General terms and conditions of Blue Dragon Online Marketing B.V. (register number 51400995), Blue Dragon Strategy & Concept B.V. (register number 16045407), Blue Dragon Digital Technology B.V. (register number 17115639) and Blue Dragon Holding B.V. (register number 77067444) mentioned here Blue Dragon a private limited company.
Article 1 Scope
1. These general terms and conditions (the ‘general conditions’) apply to all quotations and offers issued by, and all contracts entered into by the customer with, Blue Dragon.
2. These general conditions also apply to all subsequent offers, contracts and order confirmations issued and/or concluded with the same customer, regardless of whether they are related to or follow on from pre-existing quotations or contracts.
3. Changes or additions to these general conditions should always be agreed upon in writing or confirmed by Blue Dragon and only apply to that individual case where there is a deviation for that occasion and for which that change or addition has been made or agreed upon.
Article 2 Quotations
1. All offers made by Blue Dragon are without any obligation, unless there is any expressly agreed period for acceptance, or unless the offer does not stipulate a period for acceptance but it appears from the offer that the offer remains valid unless and until it is revoked by Blue Dragon.
2. The drawings, designs and other information provided by or on behalf of Blue Dragon with the offer remain the property of Blue Dragon and must be returned by the customer immediately upon first request if no contract is agreed. The customer may not keep copies in any format. Blue Dragon has at all times exclusive rights, including all intellectual property rights, with regard to these drawings, designs and other information.
3. These documents provided by or on behalf of Blue Dragon, may not in any way be reproduced, disclosed or made available to third parties in whole or in part, or used in any other way without the express written consent of Blue Dragon.
4. Any drawings, models, designs, samples, calculations, prospectuses and the like, supplied by the customer, will be kept by Blue Dragon for six months after they have been supplied by the customer.
5. The customer is responsible for the data, specifications, calculations and the like it supplies, and fully indemnifies Blue Dragon for errors and/or loss resulting therefrom.
6. The customer indemnifies Blue Dragon in particular against all claims of third parties against Blue Dragon based on infringements of intellectual property rights resulting from the data, models, images etc. supplied by the customer.
Article 3 Price and price adjustment
1. Unless otherwise stated in an offer or contract, all agreed prices are exclusive of VAT, and also exclusive of media costs such as media budget paid links, subscriptions, software, placement costs and hosting, unless expressly agreed otherwise in writing. Unless expressly agreed otherwise, all prices are quoted in Euros.
The exceeding of prices as a result of the sales conditions of Blue Dragon’s suppliers and third parties hired by Blue Dragon, such as the percentages of excess or under supply customary in the printing industry, or media expenditure, shall be deemed to be known to customer and shall not be considered as exceeding an estimate, even if these costs have not been included in a separate
2. Blue Dragon is not obliged to honour a contract at a stated price that is based on an obvious printing or typesetting error or that is clearly not in line with the market.
3. Blue Dragon is expressly authorized to unilaterally change the price, conditions and the content of a quotation or concluded contract, without the customer being authorized to revoke the contract, if market circumstances (foreseen or unforeseen) or cost-increasing circumstances justify this. In the event of any such changes, Blue Dragon is not liable to compensate the customer.
4. Deviations in the contract up to a maximum of 5% of, for example, the price or delivery time will, in principle, be considered reasonable, unless the customer demonstrates that it cannot reasonably be expected to accept such deviations.
5. Additional work will be charged separately by Blue Dragon. ‘Additional work’ means all work not included in the initial, original contract.
6. If the prices have not yet been determined before or at the conclusion of the contract, the prices to be calculated by Blue Dragon and payable by the customer are the prices mentioned in the price lists of Blue Dragon for that year or the prices valid on the day of delivery.
Article 4 Performance of the contract
1. The contract entered into with Blue Dragon and the obligations thereunder are qualified as a best endeavours obligation, unless the obligation by its nature is clearly an obligation to achieve a result. Blue Dragon shall determine the way in which the contract is to be performed.
2. Only Blue Dragon contracts with the customer, even if it is expressly the tacit intention that the work will be carried out by a certain person (the effect of Book 7 Article 404 of the Dutch Civil Code is expressly excluded). Therefore, these conditions may also be invoked by any natural or legal person who is directly or indirectly involved in any way in the performance of the work or service by Blue Dragon.
3. The (de facto) directors of Blue Dragon as well as its employees are not personally bound or liable (the effect of Book 7 Article 407 paragraph 2 of the Dutch Civil Code is therefore expressly excluded).
4. Blue Dragon has the right to have certain activities carried out by third parties or to be assisted by third parties, after notifying the customer. The customer indemnifies Blue Dragon for liability for loss resulting from mistakes or defects made by those third parties or any other basis. Blue Dragon expressly excludes the operation of Book 6 Article 76 of the Dutch Civil Code.
5. The terms of the agreement between the parties are indicative and will be pursued by Blue Dragon to the best of its knowledge and ability. However, the terms will never be a deadline and the customer should first give Blue Dragon notice of default if the intended (delivery) dates are not met.
6. If Blue Dragon is unable to perform the agreed contract because the customer fails to provide the necessary cooperation or because another party on behalf of the customer fails to cooperate or prevents the performance of the agreed contract, the customer is responsible and in default and Blue Dragon has the right to compensation of the costs incurred and loss suffered, including loss for termination. In order to avoid discussions about the nature and extent of this loss, Blue Dragon stipulates that this loss will be fixed at least half of the agreed contract price, without prejudice to the right to full compensation.
7. If Blue Dragon cannot perform the agreed contract within the agreed target periods or at the agreed location because the customer fails to provide the necessary cooperation or a third party prevents this, this will be at the expense and risk of the customer and the customer is liable for the loss suffered by Blue Dragon. Here too the loss suffered by Blue Dragon will be set at half of the agreed contract price, without prejudice to the right to full compensation.
Article 5 Payment
1. The payment term is 14 days after invoice date, to be effectively received on the account of Blue Dragon, unless agreed otherwise in writing.
2. All payments must be made without any deduction or setoff in the manner to be determined by Blue Dragon. The right of the customer to suspend or set off is expressly excluded by Blue Dragon.
3. Blue Dragon has the right to suspend the performance of any contract, until it has received full payment of already expired invoices.
4. Blue Dragon reserves the right, even after partial delivery of goods and/or services, to demand financial guarantees and securities from the customer.
5. Blue Dragon is also entitled to invoice after partial delivery.
6. The prices charged and all invoices sent are immediately due and payable at all times, without any summons or notice of default being required, in the event that the customer is declared bankrupt, applies for or obtains provisional suspension of payments, a request by the customer (natural person) for the application of the Statutory Debt Rescheduling Scheme is granted by the court, the customer loses the power of disposal over their assets or parts thereof as a result of seizure, placement under guardianship or otherwise, as well as in the event that the customer breaches any of their obligations, regardless of whether these arise from this contract or from another contract or from the law.
7. Without any summons or notice of default being required, the customer is legally in default by the mere expiry of the agreed term of payment.
8. If the term of payment is exceeded, the customer is liable for default interest of 1.5% per month from the day of default, whereby part of a month shall be counted as a whole month. At the end of each year, the amount on which interest is calculated shall be increased by the interest due for that year.
9. If the customer fails to pay any part of the outstanding invoices after a summons or reminder, there will be an immediately payable penalty of 15% - calculated over the total outstanding amount - or a fixed penalty amount of €750.00 if the outstanding amount does not exceed €10,000.00, without prejudice to the right to specific performance and compensation under the law.
10. Insofar as this penalty cannot be imposed, the customer must at least reimburse Blue Dragon for its extrajudicial costs in the amount of the actual costs payable to the collection agency engaged by Blue Dragon in the case of extrajudicial collection.
11. Blue Dragon is also entitled in case of legal proceedings to charge all actual costs incurred by its legal representative to the customer, regardless of the fixed compensation system created by law.
Article 6 Liability
1. Blue Dragon excludes any form of liability for loss to the customer until the customer has completely satisfied their payment obligation.
2. Blue Dragon is not liable for loss suffered by the customer, including any liability to compensate for termination or tortious act, unless the customer demonstrates that the loss is the result of a deliberate or reckless act, of Blue Dragon or its management and other executives.
3. In no event shall Blue Dragon be liable for consequential loss, such as, in any event, the liability for loss arising out of termination or tort, loss of profits, loss of turnover or business interruption of any kind.
4. Blue Dragon is also not liable for loss or depreciation of any goods and / or the website and / or the content of the customer, for which the customer bears the responsibility and liability at all times.
5. Should Blue Dragon nevertheless be held liable, the amount of loss to be compensated to the customer will always be limited to the cover provided by Blue Dragon’s insurance and on the condition that Blue Dragon’s insurer in the case in question also pays out, increased by the excess.
6. If the insurer (or policy) of Blue Dragon does not provide cover and/or does not pay out, then the total and maximum liability of Blue Dragon for loss and costs is in all cases limited to the amount of the invoice(s) (excluding VAT) pertaining to the assignment where the loss occurred, with a maximum of €10,000.00.
7. In all cases in which Blue Dragon seeks to rely on the above provisions in court, any employees of Blue Dragon who have been held liable can also rely on this article as if its provisions had been stipulated by the employees of Blue Dragon themselves.
8. The liability for third parties hired by Blue Dragon in the sense of Book 6 Article 76 of the Dutch Civil Code is expressly excluded. In case of the involvement of a third party, the customer must insure themself accordingly.
9. The customer indemnifies Blue Dragon for possible claims by third parties who suffer loss in connection with the performance of the contract, regardless of the cause.
10. Claims for loss must be brought by the customer before the court with jurisdiction
according to these general conditions within one year after liability has been asserted. After that period, the right to compensation lapses.
11. Blue Dragon is not liable for loss that is the result of digital supply of data by Blue Dragon or customer via e-mail or the internet. This exclusion of liability expressly, but not exclusively, includes the risk of contamination, infestation, corruption or interception of data by viruses, Trojan horses, worms, botnets, hacking, phreaking, password cracking, fraud or otherwise influencing data by a third party.
Article 7 Force majeure
1. Force majeure on the part of Blue Dragon shall be deemed to arise if Blue Dragon is prevented from performing its contractual obligations or the preparation thereof as a result of war or threat of war, civil war, insurrection, terrorism, molestation, fire, water damage, epidemic or pandemic, organised and unorganised strike, company occupancy, exclusion, seizure, import and export obstructions, government measures, defects to or failures in the supply or supply of energy, defects to or a defective infrastructure (hardware and software) of the customer and furthermore all other causes that have arisen through no fault or risk of Blue Dragon.
2. In case of force majeure, the (delivery) periods will be extended with the period during which Blue Dragon is prevented by the force majeure from fulfilling its obligations.
3. If due to force majeure the delivery is delayed more than 1 month, both Blue Dragon and the customer are authorized to terminate the contract - for the nonexecuted part - taking into account the stipulation in paragraph 4.
4. If force majeure occurs when the contract has already been partly performed, the customer will retain the part of the goods already delivered or unable to revoke the part of the contract already performed and pay the purchase price due in both cases, regardless of whether the customer demonstrates that the part of the goods already delivered can no longer be used effectively as a result of the incomplete performance.
5. Neither Blue Dragon nor the customer will be liable to the other for loss in the event of termination of the contract as a result of force majeure.
Article 8 Intellectual property
1. Unless otherwise agreed, all intellectual and/or industrial property rights in respect of products and/or services manufactured by Blue Dragon or resulting therefrom, belong exclusively to Blue Dragon. Insofar as such rights can only be obtained by filing or registration, only Blue Dragon is authorized to do so. The supply of products and/or services to the customer does not imply any transfer of intellectual and/or industrial property rights.
2. Unless otherwise agreed upon, the working drawings, illustrations, designs, design sketches and other materials or (electronic) files created by Blue Dragon in the context of the order remain the property of Blue Dragon.
3. If the customer fully complies with their obligations to Blue Dragon, the customer obtains a non-exclusive and non-transferable right of use for the products and/ or services supplied by Blue Dragon for the agreed objectives and for the agreed duration. In the event of such use, the customer shall strictly adhere to the conditions laid down in these general conditions or otherwise imposed on the
customer. Without explicit written permission of Blue Dragon, products and/or other goods and/or rights arising from or related to the supplied products and/or services may not be reproduced, transferred and/or made public.
4. Unless the work does not so lend itself, Blue Dragon is at all times entitled to mention its name on or with the products and/or services it manufactures or to have the name removed and the customer is not allowed to publish and/ or reproduce these products and/or services without prior permission without mentioning the name of Blue Dragon or any other entitled party.
5. If Blue Dragon utilizes information and/or goods and/or works on which intellectual and/or industrial property rights can rest, which information and/ or goods and/or works have been made available to Blue Dragon by the customer, it is assumed that the customer has been informed about the rights of use of this information and/or goods and/or works. The customer indemnifies Blue Dragon for all possible third-party claims concerning intellectual and/or industrial property rights as well as for possible portrait rights.
6. Blue Dragon makes every effort to ensure that the products and/or services it supplies do not violate any third-party industrial or intellectual property rights. In the unlikely event that it is established that the products and/or services supplied by Blue Dragon to the customer breach such third-party rights, Blue Dragon will compensate the loss thereby suffered by the customer, up to an amount not exceeding the contract sum excluding VAT that Blue Dragon has received from the customer for the supplied products and/or services and provided that Blue Dragon is in breach of its best endeavours obligation. In respect of a contract for a term of at least 6 months, Blue Dragon’s liability is further limited to the contract sum due over the last 6 months excluding VAT. In any case the liability is limited to the amount paid out by Blue Dragon’s liability insurance, increased by the
applicable excess. However, the customer loses any claim for compensation if they have not informed Blue Dragon in a timely and complete manner about any said third-party claims, so that Blue Dragon is able to properly defend its rights in this matter.
Article 9 Termination/cancellation of contract
1. If a contract with Blue Dragon is a continuing contract for an indefinite period of time, it may be terminated at any time with a notice period of 3 months (counting from the last working day of the month) without any obligation to pay compensation.
2. If the customer is in breach of any obligation to Blue Dragon under the contract, related contract, or previous or subsequent contract, or if Blue Dragon suspects that the customer will not comply with any obligation under the contract in the future, the claim is immediately due and payable and Blue Dragon has the right to claim:
a) Payment in advance or adequate additional compensation for payment or to demand immediate payment upon delivery for payment obligations from all current and future contracts;
b) To suspend deliveries (as well as the creation or processing of obligations agreed upon for the performance), without prejudice to Blue Dragon’s right to demand security for payment at the same or any future time. Once the customer has complied with their payment obligation, Blue Dragon will have the time available for the production or processing, taking into account existing possibilities in Blue Dragon’s company and/or in the company of Blue Dragon’s suppliers;
c) To terminate the said contract in its entirety or to the extent that it has not been performed, without any obligation to pay damages;
d) To terminate additional or all current contracts in respect of which the customer is not in default, in whole or in relation to the unperformed part.
3. Without prejudice to Blue Dragon’s right to full compensation, including loss of profit, Blue Dragon is entitled to compensation for termination of the contract due to the breach by the customer of their obligations or in case of cancellation of an order/contract by the customer. The amount of compensation depends on the time that has elapsed between the conclusion of the contract and the moment when the contract is terminated by Blue Dragon or cancelled by the customer in proportion to the agreed time for the performance of the contract.
4. The compensation will be determined on a flat-rate basis in accordance with the following graduated scale:
a) Termination/cancellation 8 weeks before the start of deliveries: 20% of the amount of the order/quotation;
b) Termination/cancellation 4 weeks before the start of deliveries: 40% of the amount of the order/quotation;
c) Termination/cancellation 2 weeks before the start of deliveries: 60% of the amount of the order/quotation;
d) Termination/cancellation after the agreed time of delivery 100% of the amount of the order/quotation.
5. The graduated scale (article 9.4) also applies if Blue Dragon agrees to a request by the customer for cancellation or termination.
Article 10 Complaints
1. The customer must report complaints of any kind to Blue Dragon in writing, stating the reasons. A complaint, regardless of what it relates to, does not give the customer the right to suspend or set off their obligations under the contract to Blue Dragon.
2. The customer must immediately report visible complaints to Blue Dragon after delivery or during the performance of the work, failing which, the goods delivered or work carried out will be regarded as correct and accepted.
3. The customer’s right to complain lapses anyway if the customer has used, processed or otherwise (tacitly) accepted the products delivered by Blue Dragon.
4. In the case of non-visible defects, the customer must complain in writing within 5 working days after discovery or after the defect should reasonably have been discovered. If this period expires without complying with the formalities, the work delivered or completed will be regarded as correct and accepted.
5. All other complaints must be reported by the customer to Blue Dragon within the agreed payment term, failing which the right to complain expires.
Article 11 Retention of title
1. All goods delivered by Blue Dragon to the customer remain the property of Blue Dragon until the customer has paid all that it owes to Blue Dragon for whatever reason, plus interest and costs and all other claims.
2. If the customer creates a new item from the goods supplied by Blue Dragon subject to retention of title, the customer acts on behalf of Blue Dragon during such creation and will keep the item for Blue Dragon. The customer only becomes owner at the moment that the retention of title lapses as a result of all claims having been paid. The customer undertakes to insure at all times the goods supplied subject to retention of title against fire, explosion and water damage as well as against theft and to make the relevant insurance policy available for inspection upon first request.
3. Insofar as Blue Dragon has other claims against the customer and Blue Dragon has supplied products and/or services to the customer without retention of title, the customer will create a non-possessory pledge on these goods as security for compliance with their obligations to Blue Dragon, and Blue Dragon accepts this non-possessory pledge. On first request of Blue Dragon, the customer will sign a deed to establish the pledge. The customer must ensure that they are authorized to pledge the goods and that the goods, apart from the rights of Blue Dragon, are not pledged and/or subject to limited rights.
4. If the customer resells the relevant products, Blue Dragon may require the customer to create a pledge in favour of Blue Dragon on their claim against the buyer resulting from that sale.
5. The customer may not pledge the products and/or services from Blue Dragon to third parties or in any way relinquish, transfer or restrict the legal and/or factual power of disposition to them to the detriment of Blue Dragon. The goods are not transferable.
6. All costs associated with the establishment and performance of all necessary acts in connection with the retention of title, as well as any other securities, are payable by the customer.
Article 12 Joint and several liability
1. If the contract(s) is (are) made by Blue Dragon with or for the benefit of (legal) persons in addition to the customer, then all those (legal) persons are jointly and severally liable for all obligations arising under the contract and/or resulting contract(s).
Article 13 Personnel
1. The customer is not allowed to employee employees of Blue Dragon or otherwise engage them to work for the customer in any other way, directly or indirectly, both during the contractual relationship between the customer and Blue Dragon, and for a period of 1 year after the end of the contract, without the prior written permission of Blue Dragon. Employees of Blue Dragon are - in this context - persons who are employed by Blue Dragon or who were employed by Blue Dragon at the time of the performance of the contract.
Article 14 Applicable law and choice of forum
1. All legal relationships between Blue Dragon and the customer are governed exclusively by Dutch law. All disputes, without exception, which arise at any time under the parties’ relationship governed by these general conditions, will, as far as they exceed the jurisdiction of the subdistrict court, be subject to the judgment of the district court of Oost-Brabant, sitting in ‘s-Hertogenbosch, with the proviso that Blue Dragon is at all times authorized to bring the dispute to the competent court in the jurisdiction where the customer is located.