolving the agreement will entail.
Article 5. Alteration of the agreement, supplemental work
1. If, during the execution of the agreement, it becomes evident that for a proper execution it is necessary to alter the work programme or make additions, parties will timely and by mutual agreement adjust the agreement accordingly.
2. If parties agree that the agreement will be altered or completed, the timing of completion of the work programme may be influenced. Contract-Acceptor will inform Client as soon as possible if that is the case.
3. If the alteration or completion of the agreement has any financial and/or qualitative consequences, Contract-Acceptor will inform Client beforehand.
4. If a fixed contract price has been agreed upon Contract-Acceptor will indicate to what extent the alteration or completion of the agreement will result in exceeding this contract price.
5. By way of derogation of article 3 Contract-Acceptor will not be able to charge additional costs if the alteration or completion is the result of circumstances that can be attributed to her.
6. All activities not included in the tender ensuing from the agreement and which are necessary for a correct execution of the work programme are considered supplemental work and can be charged as such.
Article 6. Delivery
1. Contract-Acceptor immediately informs Client that the work programme has been completed upon readiness.
2. Client should at once inspect the work programme for deficiencies.
3. The inspection of the delivery will be documented on the delivery form and confirmed by signing of both parties.
4. If Client neglects to carry out the delivery inspection at once her right to submit claims has lapsed.
5. Claims must be reported in writing and by recorded delivery to Contract-Acceptor forthwith and at the latest twenty-four (24) hours after delivery. Deficiencies that have rightfully been claimed will be repaired by Contract-Acceptor within twenty-four (24) hours after receipt of the notification, if the exhibit’s organization explicitly grants permission for that. In that case Contract-Acceptor is not liable for damages.
6. Contract-Acceptor is never obliged to paying any compensation for damages in relation to any deficiencies observed during delivery.
Article 7. Confidentiality
Both parties are sworn to secrecy of all confidential information obtained from one another in relation to the agreement or from other sources. Information is confidential when this has been indicated by the other party or when this results from the nature of the information.
Article 8. Ownership and intellectual rights
1. Without prejudice to the provisions specified in Article 7 of these terms and conditions, the contractor reserves the rights and powers vested in it under the Copyright Act and its other rights and powers related to the intellectual property rights of the contractor.
2. All intellectual property provided by Contract-Acceptor, such as reports, recommendations, designs, sketches, drawings, software etc. shall be retained by Contract-Acceptor and may not be multiplied, disclosed or conveyed to third parties without prior consent of Contract-Acceptor.
3. Contract-Acceptor retains the right to use the knowledge acquired during the execution of the work programme for other purposes, provided no confidential information is conveyed to third parties.
4. All used materials in relation to the work programme and other matters will not transfer in property from Contract-Acceptor to Client unless other arrangements have been made in the agreement.
5. Client is entitled to use the stand for the duration of the exhibition for which she states to administer it with the care of a prudent man with due diligence.
6. Client is obligated to hand over the stand to Contract-Acceptor at the latest twelve (12) hours after the exhibition’s end.
7. Of article 8.6. will be excluded those parts of the stand that have been especially designed for Client based on the agreement. These parts will not be removed and remain under responsibility and for the risk of Client, unless agreed otherwise.
Article 9. Retention of risk and title
1. Contract-Acceptor reserves the right of ownership regarding all supplied materials, parts thereof and tools, provided that the supplied materials have not yet been processed.
2. As soon as delivery of the work programme ex article 6. has taken place Client covers the risk of damages, regardless their nature. However, an exception will be made if and whenever Client can demonstrate that damages, regardless their nature, are due to culpable negligence on the part of Contract-Acceptor.
3. For the duration of the exhibition the costs and risks of the stand are to be born by Client.
4. Especially designed or purchased objects for the benefit of Client will not transfer in ownership until after Client has fulfilled all her obligations toward Contract-Acceptor.
5. Any audio-visual equipment set up in the stand is rented in the name of Client. In the case of loss and/or damage of such equipment Client is liable.
Article 10. Transport
1. Transport costs shall fall to Client.
2. If objects of Client must be transported to the stand to be used in the exhibit Client is to initiate transport.
2. If, by way of derogation of article 10.2., it has been agreed that Contract-Acceptor takes care of the transport, then Client bears the risk of damage and loss during transport. Client is also responsible for all damages that occur on the side of Contract-Acceptor as a consequence of (additional) transport of objects belonging to Client.
Article 11. Deficiencies; complaint deadlines
1. Complaints that arise during the exhibition must immediately be reported by telephone and fax by Client.
2. If the complaint is valid Contract-Acceptor will see to repairing the damage within twenty-four (24) hours after receipt of the complaint, unless Client renders it demonstrably useless, and subject to the explicit consent of the organizer of the exhibition is able to carry out repairs.
3. If a complaint was caused by inadvertent use of the delivered work programme or due to the fault of third parties, Contract-Acceptor will charge the costs of repair to Client.
Article 12. Price
1. The prices quoted by Contract-Acceptor are excluding VAT and based on the, at the time of the offer, valid price-fixing factors including the average earnings, calculated according to the, at Contract-Acceptor’s company, applicable working conditions and working hours.
2. For tenders and agreements in which a fixed price is offered or has been agreed upon paragraphs 3., 6. and 7. of this article are valid. If no fixed price has been agreed upon, paragraphs 4. until and including 7. of this article are valid.
3. Parties can agree upon a fixed price while the agreement is effected.
4. If no fixed price is agreed upon, the price will be determined on a time and materials basis. The price will be calculated according to the standard rates of Contract-Acceptor, valid for the period during which the work programme is executed, unless a different rate has been agreed upon.
5. Any cost estimates are excluding VAT.
6. Unless agreed otherwise the terms of payment in the tender are valid.
7. If Contract-Acceptor agrees upon a fixed price or rate with Client, and after the date of the tender one of more price determining factors change, even if this happens due to unforeseen circumstances, Contract-Acceptor retains the right to change the agreed upon price at the time of accepting the work programme accordingly. The price determining factors always include the by the government imposed levies, labour costs conform the applicable CAO (Collective Labour Agreement), taxes, social charges, levies, currency fluctuations and material costs.
Article 13. Payment
1. The agreed upon down payment, as well as the payment of the remaining terms, must be satisfied by Client conform the in the tender agreed upon date.
2. If Client is in default regarding payment of an invoice, Contract-Acceptor is entitled to suspend the work programme until the moment the payable sum has been satisfied. Without prejudice to the previous sentence the right of Contract-Acceptor to indemnity of costs, damages and interests remain intact.
3. After fourteen (14) days of invoice date Client is in default; Client owes interest on the claimable amount of 2% per month starting the moment she is in default, unless the statutory rate is higher in which case the statutory rate takes precedence.
4. In case of liquidation, bankruptcy or moratorium of Client the claims of Contract-Acceptor and the obligations of Client toward Contract-Acceptor will be repayable on demand.
5. The payments issued by Client firstly are in settlement of the payable interest and costs; secondly of the demandable invoices that have been unsettled for the longest period, even if Client claims that the sum is related to a later invoice.
6. Client is not permitted to compensate the payable sums to Contract-Acceptor with any sums he believes are arising out of Contract-Acceptor.
Article 14. Collection costs
1. If Client breaches or is default on performing one or more of her obligations, then all costs and interests, within the law and extrajudicial, for obtaining payment are payable by Client, with a minimum of 15% of the overall agreed upon price including VAT.
Article 15. Liability
If Contract-Acceptor is liable, then the following restrictions are valid:
1. Contract-Acceptor is committed to, at all times, insure liability so that the insured interest is in relation to the magnitude of the accepted work programme.
2. The liability of Contract-Acceptor, in so far as this is covered by her liability insurance, is limited to the sum of the payment of the insurer.
3. If the insurer does not proceed to payment or when damages are not covered by the insurer, the liability of Contract-Acceptor is limited to twice the invoice sum of the work programme, at least for the part of the work programme to which the liability refers.
4. Splits between the separate wall panels of a stand can occur between the time of setting up the stand and the duration of the exhibit due to temperature range. These splits are not part of constructive deficiencies and fall outside the liability of Contract-Acceptor.
5. Contract-Acceptor is not liable for damages if Client has provided insufficient or incomplete information on the basis of which Contract-Acceptor has determined and executed her work programme.
6. Contract-Acceptor is not liable for damages that arise from deliberate behaviour from employees of Client as well as from third parties Client has hired, which can be recognised as unlawful and which cannot be directly linked to the work allocated by Client and the occurrence of the damage. In the event of unlawful use of objects or property of Client such a direct link must be missing. Client indemnifies Contract-Acceptor for third party claims of damages on account of, during or as a consequence of the execution of this agreement, which are not the result of apparent carelessness on the part of Contract-Acceptor.
7. Contract-Acceptor is not liable for damages when Client has not held Contract-Acceptor liable by recorded delivery within one week of the damage incident, and Contract-Acceptor has restricted options to investigate the damages and its causes because Client has not reported within the set time.
8. Contract-Acceptor is not liable for consequential loss or indirect loss among which are included profit foregone, lost savings, financial compensation and damages due to corporate stagnation, suffered by Client as a consequence of the execution of the work programme or other performances.
9. The limitations of liability included in these General Conditions are not valid when damages can be attributed to malice aforethought or grave culpability on the part of Contract-Acceptor or her subordinates.
Article 16. Force Majeure
1. If the execution of the work programme is rendered impossible by a cause which cannot be attributed to Contract-Acceptor (Force Majeure), nor is within her risk environment, then she is entitled to end the work programme against reimbursement of the already incurred costs.
2. In these General Conditions Force Majeure means ‘ besides what is already included in the law and jurisprudence ‘ all external causes, foreseen or unforeseen, which Contract-Acceptor cannot influence, and yet render Contract-Acceptor incapable of fulfilling her obligations. Weather conditions and strikes in Contract-Acceptor’s company are included.
3. Also included in Force Majeure are all independent circumstances beyond the control of all parties which, in fairness, render fulfilling the obligations under the contract very difficult if not impossible. This includes among other things: delayed delivery of timely ordered materials; transport difficulties including traffic jams; shortcomings in fulfilling obligations by the organizer and/or proprietor of the exhibit; energy disruptions; governmental measures; mechanical and other disturbances that affect Contract-Acceptor in her company; weather conditions; molest; fire; exclusion; vandalism; revolt; occupation (also by squatters); (atomic) nucleus reactions; war; terrorism.
4. The party claiming breach of the agreement by the other party is obligated to take all necessary measures in order to limit the damage. When these measures entail costs, these costs will be reimbursed by the other party.
5. During Force Majeure the obligations of Contract-Acceptor are suspended. If, due to Force Majeure, fulfilling the obligations under the contract by Contract-Acceptor is not possible before or at the start of the exhibition, both parties are authorised to dissolve the contract by a written, recorded delivery. In such a case Contract-Acceptor is entitled to reimbursement of the already incurred costs.
Article 17. Settlement of disputes
The competent judge in the district where the head office of Contract-Acceptor is situated has exclusive jurisdiction in disputes relating to compensation, unless the cantonal judge is competent. Nonetheless Contract-Acceptor has the right to take out a summon against the other party before the, according to the law, competent judge.
Article 18. Applicable law
For any agreement between Contract-Acceptor and Client the Dutch law is applicable.
Article 19.Amendment of the Conditions and reference
These General Conditions have been deposited at the Rechtbank of Arnhem (Court of Arnhem) on 9th January 2006, act registration number: 2006/3. Applicable is the most recently deposited version c.q. the version as was applicable at the time of the realization of the agreement at issue.
In case of legal matters the Dutch General Conditions take precedence over the translated English General Conditions.