GENERAL TERMS AND CONDITIONS OF USE BUSINESS PORTAL & SALE AND DELIVERY CLIPPER
Clipper is a trade name of Plato Group B.V., located in Helmond, a company registered in the Netherlands with registration number 17066765.
Article 1 Definitions
Clipper's set of General Terms and Conditions consists of the General Terms and Conditions of Sale and Delivery and these Terms and Conditions of Use. In addition to the list of terms in the General Terms and Conditions of Sale and Delivery, the following terms are understood to mean the following if used with an initial capital letter: (where singular is used, the plural is also meant and vice versa):
1.1 "Account": the user name and password that give the User access to the Client Portal.
1.2 "Offer": the Products offered by Clipper, which can be qualified as the unilateral legal act of offering within the meaning of Section 6:217 of the Dutch Civil Code.
1.3 "Acceptance": the acceptance by the Client of the Offer of Clipper, which can be qualified as the unilateral legal act of accepting within the meaning of Section 6:217 of the Dutch Civil Code, as a result of which a Contract is concluded within the meaning of Section 6:217 of the Dutch Civil Code. This acceptance does not have to be in Writing.
1.5 "Day": calendar day.
1.6 "Clipper": Clipper is a trade name of Plato Group B.V., supplier of business gifts and promotional articles, registered in the Trade Register of the Chamber of Commerce under number 17066765, or any company affiliated with it.
1.7 "Order": an Order issued by the User to Clipper regarding the delivery of Products offered by Clipper. Hereinafter also referred to as "Order".
1.8 "User": any natural person or legal entity, registered with the trade register of the Chamber of Commerce in the Netherlands and the rest of Europe, who has an Account and with whom Clipper enters into the User Agreement or by whom Clipper has been given an Order. Hereafter also referred to as "User".
1.9 "User Agreement": Agreement relating to the use of the Portal concluded at a distance between the Parties.
1.10 "Parties": Clipper and the User.
1.11 "Portal": the business portal on Clipper's website. The Portal allows the User to place orders, request samples and request quotations via the web shop.
1.12 “Product”: business gifts and other promotional products offered by Clipper via the Portal on the website, including creative expressions on Clipper’s website.
1.13 “In Writing”: by post or e-mail.
Article 2 Applicability
2.2 The User's General Terms and Conditions are hereby expressly rejected.
Article 3 User Agreement
Article 4 Usage
4.2 The User is responsible for the activities on the Portal, or at least the activities that are performed via the User's Account, including providing personal and/or company details and placing orders. Any use of the Portal is at the risk, expense and responsibility of the User.
4.4 Clipper shall make every effort to make the Portal available, but does not guarantee uninterrupted availability. Clipper will make reasonable efforts to provide access to the Portal. However, Clipper does not guarantee that the Portal and the Account will be accessible at all times and without interruptions or malfunctions. Nor does Clipper guarantee that Information on the Portal is complete, correct and/or accurate. Malfunctions in the Portal may occur partly, but not exclusively, as a result of faults in the Internet or telephone connection or as a result of viruses or errors/breaks. Clipper accepts no liability whatsoever in this respect.
4.5 Clipper shall actively maintain the Portal in order to provide the best possible service. If maintenance is expected to result in any limitation of availability, where possible, Clipper will carry out such maintenance at the time when use of the Portal is relatively low. Where possible, maintenance will be announced in advance. Maintenance in connection with calamities may take place at any time and will not be announced in advance.
4.6 The User may, at the discretion of Clipper, its Account and/or the Portal:
4.7 The technical requirements and facilities necessary to make use of the Portal, including but not limited to hardware, Internet connection and the costs of using it, are for the User's own account.
4.8 Clipper may, but is not obliged to, retain and store data or content of the User's Account.
4.9 When using the Portal, personal data relating to the User will be processed. Consult Clipper’s privacy statement for more information.
4.10 The User shall indemnify Clipper against all damage or loss arising from claims against Clipper as a result of failure to comply with the conditions of this Article.
4.11 It is not permitted to use the Portal in a manner that contravenes any legislation or regulations whatsoever.
Article 5 Intellectual property rights
5.1 All intellectual property rights relating to documents supplied by Clipper, such as but not limited to trademarks, models, photos/images on the websites and/or the Portal, which are used by Clipper remain the intellectual property of Clipper, even if the User has written permission to use these documents, mentally and physically, and may therefore not be used or supplied to third parties without the prior written permission of Clipper.
5.2 The User acknowledges that all intellectual property and other rights relating to the Portal and all brands and logos are and remain the property of Clipper and may not be used in any way by the User without the prior written permission of the latter. User will always fully respect the intellectual property rights of Clipper and third parties.
5.4 The exercise of the aforementioned intellectual property rights - including publication, transfer, reproduction, distribution of data, all in the broadest sense of the word - is explicitly and exclusively reserved to Clipper both during and after execution of the Agreement.
5.5 Information which the User publishes or stores via the Portal is and will remain the property of the User. Clipper is entitled to use this information for the Portal and everything associated with it, including (external) advertising. This right of use applies for an indefinite period of time and therefore also after termination of the User Agreement.
Article 6 Liability and indemnity
6.1 User is fully responsible and liable for the use of the Account.
6.4 Unless there is intent and/or gross negligence on the part of Clipper, the latter is in no way liable for damage and/or costs of whatever nature incurred by the User in connection with the use of the Portal and the Account, such as - but not limited to - damage and costs resulting from the improper functioning of the Portal and technical faults, etc.
6.5 In the event that the exclusion of liability as referred to in the previous paragraph of this Article is declared null and void in whole or in part by a competent court or is annulled, the Parties agree that the total liability Clipper shall never exceed € 500.
6.6 The User indemnifies and holds Clipper harmless against any claims from third parties, who suffer damage in connection with the execution of the Agreement and whose cause cannot be attributed to Clipper.
6.7 A condition for the existence of any right to compensation is that the User reports the damage in writing to Clipper no later than two months after the discovery of the damaging event.
6.8 In the event of force majeure, Clipper will never be obliged to compensate the User for any damage caused by this. Force majeure includes disruptions or failures of the internet, the telecommunication infrastructure, power failures, domestic disturbances, mobilization, war, transport disruptions, strikes, lockouts, business interruptions, supply stagnation, fire and flooding.
Article 7 Duration and termination of the Agreement
7.1 By registering on the Portal/creating an Account, the User enters into a User Agreement with Clipper. This User Agreement commences as soon as the User uses the Portal for the first time and then runs for an indefinite period of time and therefore remains in force until terminated by either Party. Parties may stop using the Portal at any time and terminate the Account.
7.2 In addition to the other (legal) remedies which Clipper may avail itself of, Clipper is entitled at all times - without giving reasons and without prior explanation and without the User being able to derive any rights from this:
7.3 If use of the Account is terminated and/or if the User has terminated its Account, the Agreements which the User has concluded with Clipper via the Portal will remain in full force.
Article 8 Force majeure
8.1 Parties shall not be liable for any shortcoming, delay or non-performance that is the direct or indirect result of circumstances or causes beyond its control. The parties will inform each other of such a situation as soon as possible.
Article 9 Third party and transfer
9.1 User is not entitled to transfer the User Agreement or one or more of its rights and obligations under the User Agreement without Clipper's prior Written consent. A restriction on the transferability of rights of action as referred to in this article will have effect not only under the law of obligations but also under the law of property as referred to in Section 3:83 of the Dutch Civil Code.
9.2 Clipper is permitted to transfer (in whole or in part) its rights and obligations under the Usage Agreement to a third party. By entering into the Agreement for Use, the User has agreed in advance to such a transfer and the User will cooperate fully (pursuant to Section 6:159 of the Dutch Civil Code).
Article 10 Applicable law and competent court
10.1 Any negotiations and Contracts with Clipper are governed exclusively by Dutch law.
10.2 All disputes between User and Clipper shall be exclusively resolved by the competent court of East Brabant, location 's-Hertogenbosch, unless another Dutch court is competent by virtue of mandatory law.
10.3 The Vienna Sales Convention (CISG) concluded in Vienna on 11 April 1980 is not applicable.
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY CLIPPER - version 20200701
Clipper is a trade name of Plato Group B.V., located in Helmond, a company registered in the Netherlands with registration number 17066765.
Article 1 Definitions
The following definitions (where the singular shall also mean the plural) are used in these General Terms and Conditions:
1.1 "Offer": Services and/or Products offered by Clipper, which can be qualified as the unilateral legal act of offering within the meaning of Section 6:217 of the Dutch Civil Code.
1.2 "Acceptance": the acceptance by the Client of the Offer of Clipper, which can be qualified as the unilateral legal act of accepting within the meaning of Section 6:217 of the Dutch Civil Code, as a result of which a Contract is concluded within the meaning of Section 6:217 of the Dutch Civil Code. This acceptance does not have to be in Writing.
1.3 "General Terms and Conditions": the most recent version of the present General Terms and Conditions of Sale and Delivery of Clipper.
1.4 "Day": calendar day.
1.5 "Service": the Services offered, or delivered, by Clipper, including advice and services for (consumer) web shops.
1.6 "DDP": Clipper delivers Delivery Duty Paid (DDP) (in accordance with Incoterms 2020). At the moment of delivery to Client, the risk in respect of the Products is transferred.
1.7 “Clipper”: Clipper is a trade name of Clipper B.V., supplier of business gifts and promotional articles, listed with the Trade Register of the Netherlands Chamber of Commerce under number 17066765, or any company affiliated with it. The user of these General Terms and Conditions.
1.8 "Incoterms": international terms of delivery (International Commercial Terms) designed and published by the International Chamber of Commerce (ICC) the world business organisation. Available on: www.iccwbo.org. The most recent edition of the Incoterms, as published by the ICC, is decisive for the explanation of the business terms in these General Terms and Conditions and the Contract.
1.9 "Instruction": an Instruction or order given by the Client to Clipper regarding the delivery of Products and/or Services that are offered by Clipper.
1.10 "Client": the legal or natural person who gives an Instruction or order to Clipper, or accepts its Offer regarding the delivery of Products and/or Services offered by Clipper.
1.11 "Client being Consumer": the natural person who is not acting in the exercise of his profession or business and enters into a (distance) Contract with Clipper, or intends to do so (hereinafter also to be referred to as: "Client/Consumer").
1.12 "Contract": purchase contract and/or contract for services and/or contractor agreement and/or Distance Contract concluded between the Parties.
1.13 "Distance Contract": a contract whereby sole use is made of one or more remote communication technologies within the framework of a system organised by Clipper for the distance sale of Products and/or Services, without the physical presence of the Parties, up to and including the moment that the Contract is concluded.
1.14 "Parties": Clipper and the Client.
1.15 "Product": business gifts offered or delivered by Clipper and other goods and items offered by Clipper, including creative expressions.
1.16 “Print”: Decoration of Product by order of Client.
1.17 "In Writing": by post or email.
Article 2 Applicability
2.1 These General Terms and Conditions apply to all Orders made by Client, Clipper’s quotes, order confirmations, applications, all negotiations between Clipper and the Client, and to all Contracts concluded or to be concluded with the Client, as well as to the performance thereof. These General Terms and Conditions also apply to any third parties engaged by Clipper.
2.2 The Client declares to have received a copy of these General Terms and Conditions - in hard copy or digitally - from Clipper no later than the time that the Contract was concluded.
2.3 If the Distance Contract is concluded electronically, the text of the General Terms and Conditions shall be made available to the Client electronically, before the Distance Contract is concluded, in such a way that the Client can easily store it on a durable data carrier.
2.4 Any provisions deviating from these General Terms and Conditions shall only be binding on Clipper following Written approval from Clipper and solely for the Contract to which the said approval is applicable. The other provisions of these General Terms and Conditions shall remain in full force and effect.
2.5 Reference of the Client to the applicability of its own General Terms and Conditions is hereby explicitly rejected by Clipper, unless such - on a case by case basis - has been expressly agreed in Writing.
2.6 Clipper reserves the right to review the text of these General Terms and Conditions at any time and shall notify the Client of any amendments.
2.7 In the event of a conflict between the text of the General Terms and Conditions and the Contract, the provisions of the Contract shall prevail.
2.8 If, at any time, Clipper does not (immediately) exercise its rights under the Contract and/or the General Terms and Conditions, it shall not affect its right and possibility to do so in the future for reasons of its own.
2.9 If any of the provisions in the Contract or in these General Terms and Conditions is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by any applicable law, that provision shall to the extent of such invalidity or unenforceability be deemed severable and the other provisions of the Contract and the General Terms and Conditions shall continue to apply in full. The Parties shall then attempt to agree a new valid and enforceable provision as replacement which achieves to the greatest extent possible the same commercial effect as would have been achieved by the invalid or unenforceable provision.
2.10 If Clipper concludes Contracts with the Client more than once, the present General Terms and Conditions shall apply to all subsequent Contracts, irrespective of whether they have (again) been explicitly declared applicable and/or Clipper has (again) complied with its duty of disclosure.
Article 3 Offers and Contracts
3.1 All Offers of Clipper, including the price lists, brochures and other information supplied with them by Clipper, in any form, are subject to confirmation by Clipper.
3.2 If an Offer subject to confirmation is accepted by the Client, Clipper shall have the right to revoke the Offer within 2 Days of receipt of the Acceptance.
3.3 Images, catalogues, drawings, price lists, brochures and further information provided to or by Clipper are subject to changes without prior notice being required and do not bind Clipper.
3.4 Clipper reserves the right to make changes in the products that are displayed in the catalogue, brochures, on the website, etc..
3.5 A Contract between Clipper and the Client shall be concluded after the Offer of Clipper and the Acceptance of that Offer by the Client.
3.6 Any agreements, oral or otherwise, made between the Parties after the Contract has been concluded shall only become effective after they have been confirmed in Writing by both Parties.
3.7 In the context of the performance of the Contract, Clipper is entitled to engage intermediaries or third parties.
3.8 Agreements made with or undertakings made by subordinates of Clipper, or intermediaries/or third parties engaged by Clipper, shall only bind Clipper if it has confirmed these agreements or undertakings in Writing to the Client.
Article 4 Prices
4.1 The prices stated in the Offer or the prices agreed with Clipper apply exclusive of VAT, DDP (unless otherwise agreed), in the currency stated in the offer, and are based on the cost-determining factors applicable at the time of the offer.
4.2 The prices on the website of Clipper are guiding and subject to change.
4.3 Clipper is entitled to adjust the prices of the Products at any time.
4.4 Clipper is entitled at any time to determine that certain goods shall only be delivered on the basis of a stipulated minimum quantity.
Article 5 Cancellations
5.1 An Order given may only be cancelled by the Client with the written consent of Clipper. Clipper may, by way of exception, accept a cancellation of the Order. If the Client nevertheless cancels an Order in whole or in part, it is obliged to reimburse Clipper for all costs reasonably already incurred for the execution of this Order (preparation costs, orders from third parties, storage, commissions, etc.), Clipper’s activities and loss of profit by Clipper, plus VAT, all without prejudice to Clipper's right to full compensation due to loss of profit, as well as any other damage or loss arising from cancellation.
5.2 Cancellation by the Client must be made in Writing to the address of Clipper.
5.3 Clipper may cancel an (already confirmed) Order for reasons of its own. Clipper may in any event cancel an Order if (non-exhaustive): (i) there is an erroneous price (manifest error), (ii) Clipper is convinced that it cannot guarantee the quality of the Order to be executed, (iii) Clipper is convinced that the Order will not meet the Client's expectations and (iv) if Clipper is convinced that the Order is discriminatory in nature and/or does not comply with Copyright and/or social standards and values. Clipper shall notify the Client in Writing if it wishes to cancel the Order. If, in the situations referred to under (ii) and (iii), the Client nevertheless wishes the Order to be carried out, the Client's right of complaint, return and restitution will lapse.
Article 6 Advisory services and product development
6.1 Clipper shall endeavour to represent the Client's interests to its best knowledge and ability and to act in an advisory role, if required.
6.2 Clipper shall endeavour to treat any information made available by the Client as strictly confidential. The Client will maintain confidentiality with regard to all information that he becomes aware of regarding the business of Clipper, its Products and/or Services. The confidentiality obligations of both Parties shall survive expiry and termination of the Contract.
6.3 In the event of a Contract for product development, advice regarding promotional Products to be used, advice regarding creative concepts, quotations for extensive projects with printed or non-printed Products, national or international market research on specific Products or Product Requests for Products not specified by Clipper, the Client shall be obliged - in all cases that do not result in the actual delivery of Products by Clipper - to pay for the work carried out by Clipper in accordance with the hourly rate agreed between the Parties or, in the absence thereof, the usual rate maintained by Clipper.
Article 7 Inspection of Products
7.1 If inspections have been agreed with the Client, these inspections shall take place in accordance with the agreed inspection methods, inspection procedures and inspection periods, or those to be agreed in time, or in the absence thereof, in accordance with Clipper's general inspection method, procedures and periods. If any delay occurs due to the Client's actions, the delivery period may be adjusted by Clipper.
7.2 If Clipper has notified the Client within the agreed period, or at least in time, of the date of inspection, and the Client fails to comply with this invitation within 14 Days of the date of this invitation, the Products (/Services) are considered to have been approved.
7.3 Clipper shall be given the opportunity to deal with the comments and objections of the Client regarding the inspection or test, before the Products (/Services) can be rejected or refused by the Client. Clipper must be notified in writing by the Client regarding comments and objections of the Client, if any, in respect of the Products (/Services) delivered after the inspection has taken place. If any comments and objections have not been reported in Writing to Clipper within 14 Days of the date of the inspection, the Products (/Services) delivered are considered to have been approved by the Client.
Article 8 Deliveries and delivery time
8.1 The specified delivery times shall never be regarded as deadlines, unless explicitly agreed otherwise in writing. In the event of non-timely delivery, the Client must give Clipper notice of the default in Writing, and Clipper must be given an additional reasonable term to proceed to delivery at a later date without being in default.
8.2 The delivery time begins at the last of the following times:
8.3 Clipper reserves the right, if Products are especially manufactured or assembled for the benefit of the Client, to deliver and invoice a maximum of 5% more or less than the quantity agreed upon.
8.4 Clipper is permitted to send Products in several consignments, and each consignment is considered to be a separate consignments and is payable separately.
8.5 Unless otherwise agreed in Writing, notwithstanding the previous provisions on prices, the prices quoted by Clipper are based on delivery duty paid (DDP) exclusive of VAT and insurance.
8.6 Unless otherwise agreed in Writing, delivery of the Products shall take place DDP of Clipper. The Products will be deemed to have been delivered by Clipper and to have been accepted by the Client as soon as the Products are offered to the Client.
8.7 The time at which the items are made available to the Client DDP (unless otherwise agreed) is considered the time of delivery and the time when the risk with respect to the Products passes from Clipper to the Client.
8.8 If the Client refuses to take delivery of the Products, the risk of the Products shall immediately pass to the Client and Clipper can claim payment immediately. Clipper shall store the Products at the expense and risk of the Client until further notice.
8.9 Unless otherwise agreed in Writing, transport shall take place at the risk and expense of the Client, even if the carrier has explicitly provided that all shipping documents must state that any and all damage or loss resulting from the transport shall be at the expense and risk of Clipper.
8.10 Unless otherwise agreed in Writing, Clipper shall choose the manner of transport and the means of transport to the best of its knowledge, yet without being liable for that choice. The transport costs are payable by the Client.
8.11 Delivery to an address indicated by the Client shall only take place if the Parties have reached Written agreement in advance on the additional costs and the terms and conditions involved.
8.12 The manner of packing, transport, shipment, etc. shall be determined by Clipper, unless the Parties have agreed otherwise in Writing, nonetheless without Clipper accepting any liability in this respect - notwithstanding a mandatory obligation to pay damages.
8.13 If Clipper displays or provides a model, sample or example, this shall be for indication purposes only: the characteristics of the Products to be delivered may differ from the sample, model or example. The provisions in Article 7 shall apply mutatis mutandis.
8.14 If the Products are not collected by the Client after the delivery time has expired, Clipper will store the Products at the Client's expense and risk. Clipper shall not make the Products available to the Client until the additional costs of transport and storage have been paid by the Client. If the Products are not collected by the Client within 30 Days of the original delivery time, Clipper shall have the right, after sending a demand, to dispose of the Products or to find another destination for them. The Client shall not have the option of bringing an action against Clipper in that respect. Any proceeds thereof shall be credited to the Client after deduction of related costs, without prejudice to Clipper’s right to claim full payment of the agreed price.
Article 9 Supply of printed Products
9.1 If the Contract relates to the sale and delivery of Products especially manufactured or assembled for the benefit of the Client, the Client shall be obliged to and responsible for the supply of directly reproducible materials, including logos, of good quality.
9.2 Clipper is entitled to process, store and use the logos, brands and other visual material supplied by Client.
9.3 Clipper is only obliged to send a printing proof for approval to the Client in advance, if such has been stipulated in Writing by the Client on the conclusion of the Contract. In that context, Clipper shall be obliged to submit a printing proof to the Client no later than five weeks after the Contract has been concluded and after receipt of the materials to be reproduced.
9.4 Client's approval of the supplied printproof implies that Client has checked it. Clipper is not liable for errors or defects of Print unnoticed by Client if an approved printproof does not correspond with Client's wishes. It is not possible to change an approved printproof, unless an exception is made in writing. (extra) Costs involved in any change are at the risk and expense of the Client.
9.5 All costs relating to printing shall be charged separately in accordance with the price to be specified in the Contract, unless explicitly agreed otherwise in Writing. These costs shall be stated in the invoice issued to the Client.
Article 10 Returns and Warranty
10.1 The Client is obliged to inspect the conformity of the Products delivered at the time of delivery. The Client should inspect whether, among other things, the quality and quantity of the Products delivered correspond to what has been agreed.
10.2 Complaints from Client regarding non-compliance with the Order of the Products and/or Services delivered by Client will only be taken into consideration by Clipper if and insofar as these complaints have been submitted to Clipper in writing within a reasonable time, stating a description of the nature of the defect, whereby a period of 24 hours after delivery, or at least a period of 24 hours after discovery of the defect, will be considered a reasonable time until at the latest six months after delivery of the Products, which period will be considered an expiry period for complaints on Products. The expiry period for complaints on Print is three months.
10.3 Complaints regarding the calculated prices and other complaints regarding invoices must be submitted in writing to Clipper within a reasonable period of no more than 7 days after the invoice date, stating a description of the nature of the complaint, which period is to be regarded as an expiry period. Subsequent complaints regarding the calculated prices and invoices will not be accepted.
10.4 In the event of a complaint within the meaning of this article, Clipper must be given the opportunity to investigate the merits of the complaint within 7 Days of its notification by Client, failing which any right to a warranty will lapse.
10.5 Complaints will not be dealt with if:
10.6 In the event of justified complaints, Clipper is free to choose between replacing the Products delivered free of charge or set off the amount of returned Products by means of a credit note, to the exclusion of any other form of (additional) compensation obligation, insofar as the complaint is submitted within the warranty period, whereby a warranty period of 3 months applies to Print and a warranty period of 6 months applies to Products.
10.7 Complaints, whether justified or not, submitted outside the warranty period do not qualify for consideration.
10.8 Returns can only take place with the explicit approval of Clipper and at the expense of the Client. For returns that are not due to fault on the part of Clipper, Clipper will charge an amount of 25% of the net invoice amount (on top of the original invoice amount); Client is free to prove that the actual damage suffered is less. The latter does not apply if the return shipment is approved by Clipper. Returns are at the expense and risk of Client and never imply any acknowledgement of liability for Clipper.
10.9 A return shipment (approved by Clipper) must take place within 14 Days after receipt of the complaint by Clipper. Proof of the return must be provided within this period to Clipper.
10.10 In case of a recall, Client is obliged to cooperate with the instructions and / or imposed procedures of Clipper and / or suppliers.
10.11 Clipper assumes towards Client only the warranty which is mentioned in the warranty statement provided by Clipper from Article 10.6 or in the case of "Brand" articles the warranty provided by the supplier, unless otherwise agreed in writing between Parties.
10.12 No warranty is given with regard to advice, preformed inspections and similar transactions carried out by Clipper.
Article 11 Retention of title
11.1 If the Client has not fully complied with any obligation to Clipper, the Products delivered pursuant to Section 3:92 of the Dutch Civil Code shall remain the property of Clipper and also at the expense and risk of the Client. In such case, the Client is deemed to keep the Products for Clipper until the time that it has fully complied with its obligations towards Clipper.
11.2 As long as the ownership of the Products has not passed to the Client, he shall not have the right to alienate or lease the Products, or to encumber them with a security right in any way, unless and provided that it concerns the normal operations of the business, such with the Written consent of Clipper, in which case the Client assigns its claims against third parties to Clipper and shall provide the deed of assignment to Clipper on demand. Clipper may, at its discretion, request the establishment of an undisclosed pledge.
11.3 If the Client fails to meet his payment obligations, he shall be obliged, without further notice of default being required, to make the Products owned by Clipper available, immediately on Clipper's request. Clipper and its employees shall then be entitled to enter the site of the Client to gain actual possession of the Products.
11.4 The Client must insure the interests of Clipper in connection with the retention of title. The Client is obliged to compensate this interest in the event of a contingency and to assign his claim against his insurers to Clipper on its request.
Article 12 Payment
12.1 Unless otherwise agreed in Writing and without prejudice to the provisions of the following paragraph, payments to Clipper must be paid net within 30 Days of the invoice date which period shall be deemed to be a strict deadline. Delay or failure by the Client in respect of collecting the Products or complaints shall not affect this payment obligation.
12.2 Unless explicitly agreed otherwise, all payments from the Client, however made, shall first be used to set off against the costs, then to set off against interest due and finally to set off against the principal sum of the unpaid invoices.
12.3 Set off or any other form of settlement by Client shall never be permitted without an explicit Written agreement.
12.4 Clipper is at all times entitled to require the Client to provide sufficient advance payment or security, at its discretion, for the fulfilment of the Client’s payment obligations, prior to delivery or to proceed to the delivery, whereby Clipper is entitled to suspend further deliveries if the Client fails to meet this requirement, also in case a fixed delivery time has been agreed, without prejudice to Clipper’s right to claim compensation for damages due to the late performance or non-performance of the Contract.
12.5 If the Client fails to pay within the agreed date for payment, the Client shall automatically be in default and have to pay interest to Clipper equal to the statutory commercial interest as stipulated in Section 6:119a of the Dutch Civil Code.
12.6 The costs of extrajudicial collection must be fully reimbursed by the Client who is in default to Clipper. The extrajudicial collection costs amount to 15% of the amount of the principal sum of the claim with a minimum compensation of € 150.
12.7 All Clipper's outstanding receivables from the Client shall be immediately due and payable if the Client is in default, or in the event of liquidation, bankruptcy or an application for bankruptcy, the Client's admission to lawful debt restructuring pursuant to the Debt Management Natural Persons Act (Wet Schuldsanering Natuurlijke Personen), the Client's placement under guardianship, attachment or (temporary) moratorium of payments for the Client.
12.8 The Client must provide Clipper with a correct VAT number. In the event that an incorrect VAT number is passed on by the Client, the Client will be liable for any damage suffered by Clipper as a result. Clipper shall reserve the right to charge the applicable VAT to the Client in respect of the Products/Services supplied.
Article 13 Liability
13.1 Except in the case of gross negligence or deliberate intent of the management or managerial subordinates of Clipper, Clipper shall only be liable for costs, damages or interest, arising as a result of actions or negligence by the aforesaid persons or any other subordinates of Clipper, or of persons employed by Clipper for the performance of the Contract, not exceeding the amount of the invoice value for the Products/Services delivered by Clipper in connection with which the damage has arisen.
13.2 Any liability of Clipper for loss of earnings or other indirect damage, suffered by the Client and/or third parties for whatever reason, is explicitly excluded.
13.3 If the Client resells, delivers, pledges Products/Services, in respect of which Clipper has notified him that it doubts the quality, or if the Client transfers them or makes them available in another way, under whatever title, whether or not for free and whether or not for use, the Client shall be obliged to indemnify Clipper against any claims from third parties for damage, incurred by, or in connection with the Products/Services delivered by Clipper to the other party.
13.4 The Client shall be obliged to indemnify Clipper for any cost and damage, which Clipper could incur because third parties make a claim against it in matters where liability vis-à-vis the Client is excluded in these General Terms and Conditions.
13.5 All clauses in these General Terms and Conditions and in particular concerning the exclusion or restriction of the liability of Clipper and concerning the indemnification of Clipper against claims from third parties, have also been agreed for the benefit of those who are employed by Clipper or third parties for whose actions or negligence Clipper can be liable.
13.6 Insofar as not explicitly agreed otherwise in Writing, all legal claims pursuant to the Contract and these General Terms and Conditions shall lapse after one year of the delivery date.
Article 14 Force majeure
14.1 In the event of default by either Party in the performance of the Contract, for which the defaulting party cannot be held accountable, the performance of the Contract or of the relevant part of the Contract shall be suspended. The Parties shall notify each other of such situation as soon as possible. Only if such suspension has lasted for 3 months, or as soon as it is established that it shall last at least 3 months, each of the Parties shall be able to terminate the Contract, in full or in part, by registered letter with immediate effect, without the Parties being obliged to pay compensation to each other for any damage, without prejudice to the Client's obligation to pay Clipper for the goods already delivered until the time of termination.
14.2 Non-attributable defaults on the side of Clipper shall in any case include, but not be limited to:
14.3 Without prejudice to other rights to which it is entitled, in the case of force majeure, Clipper shall have the right, at its own discretion, to suspend performance of the order of the Client, or to terminate the Contract without judicial intervention, by notifying the Client thereof in Writing.
14.4 If Clipper, in the event of force majeure, has already partially met its obligations, the Client shall have to pay the price due for this part to Clipper.
Article 15 Termination
15.1 A Contract ends when completed, or at a time explicitly determined by the Parties.
15.2 If the Client remains in breach of its obligation to pay on the date for payment or any other obligations towards Clipper, Clipper shall be entitled, after a prior written notice of default, within a term of 14 Days, except in the cases where the Contract or the General Terms and Conditions contain a clear deadline for compliance, in which case the following applies immediately, to terminate the Contract, without prejudice to Clipper's right to full compensation of cost, damage and interests.
15.3 Clipper has the same authorisation as in Article 15.2, however without further notice of default being required, if the Client has applied for a provisional moratorium, or if its bankruptcy has been applied for, or if its goods are attached, in the event of discontinuation or liquidation of its business, or in the event of reduced creditworthiness of the Client in the opinion of Clipper.
Article 16 Secrecy and Intellectual property rights
16.1 All information, in the broadest sense of the word, including but not limited to business information, which is focussed on specific characteristics of the Product/the Service or business of Clipper (work process and pricing), which is provided by Clipper to the Client in the context of the negotiations or the Contract is strictly personal and confidential.
16.2 If negotiations between the Parties do not result in a Contract, the Client shall not be entitled to use the information provided by Clipper in any way, in the broadest sense of the word, and the Client shall return all information and all data (carriers), in the broadest sense of the word, as well as all images, drawings, sketches, photos, prototypes, models, mood boards, etc. to Clipper as soon as possible, and immediately destroy all copies made thereof.
16.3 All intellectual property rights regarding the documents provided by Clipper, i.e. drawings, sketches, schemes, samples, formats, tools, photos, designs, working methods, presentations, advice, images, prototypes, models, mood boards, printed matters, files, websites, brochures, catalogues, etc. provided by Clipper shall remain the physical and intellectual property of Clipper, also if they have been made available to the Client and irrespective of the contribution made to their realisation by the Client or third parties engaged by the Client, and may therefore, except with the prior written permission of Clipper, not be used for any other purpose than for the performance of the Contract between Clipper and the Client.
16.4 Notwithstanding the other provisions of these General Terms and Conditions, Clipper shall retain the rights and powers that Clipper is entitled to pursuant to the Copyright Act.
16.5 The exercise of the aforesaid intellectual property rights - including publication, transfer, reproduction, distribution of data, all in the broadest sense of the word - both during and after the performance of the Contract - is explicitly and exclusively reserved for Clipper.
16.6 The Client shall indemnify Clipper against claims from third parties relating to intellectual property rights relating to goods, logos, pictorial marks, etc. originating from Client.
16.7 Clipper shall grant the Client a user licence with regard to its advice in accordance with the agreed purpose.
16.8 From the moment that the Products, designs, working methods, presentations, advices, formats, images, drawings, sketches, photos, prototypes, models, mood boards, printed matters, files, websites, brochures, and catalogues, etc. are delivered, Clipper is entitled to use these for its portfolio, publicity and promotion, as well as to show them at exhibitions.
16.9 Information provided by the Client to Clipper remains the property of the Client. Clipper is entitled to use this information for the purposes of the Order and everything related thereto, including (external) advertisements. That right of use is valid for an indefinite period of time and therefore also after termination of the Contract/Order.
Article 17 Penalty clause
17.1 For any infringement of Articles 7.1, 11.2 and 16 of these General Terms and Conditions and the obligations contained therein, the Client shall forfeit to Clipper, without further notice of default or judicial intervention being required, an immediately payable fine of €950 per infringement, which is not subject to setoff or moderation, plus an amount of €100 for every day the infringement lasts, without prejudice to the right of Clipper to full compensation of damages as a result of the infringement by the Client and the right of Clipper to claim performance.
Article 18 Third party and transfer
18.1 Client is not entitled to transfer the Contract or one or more of its rights and obligations under the Contract without Clipper's prior Written consent. A restriction on the transferability of rights of action as referred to in this Article will have effect not only under the law of obligations but also under the law of property as referred to in Section 3:83 of Book 3 of the Dutch Civil Code.
18.2 Clipper is permitted to transfer (in whole or in part) its rights and obligations under the Contract to a third party. By entering into the Contract, Client has agreed in advance to such a transfer and Client will render full cooperation to such transfer (pursuant to Section 6:159 of the Dutch Civil Code).
Article 19 Applicable law and competent court
19.1 Any negotiations and Contracts with Clipper are governed exclusively by Dutch law.
19.2 All disputes between the Client and Clipper shall be exclusively resolved by the competent court of Oost-Brabant, in 's-Hertogenbosch, unless another Dutch Court is competent under mandatory law.
19.3 The Vienna Sales Convention (CISG) concluded in Vienna on 11 April 1980 is not applicable.
Article 20 Identity of CLIPPER
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