Conditions of Sale
General Terms and Conditions of Sale IntoProducts Holding BV
These terms and conditions have been filed with the Chamber of Commerce The Hague under number 27296227.
Date: 2 January 2008
1 General
1.1 These general terms and conditions apply exclusively—excluding any conditions of the client—to the formation, content, and execution of all agreements concluded between the client and IntoProducts Holding BV.
2 Agreement, Offer, and Confirmation
2.1 All offers are non-binding and valid for 14 days. Price quotations are subject to change due to unforeseen changes in the scope of work. Prices are exclusive of VAT and other government-imposed charges. The rates and offers stated do not automatically apply to future assignments.
2.2 Assignments must be confirmed in writing by the client. If the client fails to do so but nevertheless agrees that IntoProducts Holding BV commences execution of the assignment, the content of the offer will be considered as agreed upon. Additional verbal agreements and stipulations are binding on IntoProducts Holding BV only after they have been confirmed in writing by IntoProducts Holding BV.
2.3 If the client intends to assign the same project to parties other than IntoProducts Holding BV at the same time, or has previously assigned it to another party, they must inform IntoProducts Holding BV of this, including the names of those other parties.
2.4 The general terms and conditions of the client do not apply and are explicitly rejected.
2.5 If the client provides IntoProducts Holding BV with data, drawings, etc., IntoProducts Holding BV is entitled to rely on their accuracy and will base its offer on them.
2.6 The prices stated in the offer are based on delivery ex works, in accordance with Incoterms 2000. Prices are exclusive of VAT and packaging.
2.7 Notwithstanding the provisions of clause 2.8, the client and IntoProducts Holding BV may agree that IntoProducts Holding BV will arrange transport. In that case, the risk of storage, loading, transport, and unloading remains with the client. The client may insure against these risks.
3 Intellectual Property Rights, Ownership Rights, License and Know-How
3.1 Unless otherwise agreed, all intellectual property rights arising from the assignment—including but not limited to patent rights, design rights, and copyrights—shall be vested in IntoProducts Holding BV. Insofar as such rights can only be acquired by means of registration or filing, only IntoProducts Holding BV is authorized to do so.
3.2 Unless otherwise agreed, the assignment does not include conducting research into the existence of rights such as patents, trademarks, design or model rights, copyrights, or portrait rights of third parties. The same applies to any research into the possibility of such protection for the client.
3.3 Unless otherwise agreed, all working drawings, illustrations, prototypes, scale models, molds, designs, design sketches, films, and other materials or (electronic) files created by IntoProducts Holding BV in the execution of the assignment remain the property of IntoProducts Holding BV, regardless of whether they have been made available to the client or to third parties.
3.4 The rights to the materials mentioned in clause 3.3 remain the property of IntoProducts Holding BV, even if the client has been charged for their creation. These materials may not be copied, used, or shown to third parties without the express permission of IntoProducts Holding BV. In the event of a breach of this provision, the client shall owe IntoProducts Holding BV a penalty of €25,000,00. This penalty may be claimed in addition to compensation for damages under the law.
3.5 After the completion of the assignment, neither the client nor IntoProducts Holding BV has an obligation to retain any materials or data used during the assignment.
3.6 When the client fully complies with their obligations under the agreement with IntoProducts Holding BV, they will obtain an exclusive license to use the design, insofar as it concerns the right of publication and reproduction, in accordance with the purpose agreed upon in the assignment.
If no specific purpose has been agreed upon, the license shall be limited to the use that was clearly intended at the time the assignment was issued. These intended uses must have been made known to IntoProducts Holding BV prior to the conclusion of the agreement.
3.7 The client is not entitled to use—or allow others to use—the design in a broader or different manner than agreed, without written permission from IntoProducts Holding BV. In the event of unauthorized or broader use—including modification, distortion, or alteration of the preliminary or final design—IntoProducts Holding BV is entitled to compensation for infringement of at least three times the agreed fee, or a reasonable and fair amount in proportion to the infringement, without prejudice to IntoProducts Holding BV’s right to claim compensation for actual damages.
3.8 The client is no longer entitled to use the results provided, and any license granted to the client under the assignment will be revoked:
a. from the moment the client fails to fully meet their (payment) obligations under the agreement, unless the breach is of minor significance in the context of the overall assignment;
b. if the assignment is terminated prematurely for any reason, unless such consequences would be contrary to reasonableness and fairness.
3.9 With due regard for the client's interests, IntoProducts Holding BV is free to use the design for its own publicity or promotional purposes.
4 Confidentiality
4.1 The client and its employees are bound to confidentiality as agreed orally or in writing at the time of assignment. This agreement implies that certain knowledge may not be disclosed or applied without the permission of IntoProducts Holding BV. If the party that has committed to confidentiality breaches this agreement, the matter will be brought before a court.
5 Fees, Pricing, and Additional Costs
5.1 All prices quoted by IntoProducts Holding BV are exclusive of VAT, packaging and shipping costs, and any other applicable charges on the goods.
5.2 IntoProducts Holding BV expressly reserves the right to adjust prices, even after sending the order confirmation. IntoProducts Holding BV is entitled to pass on to the client any cost increases arising after the agreement has been concluded, including increases in tariffs, duties, taxes, raw material prices, labor costs, exchange rate fluctuations, etc.
5.3 The prices apply to delivery, even if it takes place in parts. If, beyond IntoProducts Holding BV's control, any price-determining factors increase, IntoProducts Holding BV has the right to adjust the agreed price, accordingly, providing an itemized specification. In the case of contracted work, IntoProducts Holding BV is entitled to charge for additional work.
5.4 Payment of the price increase, as referred to in clause 5.2, shall be made at the same time as the payment of the principal sum or the final installment.
5.5 In addition to the agreed fee or price, the client shall also reimburse IntoProducts Holding BV for the costs incurred in executing the assignment.
5.6 If the fee is in any way dependent on facts or circumstances that must be evident from the client’s records, IntoProducts Holding BV has the right—after the client’s declaration—to have the client’s records audited by an accountant of IntoProducts Holding BV’s choice. If the audit reveals a discrepancy of more than 2% or €100.00 from the client’s report and the final settlement, the audit costs shall be borne by the client.
5.7 Travel and accommodation expenses are not included in the price of the work.
5.8 Changes to the work shall, in any case, result in additional or reduced work if:
a. there is a change in the design;
b. the information provided by the client does not correspond to reality;
c. there is a deviation of more than 10% from the estimated quantities.
6 Execution of the Agreement
6.1 The client is obliged to do everything that may reasonably be necessary or desirable to enable timely and proper delivery and/or performance by IntoProducts Holding BV.
6.2 Before proceeding with production, reproduction, or publication, both parties shall be given the opportunity to inspect and approve the final models, prototypes, or samples of the design. If IntoProducts Holding BV issues instructions or assignments to manufacturers or third parties, whether on behalf of the client or not, the client must confirm their approval of the aforementioned in writing upon request by IntoProducts Holding BV.
6.3 The work is considered completed when:
a. the client has approved the work;
b. the client has put the work into use. If the client uses part of the work, that part shall be considered completed;
c. IntoProducts Holding BV has informed the client in writing that the work is completed and the client has not responded in writing within 14 days to indicate whether the work is approved or not;
d. the client does not approve the work based on minor defects or missing parts that can be remedied or delivered within 30 days and that do not prevent the use of the work.
6.4 If the client does not approve the work, they must inform IntoProducts Holding BV in writing, stating the reasons.
6.5 If the client does not approve the work, they shall give IntoProducts Holding BV the opportunity to complete the work again. The provisions of this article shall then apply anew.
7 Advice
7.1 The client cannot derive any rights from advice or information provided by IntoProducts Holding BV if it does not relate directly to the assignment.
7.2 All advice given by IntoProducts Holding BV is non-binding, offered to the best of its knowledge and ability, and shall never give rise to any liability.
7.3 The responsibility for any purchase based on advice from IntoProducts Holding BV lies entirely with the client.
8 Engaging Third Parties
8.1 Third parties engaged by IntoProducts Holding BV will, where reasonably possible, be selected in consultation with the client and with due care. IntoProducts Holding BV is not liable for shortcomings or failures by third parties. The costs associated with engaging third parties shall be borne by the client.
8.2 If IntoProducts Holding BV, at the client's request, provides a cost estimate for third-party services or goods, this estimate shall be for indicative purposes only. Upon request, IntoProducts Holding BV can obtain quotes on behalf of the client.
8.3 If, in executing the assignment and by explicit agreement, IntoProducts Holding BVprocures goods or services from third parties at its own expense and risk and subsequently supplies them to the client, then the terms and conditions of the third-party supplier regarding the quality, quantity, specifications, and delivery of these goods or services shall also apply to the client.
9 Delivery Time
9.1 The delivery time is determined by IntoProducts Holding BV as an approximation.
9.2 In setting the delivery time, IntoProducts Holding BV assumes that it can execute the assignment under the conditions known to it at that time.
9.3 IntoProducts Holding BV reserves the right to deliver orders in parts. The client must treat each partial delivery as a separate delivery.
9.4 The delivery time begins once agreement has been reached on all technical details, all necessary data and final drawings have been received by IntoProducts Holding BV, the agreed (instalment) payment has been made, and all necessary conditions for executing the assignment have been fulfilled.
9.5 If circumstances differ from those known to IntoProducts Holding BV when the delivery time was determined, IntoProducts Holding BV may extend the delivery period by the time necessary to complete the assignment under these new circumstances. If the work cannot be fitted into IntoProducts Holding BV's schedule, it will be completed as soon as scheduling permits.
9.6 In the case of additional work (more work), the delivery time will be extended by the time needed to procure the necessary materials and components and to complete the additional work. If the additional work cannot be scheduled immediately, it will be completed as soon as planning allows.
9.7 If IntoProducts Holding BV’s obligations are suspended, the delivery time will be extended by the duration of the suspension. If continuation of the work cannot be scheduled immediately, it will resume as soon as scheduling permits.
9.8 Exceeding the agreed delivery time shall never entitle the client to compensation, unless expressly agreed in writing.
10 Packaging
10.1 Goods will be packaged by IntoProducts Holding BV if deemed necessary or if explicitly requested by the customer. Packaging costs will be charged to the customer at a rate determined by IntoProducts Holding BV.
10.2 When IntoProducts Holding BV provides or has third parties provide pallets, packing cases, crates, containers, or similar materials for packaging and/or transport—whether subject to a deposit or security fee—the customer is obliged to return these packaging and/or loading materials at their own expense to the address specified by IntoProducts Holding BV. Single-use packaging becomes the property of the customer and cannot be returned to IntoProducts Holding BV.
11 Transport, Risk, and Retention of Title
11.1 The customer is obligated to accept the goods offered by IntoProducts Holding BV. Goods are deemed delivered as soon as they are ready for shipment to the customer.
11.2 Shipment of goods shall be carried out by a carrier appointed by IntoProducts Holding BV, unless the customer indicated at the time of ordering that they will arrange transportation themselves. In all cases, shipment is at the customer’s expense and risk.
11.3 After delivery, IntoProducts Holding BV retains ownership of the delivered goods as long as the customer:
a. fails or will fail to meet their obligations under this or similar agreements;
b. has not paid or will not pay for work performed or to be performed under such agreements;
c. has not settled claims arising from non-compliance with the aforementioned agreements, including damages, penalties, interest, and costs.
11.4 As long as the delivered goods are subject to retention of title, the customer may not encumber them outside the normal course of business.
11.5 Once IntoProducts Holding BV invokes its retention of title, it is entitled to reclaim the delivered goods.
12 Liability
12.1 Except in cases of intent or deliberate recklessness by IntoProducts Holding BV, IntoProducts Holding BV’s liability for damages arising from an agreement or a wrongful act committed against the client is limited to the invoice amount related to the part of the assignment that has been executed, minus any costs incurred by IntoProducts Holding BV for engaging third parties. This liability is furthermore capped at a maximum of €45,000.00 and, in any case, limited to the amount paid out by the insurer to IntoProducts Holding BV, if applicable.
12.2 IntoProducts Holding BV is not liable for:
a. shortcomings resulting from the use of an item that is unsuitable for the intended purpose but was used at the insistence of the client;
b. errors or defects in materials provided by the client;
c. misunderstandings, errors, or deficiencies in the execution of the agreement caused by actions of the client, such as not providing complete, proper, and clear information/materials in time or failing to allow IntoProducts Holding BV to begin execution at the agreed time;
d. defects in supplier quotations or for exceeding supplier price estimates;
e. errors or deficiencies in the design or text/data, if the client has approved them or was given the opportunity to review and chose not to;
f. errors or deficiencies in the design or text/data if the client chose not to create or have made a model, prototype, or sample, and such errors would have been observable in that model, prototype, or sample.
12.3 IntoProducts Holding BV is not liable for damage caused by a defect in its product:
a. if it did not introduce the product into circulation;
b. if it was unaware of the defect and could not reasonably have been expected to be aware of it;
c. if the defect did not exist at the time the product was introduced into circulation or arose later;
d. if the defect is the result of compliance with mandatory government regulations;
e. if, based on the state of scientific and technical knowledge at the time the product was introduced, the defect could not have been discovered;
f. if IntoProducts Holding BV only supplied a component of a product and the defect was due to the design of the complete product or the instructions provided by the product’s manufacturer;
g. if IntoProducts Holding BV did not provide any guarantee that such a defect was absent.
12.4 IntoProducts Holding BV is not liable if another party presents itself as the producer by placing their name, brand, or another distinguishing mark on the product.
12.5 Any liability shall lapse six months after the assignment has been completed.
12.6 The client shall indemnify IntoProducts Holding BV against all claims from third parties concerning product liability resulting from a defect in a product that was delivered by the client to a third party, and which (partly) consists of products and/or materials supplied by IntoProducts Holding BV.
13 Payment
13.1 IntoProducts Holding BV is entitled to invoice its fees on a monthly basis for work performed and costs incurred in connection with the execution of the assignment.
13.2 The client shall make all payments owed to IntoProducts Holding BV without deduction or set-off, except for setoffs related to prepayments connected to the agreement that the client has provided to IntoProducts Holding BV. The client is not entitled to suspend payment of invoices for work already performed.
13.3 If agreed upon, IntoProducts Holding BV may send the client an advance invoice for at least fifty percent (50%) of the total quoted amount, after the client has confirmed the assignment in writing. IntoProducts Holding BV will begin work only after this advance invoice has been paid. The payment term for the advance invoice is 7 days; for all other invoices, payment is due within 30 days of the invoice date. If payment is not made by the due date, the client is in default and will owe statutory interest.
13.4 Unless otherwise agreed, payment shall be made as follows:
50% of the total price upon assignment (advance invoice).
40% of the total price upon completion.
10% of the total price upon delivery.
13.5 Payment shall be made either at IntoProducts Holding BV’s place of business or into an account designated by IntoProducts Holding BV.
13.6 Regardless of the agreed payment terms, the client is obliged, upon request by IntoProducts Holding BV, to provide sufficient security for payment, as judged by IntoProducts Holding BV. If the client fails to do so within the specified period, they shall be in default immediately. In such a case, IntoProducts Holding BV has the right to terminate the agreement and recover damages from the client.
13.7 The client is not entitled to set off any claim against IntoProducts Holding BV, unless IntoProducts Holding BV has been declared bankrupt.
13.8 The full payment obligation becomes immediately due and payable if:
a. a payment term has been exceeded;
b. the client is declared bankrupt or applies for suspension of payment;
c. assets or claims of the client are seized;
d. the client (as a legal entity) is dissolved or liquidated;
e. the client (as a natural person) is placed under guardianship or passes away.
13.9 If payment has not been made within the agreed payment period, the client shall owe IntoProducts Holding BV all extrajudicial collection costs, with a minimum of €10,000.00.
13.10 If IntoProducts Holding BV is successful in legal proceedings, all costs incurred by IntoProducts Holding BV in connection with those proceedings shall be borne by the client.
14 Warranties, Indemnities, and Complaints
14.1 IntoProducts Holding BV guarantees the soundness of the delivered products during the warranty period with regard to material and/or manufacturing defects. The warranty period begins on the date of delivery of the product and lasts for six (6) months unless otherwise agreed.
14.2 IntoProducts Holding BV guarantees that the delivered product has been designed by or on behalf of IntoProducts Holding BV and that, if the design is subject to copyright, IntoProducts Holding BV qualifies as the author under copyright law and holds the rights to the work.
14.3 The client indemnifies IntoProducts Holding BV, and any third parties engaged by IntoProducts Holding BV for the assignment against all claims by third parties arising from the application or use of the result of the assignment.
14.4 The client indemnifies IntoProducts Holding BV against all claims related to intellectual property rights concerning materials or data provided by the client that are used in the execution of the assignment.
14.5 The client must inspect the product no later than 14 days after delivery. If this period expires without written and detailed notification of justified complaints, the product is deemed accepted, and the right to invoke the warranty lapses.
14.6 Without prejudice to IntoProducts Holding BV’s obligation to fulfill its warranty commitments, acceptance as defined in the preceding clauses excludes any claim by the client related to shortcomings in IntoProducts Holding BV's performance.
14.7 The right to warranty immediately lapses in the following cases:
a. If the customer has repaired or caused the repair of the defect without prior explicit consent from IntoProducts Holding BV;
b. If the customer has made or caused changes/modifications to the delivered goods;
c. If the delivered products have been used improperly;
d. If the delivered products have been poorly, incorrectly, or inadequately maintained;
e. If the delivered products have been improperly installed, assembled, modified, or repaired by a third party;
f. If the delivered products have not been handled in accordance with instructions provided by IntoProducts Holding BV;
g. If the defect is the result of normal wear and tear.
14.8 Returns will only be accepted by IntoProducts Holding BV with prior approval and must be shipped carriage paid.
14.9 The costs of repair or replacement will be charged to the party who requested the repair or replacement.
14.10 IntoProducts Holding BV and/or its authorized representatives must be given the opportunity to investigate the defects without hindrance, if and to the extent IntoProducts Holding BV deems this necessary.
14.11 The client must always give IntoProducts Holding BV the opportunity to remedy any defect.
14.12 The client may only invoke these warranty provisions if and insofar as all obligations toward IntoProducts Holding BV have been fulfilled.
14.13 IntoProducts Holding BV can never guarantee that the delivered products are suitable for the purpose for which the client intends to use them.
14.14 The obligations stated in this article apply exclusively to the original client.
15 Termination and Dissolution of the Agreement
15.1 If the client terminates the agreement, they shall pay, in addition to compensation for damages, the fees, prices, and costs incurred in relation to the work performed up to that point.
15.2 If the agreement is dissolved by IntoProducts Holding BV due to an attributable failure by the client to fulfill the agreement, the client shall pay, in addition to compensation for damages, the fees and costs related to the work performed up to that point. Conduct on the part of the client that makes it unreasonable to expect IntoProducts Holding BV to complete the assignment shall also be regarded as an attributable failure in this context.
15.3 The compensation referred to in the previous two paragraphs shall include at least the costs arising from obligations that IntoProducts Holding BV has entered in its own name with third parties for the execution of the assignment, as well as at least 30% of the remaining portion of the fee that the client would have owed upon full completion of the assignment.
15.4 Both IntoProducts Holding BV and the client are entitled to immediately dissolve the agreement in whole or in part in the event of bankruptcy or (provisional) suspension of payment of the other party. In the event of the client’s bankruptcy, IntoProducts Holding BV has the right to terminate the granted right of use, unless doing so would conflict with the principles of reasonableness and fairness.
15.5 In the event of dissolution by the client due to an attributable failure by IntoProducts Holding BV to meet its obligations, the services already rendered, and the corresponding payment obligation shall not be subject to reversal, unless the client proves that IntoProducts Holding BV is in default regarding those services. Amounts invoiced by IntoProducts Holding BVbefore dissolution, in connection with what has already been properly performed or delivered under the agreement, shall remain payable without prejudice and become immediately due upon termination, subject to the provisions of the previous sentence.
15.6 If IntoProducts Holding BV’s work consists of repeatedly performing similar services, the agreement shall, unless otherwise agreed in writing, be deemed to be for an indefinite period. This agreement may only be terminated by written notice, observing a reasonable notice period of at least three (3) months.
16 Other Provisions
16.1 The client is not permitted to transfer any rights arising from an agreement with IntoProducts Holding BV to third parties, except in the case of transfer of their entire business.
16.2 Dutch law applies to the agreement between IntoProducts Holding BV and the client. The competent court for disputes between IntoProducts Holding BV and the client shall be the court in the district where IntoProducts Holding BV is established, or the court otherwise legally competent, at IntoProducts Holding BV’s discretion.
16.3 If the supplier fails to fulfill obligations towards IntoProducts Holding BV, applies for suspension of payments, bankruptcy is requested, is placed under guardianship or administration, a decision to dissolve is made against them, and/or attachment is imposed against them, IntoProducts Holding BV is entitled to consider the agreement with the supplier dissolved by operation of law.
16.4 In all cases where IntoProducts Holding BV is entitled under these terms to dissolve or cancel an agreement, or where such dissolution occurs by operation of law, judicial intervention is excluded.
16.5 If an agreement is dissolved or canceled for any reason, those provisions of these terms and conditions that regulate the (extent of) the supplier’s liability towards IntoProducts Holding BV and the supplier’s indemnification of IntoProducts Holding BV against third-party claims, as well as all provisions in Article 5 (Payment), remain fully in effect.