Art. 1. Thinkerbell NV/SA shall hereinafter be referred to as the Seller. The client shall hereinafter be referred to as the Buyer. The Seller and the Buyer shall hereinafter be jointly referred to as the Parties and individually as a Party.
Art. 2. The following terms and conditions and provisions shall apply to all quotes, work orders, contracts and supplies of goods and services offered by the Seller. The Seller’s standard terms and conditions of sale shall at all times take precedence over any other provision that may be referred to in any documentation between the Seller and the Buyer. The Seller shall not be bound by the terms and conditions of purchase detailed in any of the Buyer’s letters or other documents. The Seller’s signature and return of purchase orders shall solely be considered as acknowledgement of receipt and shall not imply acceptance of the Buyer’s terms and conditions. By placing an order, the Buyer acknowledges that they have read and accepted the Seller’s standard terms and conditions of sale. Deviations shall only be permitted in the form of specific terms and conditions set out in an agreement made in writing and validly signed and concluded between the Seller and the Buyer.
Art. 3. All quotes and estimates drawn up by the Seller are non-binding and subject to sale or sufficient stock. Quotes shall be valid for 30 days, unless otherwise indicated in the quote, and subject to changes in price. Estimates and quotes shall be based on the raw material prices, wages, parities of the currencies in which the raw materials are quoted, energy prices, etc. applicable at the time. Should these change, the Seller reserves the right to adjust the prices accordingly. In the case of combined quotes, the Seller shall not be obliged to deliver part of the order at the agreed share of the total price. The Seller shall only be bound by quotes accepted by the Buyer, with acceptance being confirmed in writing within 30 days.
Art. 4. The sale of paper and cardboard is governed by the European Union’s 1991 general terms and conditions of sale applicable to manufacturers of paper and cardboard, insofar as they do not deviate from these terms and conditions of sale.
Art. 5. By providing the Seller with production elements (e.g. raw materials, models, copies and/or digital files) with the request, without explicit reservation, to supply a proof or draft, the Buyer shall be obliged to entrust the Seller with carrying out the work or to compensate the Seller for the costs incurred.
Art. 6. Any person or company that places an order with the request to invoice a third party shall be personally liable for the payment thereof, even if the Seller has agreed to this form of invoicing and if the third party has co-signed the purchase order.
Art. 7. Unless specified otherwise, all of the Seller’s prices shall be given in euro and exclusive of VAT, any advertising taxes applicable to printed materials and any other charges or licences. These shall always be borne by the Buyer.
Art. 8. The Seller shall be entitled to have some work carried out by third parties, if and to the extent to which this proves necessary for the proper fulfilment of the order.
Art. 9. The Buyer shall not be entitled to a right of renunciation with regard to the products mentioned in Article 80 §4 of the Belgian Trade Practices Act of 14 July 1991. The Buyer may not request a cooling-off period in the case of contracts concerning custom-made products or products of a personal nature.
Art. 10. Should the Seller’s confidence in the Buyer’s solvency be affected by legal action against the Buyer and/or other demonstrable events, the Seller reserves the right to suspend all or part of the order, even if some or all of the goods have already been dispatched, and to demand suitable guarantees from the Buyer. If the Buyer refuses to comply, the Seller reserves the right to cancel all or part of the order. Any action detailed in this article shall be without prejudice to the Seller’s right to claim compensation for damages and interest.
Art. 11. Each Party shall be liable for the professional quality of their work and the delivery dates they set and shall acknowledge their liability in this regard.
Art. 12. The Seller shall fulfil orders to the best of their ability and according to best practice. The Seller shall also be obliged to adhere as closely as possible to the agreed delivery dates. However, any delivery delays shall not entitle the Buyer to any compensation for damages or to terminate the contract.
Art. 13. The Buyer shall assume all risks relating to any order fulfilled by the Seller on the Buyer’s behalf.
Art. 14. The Buyer shall ensure that all data and terms and conditions indicated by the Seller as necessary or which should reasonably be understood by the Buyer as necessary for the fulfilment of the order are communicated to the Seller in good time or, in the case of assembly, that the terms and conditions are met in full by the time the work begins. This shall include, but shall not be limited to, the supply of the necessary elements and digital files, the return of corrected proofs and the OK to print, the opening of and full access to sites and access roads, the provision of appropriate utilities, the performance of a site survey checking safety and the strength of the supporting structures, and the introduction of adequate measures with regard to safety and the Belgian General Regulation on Occupational Safety (ARAB/RGPT).
Art. 15. Should the Buyer fail to communicate data in time or to meet all associated terms and conditions, the Seller shall be entitled to suspend the fulfilment of the order and/or to charge to the Buyer the additional costs incurred for delay at the usual rates.
Art. 16. All orders shall be fulfilled using normally available raw materials. The Buyer must specify any special requirements (e.g. the lightfastness of the inks, suitability for use with foodstuffs) when requesting a quote. Should the Buyer communicate any such requirements at a later date, the price may be adjusted as a result.
Art. 17. If during order fulfilment it appears necessary to change or supplement the work to be carried out to ensure that the order is fulfilled properly, the Parties shall amend the order in good time and by mutual agreement. As a result, the completion date and/or price may change. The Seller shall inform the Buyer of this as soon as possible.
Art. 18. The Buyer alone shall be liable for and shall bear the risk of the erection of banners, advertising panels or other materials with or without permission.
Art. 19. If the order is to be fulfilled in phases, the Seller may stop work on a given phase until the Buyer has approved in writing the results of the preceding phase.
Art. 20. In light of the production process, the Buyer shall accept certain deviations and tolerances regarding the delivered goods and quantities. It is not possible to guarantee a perfect match with the colours to be reproduced or the perfect immutability of the inks, inking and register.
Art. 21. With regard to paper, cardboard and plastic processed by the Seller, the Buyer shall accept the tolerances imposed by the manufacturers of these materials.
Art. 22. In light of the production process, the quantities delivered and invoiced may be up to 5% greater or smaller than the quantities ordered.
Art. 23. A tolerance of 3% either way shall be permitted for every dimension. This tolerance shall continue to apply even after a model has been approved.
Art. 24. Owing to the automation of the production process, a number of poor copies are technically unavoidable. A maximum tolerance of 1% per shipment shall be permitted to this end.
Art. 25. The uniformity of the colours and of the paper and cardboard used is not guaranteed. A tolerance of +8% is permitted with respect to the grammage of the originally intended components. The uniformity of the colour of the printing inks used by the Seller cannot be guaranteed. Minor deviations in the font or printing are also possible.
Art. 26. Force majeure encompasses all circumstances that prevent, reduce or delay the Seller’s fulfilment of the order and which are beyond the Seller’s control. This comprises the following for both the Seller and their suppliers: war, civil war, mobilisation, riots, strikes, lock-outs, fire, flooding, machinery breakdown, interruption of means of transport, supply issues affecting raw materials, materials and energy, restrictions and bans imposed by the government, and any hindrance beyond the Seller’s control.
Art. 27. In the event of force majeure, the Seller shall be released from any liability and shall, depending on the situation, be able to either reduce their commitments, terminate the contract or suspend the performance thereof, without being liable to pay any compensation.
Art. 28. Should force majeure prevent the fulfilment of obligations for more than six months, both Parties shall be authorised to break off the contract without being required to pay compensation for damages. If the Seller had already partly fulfilled their obligations when the force majeure occurred, or can only fulfil their obligations in part, they shall be entitled to invoice this work and the Buyer shall be obliged to pay this invoice as if it were a separate order.
Art. 29. By placing an order to reproduce an object protected by copyright or any individual proprietary right, the Buyer indicates that no copyright or individual proprietary right of third parties has been infringed and shall indemnify the Seller in and out of court against all consequences, both financial and otherwise, arising from the reproduction. Any dispute regarding reproduction rights shall suspend the fulfilment of the order.
Art. 30. The Buyer must indemnify the Seller vis-à-vis third parties against any liability, loss or expense in connection with all alleged infringements of patents, trademarks, drawings and models and other intellectual property rights resulting from the Buyer’s order and instructions. The Buyer shall be responsible for the intellectual property rights of the forwarded visual material or the Buyer must have the necessary permission to use said material.
Art. 31. The Seller shall own any drafts, drawings, photographs, films, computer files, software, diecuts, moulds and so on made by or at the request of the Seller. Unless specified otherwise, the Buyer may not demand their return before or after the delivery of the goods and/or services. The Seller shall also retain the right to use the knowledge gained from the performance of the work for other purposes. As such, plans, drawings, models, proofs, diecuts, printing stamps and so on manufactured with the Seller’s involvement shall remain the Seller’s property, even if the Buyer has paid a share of the costs. Covering some of the costs shall merely guarantee to the Buyer that these materials will be used on the Buyer’s behalf until the moment they are taken out of circulation for whatever reason. The retention of these materials can only be guaranteed for one year after they were last used. The materials referred to in this article shall remain on the Seller’s premises at the Buyer’s risk.
Art. 32. Reprinting or copying in any form and by any process whatsoever, when carried out without the prior consent of the rights holder, shall constitute an act of counterfeiting or unfair competition. Unless explicitly agreed in advance, the relinquishment or invoicing by the Seller of typesetting, drafts, drawings, photographs, films, software, moulds and so on shall not in itself constitute an infringement of the above.
Art. 33. Should the Buyer make material available to the Seller, they must do so in a timely manner based on the order schedule.
The Buyer shall bear the risk and cost of transporting the material to its destination. Receipt of the material shall be confirmed by the Seller’s signature of transport documents for receipt alone.
Art. 34. The Seller shall take steps to ensure that the data made available by the Buyer will only be used by the Seller to fulfil the order. The Seller shall not disclose such data to third parties without the Buyer’s written consent. The Seller shall comply with reasonable instructions from the Buyer regarding the guarantee of confidentiality.
Art. 35. Should the Buyer make digital files available to the Seller, the Buyer must retain the original files and shall be liable for the quality of the files provided. The Buyer must supply the files according to the Seller’s delivery terms and conditions and instructions. If the supplied files require additional processing, this shall incur additional charges. Barring malicious intent or gross negligence on the part of the Seller, their personnel or subcontractors, difficulties or delays during production caused by problems with the supplied material may result in the delivery date being postponed. Prices may also be adjusted.
Art. 36. At the Buyer’s request, the Seller shall provide a simple proof (e.g. laser print, blueprint or imposition proof). Any proofs provided, e.g. in true colours and/or on printing paper, shall be subject to an extra charge. Should the Buyer not request a proof, then the Seller shall under no circumstances be liable for the quality of the finished product.
Art. 37. The Seller must correct any typographical errors and word breaks pointed out by the Buyer but shall not be held liable for spelling, linguistic or grammatical errors. Any changes to the original order (e.g. in the text, editing or insertion of illustrations, regarding formatting, printing or binding) made in writing or otherwise by or on behalf of the Buyer shall be subject to an extra charge invoiced to the Buyer and result in the extension of the delivery date. This applies likewise for delays pending the OK to print. Changes made verbally, whether in person or by telephone, shall be made at the Buyer’s risk.
Art. 38. The submission by the Buyer of a dated and signed OK to print shall release the Seller from all liability for errors or omissions noted during or after printing. The OK to print shall remain the Seller’s property and shall serve as evidence in case of dispute.
Art. 39. If required by law, the Buyer may not oppose the Seller’s name being mentioned, even if the printed material already contains the name of a publisher or intermediary, advertising agency or others.
Art.40. Unless specified otherwise, goods are sold ex works. Packaging and transport risks and expenses shall always be borne exclusively by the Buyer, even if the goods have been sold with carriage paid. The Buyer shall bear the risk of transporting the goods. If pallets are not returned to the Seller, the Buyer shall be charged 20 euro/pallet or invoiced the cost of retrieving the pallets.
Art.41. The Buyer shall assume all expenses and risk relating to goods (e.g. paper, films, data carriers) provided to the Seller by the Buyer and handed over for safekeeping. The same applies to production elements such as typesetting, films, assemblies, diecuts, drafts, drawings, discs and so on. Offset plates will not be retained. Die-cuts shall be retained for one year.
Art.42. If the Buyer wishes the Seller to retain certain production elements, they will have to come to an agreement in writing with the Seller before the fulfilment of the order. The Buyer shall always bear the risk of storage and shall expressly release the Seller from any liability in connection with such storage (more specifically loss or damage), except in the event of malicious intent or gross negligence on the part of the Seller, their personnel or subcontractors or when the aforementioned storage is one of the main services to be provided under the contract.
Art.43. This also applies to goods destined for the Buyer. All materials and goods that cannot be delivered, at the Buyer’s request or for a reason attributable to the Buyer, will be stored at the Buyer’s risk.
Art.44. Storage shall cost 8.05 euro/pallet per month, starting from the first day of storage. In addition, each month started shall be invoiced in full. Furthermore, the Seller reserves the right to place these goods in storage at the Buyer’s expense, after notifying the Buyer thereof by registered letter and not having received a response within eight working days after the dispatch date. If the Buyer does not collect the goods within one month after the expiry of the date communicated to them regarding the collection of the goods, the Seller reserves the right to consider the contract as terminated ipso jure, without giving prior notice. The Buyer shall then owe not only the storage costs but also an indemnity equal to 20% of the value of the order as a lump sum compensating for loss of profit. However, the Seller may also, at their discretion, demand payment of the storage costs and fulfilment of the sales contract. Should the Buyer fail to pay by the agreed date, the Seller shall be permitted to retain these goods as a guarantee and security for the amounts due.
Art.45. When an order is placed, the Seller may request the payment of a deposit equal to one-third of the order amount, another third after receipt of the OK to print and the remainder upon delivery.
Art. 46. All payments must be made in euro, no later than 30 calendar days after the invoice date (which is the due date) without discount.
Art. 47. Should the Buyer fail to pay by the due date, the Seller shall be entitled, ipso jure and without prior notice, to charge interest at the benchmark interest rate applied by the European Central Bank plus seven percentage points and rounded up to the nearest half percentage point. Furthermore, the Buyer will have to pay legal costs and all relevant recovery costs. In the event of non-payment by the due date, the Seller also reserves the right to increase the invoice amount by 15%, with the minimum increase being 250 euro. Costs relating to unpaid bills of exchange or cheques as well as any other collection costs are not included in this amount and shall be charged to the Buyer separately. Moreover, the Seller shall also be entitled to demand immediate payment of the balance of all other invoices not yet due.
Art. 48. If the Buyer fails to fulfil their obligations, the sale shall be terminated ipso jure and without prior notice, without prejudice to the Seller’s rights to compensation for damages and interest. The expression of the Seller’s will to this effect by registered letter shall suffice to this end. The Seller shall also have the right to suspend any ongoing orders.
Art. 49. The drawing down and/or acceptance of bills of exchange or other negotiable documents shall not imply novation or constitute a derogation from the terms and conditions of sale.
Art. 50. In the event of delivery upon request, the invoice amount of the total order shall be charged at the time of the first delivery. Transport and any additional handling costs shall be invoiced at the time of the request.
Art. 51. Should the Buyer cancel or temporarily suspend the order, invoicing shall take place according to the stage of order fulfilment that has been reached (wages, raw materials, subcontracted work, etc.). This amount shall be increased by a standard additional fee of 10%.
Art. 52. The Buyer shall only become the owner of the sold goods once the amounts due have been paid in full. However, any risks which the goods may incur shall be borne by the Buyer as soon as they are made available to them.
Art. 53. Any advice given by the Seller with regard to quality, implementation methods, dimensions, etc. shall be given to the best of the Seller’s ability. The Buyer cannot claim any compensation in connection with such advice.
Art. 54. The Seller cannot under any circumstances be held liable for damage resulting directly or indirectly from causes over which the Seller has no control. In addition to the above-mentioned cases of force majeure, this also includes any damage to installed material or consequential damage resulting from wind speeds above 75 km/h.
Art. 55. By having a representative sign the delivery note or work record, the Buyer agrees to the conformity of all visible elements of the delivered goods and services. Complaints regarding the quality or conformity of the delivered goods must be submitted to the Seller as soon as possible and must be confirmed by registered letter within eight working days following receipt of the goods or services. If the Buyer does not take delivery of the goods, the period of eight days starts from the date of the invitation to take delivery of the goods or services provided or, failing this, from the invoice date. If the Seller has not received any complaints within this eight-day period, the Buyer shall be deemed to have accepted the goods in full. If the Buyer uses part of the delivered goods or has them sent by post to third parties or delivered to a distribution company for distribution, this implies that the Buyer has accepted the entire delivery. Defects affecting part of the delivered goods or a partial dispute regarding the performance of the service shall not entitle the Buyer to reject the entire order.
Art. 56. Returns may only be made after approval by the Seller. If the Seller acknowledges the merits of a complaint, the Seller shall undertake, at their discretion, either to replace, within their normal delivery time frames, the part of the delivery that is the subject of the complaint or to reimburse the contractually agreed price of the disputed goods, excluding any damages and reimbursements of any costs or fees.
Art. 57. Whatever the consequences of a defective delivery, the Buyer shall under no circumstances be entitled to claim compensation as a result. The Seller shall not be liable for indirect damages suffered by the Buyer, including loss of profit.
Art. 58. These terms and conditions of sale as well as all contracts concluded with the Seller shall be governed by Belgian law, excluding the United Nations Convention of 11 April 1980 (the Vienna Convention) on Contracts for the International Sale of Goods. All disputes relating to the interpretation of these general terms and conditions of sale or relating to the fulfilment, interpretation and termination of all contracts concluded with the Seller shall be subject to the sole jurisdiction of the courts of Antwerp. The Seller nevertheless reserves the right to bring any dispute with the Buyer before the courts of the Buyer’s place of residence/business.