GENERAL TERMS AND CONDITIONS OF PURCHASE
DIGITAL ART CENTER Ltd
Article 1 – Applicability
1.1 These terms and conditions of purchase apply to all offers made by third parties (hereinafter referred to as “the other party”) to Digital Art Center BV and to all agreements with the other party, whereby Digital Art Center BV purchases, leases, rents or borrows goods from the other party, or instructs the other party to perform services or have services performed,
unless the parties have expressly agreed otherwise in writing.
Article 2 – Formation of contracts
2.1 All offers made by the other party must be in writing and are binding, on the understanding that they remain valid for at least two (2) weeks after Digital Art Center BV has received the offer in question.
If the offer does not result in an agreement with Digital Art Center BV, any costs incurred by the other party in making the offer shall be borne by the other party.
2.2 A contract is only concluded once Digital Art Center BV has issued a written order to the other party, whether or not in response to an offer from the other party, followed by the other party’s written confirmation.
2.3 The other party is obliged to provide Digital Art Center BV, without delay, with (i) all data, information and documents requested by Digital Art Center BV, and (ii) all other data, information and documents that may be relevant to the assessment of any offer made by the other party, the preparation of the agreement or the performance of the agreement, in a complete and accurate manner. Digital Art Center BV shall, on this basis,
assess the other party’s offer and, if appropriate, enter into an agreement. If the aforementioned data, information and documents prove to have been provided by the other party in an incomplete or incorrect manner, the other party shall be in default without any further notice of default, and Digital Art Center BV shall be entitled – at its discretion – to terminate the agreement with immediate effect or to suspend its own obligations.
2.4 If the other party uses its own general terms and conditions, these shall not be binding on Digital Art Center BV unless Digital Art Center BV has accepted them in writing.
Article 3 – Delivery
3.1 The delivery of goods and services must take place no later than the agreed date, time and place or within the agreed period; in the event of any deviation from this, the other party shall be in default without any further notice of default being required. The other party shall be liable for any loss or damage resulting from any failure on its part.
3.2 Digital Art Center BV is not obliged to carry out a further inspection of the goods delivered upon receipt or when they are put into use.
3.3 If Digital Art Center BV purchases goods from the other party, title to those goods shall pass to Digital Art Center BV upon delivery.
Article 4 – Licences, standards, guidelines and instructions
4.1 The other party warrants to Digital Art Center BV that the other party and the goods or services to be supplied by the other party fully comply with all statutory requirements and other standards and guidelines.
4.2 The other party warrants that it holds all the licences required for the performance of the work commissioned by Digital Art Center BV. Upon request, the other party shall immediately allow Digital Art Center BV to inspect the said licences and all relevant (and any additional) licence conditions and/or provide Digital Art Center BV with a copy thereof.
4.3 The other party shall indemnify Digital Art Center BV against all fines imposed by the authorities in connection with, and all damage resulting from, any failure to comply, or failure to comply properly, with any statutory provision, licence condition or requirement imposed by the authorities, or any other standard or guideline. General Terms and Conditions of Purchase of Digital Art Center BV 3
4.4 The other party is obliged to Digital Art Center BV to follow all reasonable instructions from
Digital Art Center BV must, in connection with the performance of the agreement, without delay
follow.
Article 5 – Warranty, maintenance and liability
5.1 The other party warrants to Digital Art Center BV that the goods delivered or services provided are free from defects and shall be liable to Digital Art Center BV for all direct and indirect damage that may result from such defects. Without prejudice to any other rights accruing to Digital Art Center BV, the other party shall remedy any defect in the goods delivered without delay upon Digital Art Center BV’s first request.
5.2 The other party shall indemnify Digital Art Center BV against all claims by third parties that may arise, directly or indirectly, from any defect in the goods supplied or services provided. The other party shall also indemnify Digital Art Center BV against all claims by third parties who believe they have any rights in respect of the goods delivered or services provided, and the other party warrants to Digital Art Center BV that it may use the goods delivered or services provided without any hindrance.
5.3 Upon first request by Digital Art Center BV, the other party shall carry out maintenance on the goods supplied, to the extent, for the duration and for a fee customary in the relevant industry.
5.4 Digital Art Center BV shall be liable for theft, damage and loss of the goods supplied, provided that such goods have been sold to and delivered by the other party to Digital Art Center BV and accepted by Digital Art Center BV, unless the theft, damage or loss was caused by the other party’s negligence or wilful misconduct.
5.5 The other party shall be liable for theft, damage and loss of the goods delivered insofar as these are hired, leased or borrowed from the other party by Digital Art Center BV, if and as soon as these are made available to Digital Art CenterBV, unless the theft, damage or loss occurred through the fault or wilful misconduct of Digital Art Center BV. General Terms and Conditions of Purchase Digital Art Center BV 4
5.6 Insofar as Digital Art Center BV may be liable to the other party on any grounds whatsoever for any loss suffered by the other party, such liability shall at all times be limited to the invoice value of the service agreed between the parties and, insofar as the invoice value of this service may be higher, such liability shall at all times be limited to the amount that is payable under the statutory liability insurance
would be paid out by Digital Art Center BV. Upon the other party’s first written request, Digital Art Center BV shall provide the other party with a copy of the insurance policy and the terms and conditions.
5.7 The other party shall be liable for any damage, regardless of the cause, occurring during or in connection with the event to which the agreed service relates, caused by the other party’s employees or property to (i) visitors to the event/exhibition, or employees and property of Digital Art Center BV, or other parties contracting with Digital Art Center BV, and (ii) the venue (and its fixtures and fittings) of the event and all property located at the venue in connection with the event / exhibition. The other party is obliged to take out adequate insurance against such damage. Upon first written request from Digital Art Center BV, the other party shall provide Digital Art Center BV with a copy of the insurance policy and its terms and conditions.
5.8 The other party shall indemnify Digital Art Center BV against all claims by third parties in respect of any damage for which the other party is liable pursuant to the above.
5.9 With regard to the parties’ claims arising from the agreement, or any other claims relating to the other party’s performance, the records of Digital Art Center BV shall be conclusive, unless the other party provides conclusive evidence to the contrary.
Article 6 – Subcontracting, amendments and additional work
6.1 The other party is not entitled to subcontract the performance of the agreement, in whole or in part, to a third party, unless Digital Art Center BV has given its prior written consent.
6.2 If the other party subcontracts the performance of the agreement to a third party, the other party shall remain liable to Digital Art Center BV for the proper performance of the agreement. General Terms and Conditions of Purchase of Digital Art Center BV 5
6.3 Any changes and/or additional work must always be approved in writing in advance by Digital Art Center BV.
Article 7 – Payment
7.1 Payment by Digital Art Center BV shall only be due once delivery has taken place and the other party has duly fulfilled its obligations, unless otherwise expressly agreed in writing.
Article 8 – Force majeure
8.1 Digital Art Center BV shall not be obliged to accept the performance stipulated by the other party, nor shall it be bound to fulfil its other obligations, if Digital Art Center BV cancels the event or exhibition in whole or in part as a result of force majeure on the part of Digital Art Center BV, including in any event one or more of the following circumstances: incapacity for work on the part of, or failure by the artist(s) to fulfil their obligations, failure by (other) counterparties of Digital Art Center BV to fulfil their obligations, government measures, transport difficulties, fire, strike, work stoppage, pandemic, closure of the event venue, inaccessibility or unavailability of the event venue, civil unrest, war conditions, national mourning following the death of a member of the royal family or government, extreme weather conditions and all other circumstances beyond the control of Digital Art Center
due to circumstances beyond our control.
8.2 In the event of force majeure, Digital Art Center BV shall be entitled, without recourse to the courts, to suspend performance of the agreement, or to regard the agreement as terminated with immediate effect, or to terminate it, without Digital Art Center BV being liable for any compensation for damages or otherwise. If and to the extent that Digital Art Center BV has already made any payment to the other party, the other party shall
refund this to Digital Art Center BV, except insofar as this refund relates to any work already performed by the other party. General Terms and Conditions of Purchase of Digital Art Center BV 6
8.3 The other party shall only be entitled to invoke force majeure on its part if it fails to fulfil its obligations and this failure is not attributable to its own fault, nor is it for its account under the law, in accordance with generally accepted practice, or pursuant to the provisions below. The parties expressly agree that the following circumstances do not constitute force majeure on the part of the other party:
• failure to perform, or failure to perform on time, by any of the other party’s suppliers or other contractors;
• staff shortages, strikes, sick leave, production disruptions and fire at the other party’s premises;
• the unsuitability or defectiveness of any aids, means of transport or other items used by the other party in the performance of the contract;
• the conduct of persons engaged by the other party in the performance of the contract;
• transport difficulties, traffic obstructions, or delays in transport using the means of transport chosen by the other party;
• loss of or damage to goods during transport by or on behalf of the other party;
• government measures, including bans on the import, export and transit of goods to be supplied by the other party;
• failure to comply with government requirements, or licensing requirements, or other standards and guidelines by the other party.
8.4 If the other party invokes force majeure against Digital Art Center BV on any grounds, whether justified or not, Digital Art Center BV shall be entitled to regard the agreement as terminated with immediate effect without recourse to the courts, or at least to terminate it without Digital Art Center BV being liable for any compensation for loss or otherwise. If and insofar as Digital Art Center BV has already made any payment to
If the other party has made any payment, the other party shall refund this to Digital Art Center BV, even if such payment relates to any work already performed by the other party. General Terms and Conditions of Purchase of Digital Art Center BV 7
Article 9 – Intellectual property
9.1 Insofar as the performance of the agreement gives rise to any copyright or other intellectual property right, and such rights are included in the remuneration agreed between the parties, the other party hereby assigns these rights to Digital Art Center BV, and Digital Art Center BV hereby accepts such assignment. Insofar as further cooperation from the other party or further formalities are required in respect of the aforementioned transfer, the other party shall provide such cooperation on pain of forfeiting a penalty of €10,000 payable directly to Digital Art Center BV for each instance of non-compliance.
Article 10 – Confidentiality
10.1 Each party is bound to maintain strict confidentiality regarding all data, information and documents of a confidential nature which it has received from the other party.
Article 11 – Notice of default
11.1 Digital Art Center BV shall only be deemed to be in default of any obligation towards the other party if it fails to respond to a written notice of default issued by the other party and a reasonable period of at least fourteen (14) days has been set for compliance.
Article 12 – Partial invalidity
12.1 Should any provision of these general terms and conditions of purchase be held to be invalid, this shall not affect the validity of the remaining provisions of these general terms and conditions of purchase.
Article 13 – Termination of the agreement
13.1 Either party to the agreement shall be entitled, without any further notice of default being required, to terminate the agreement in whole or in part by registered letter with acknowledgement of receipt sent to the other party, or – at its discretion – to suspend the further performance of the agreement, if:General Terms and Conditions of Purchase of Digital Art Center BV 8
a. the other party to the agreement is in default of any obligation under the agreement;
b. the counterparty of any party to the agreement applies for a moratorium on payments;
c. the counterparty of any party to the agreement is declared bankrupt;
d. the counterparty of any party to the agreement is placed under guardianship or dies;
e. the legal entity or other legal form of any party to the agreement is dissolved, or if the business of the other party to the agreement ceases its activities in whole or in part or is transferred to a third party.
Article 14 – Governing law and jurisdiction
14.1 The contract is governed by Dutch law.
14.2 Any disputes between the parties arising out of or in connection with the agreement shall be settled exclusively by the competent court in Rotterdam, to the exclusion of any other court.