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Terms and conditions

 

 

 

GENERAL SALES, DELIVERY AND PAYMENT TERMS AND CONDITIONS OF COULISSE B.V.

Filed with the Chamber of Commerce for the Oost Nederland region under number 06067496

Article 1 Applicability
1.These General Terms and Conditions shall apply to all offers made, quotes issued, orders accepted and agreements concluded by Coulisse B.V. (hereinafter to be referred to as:“Coulisse), including: performing repair and maintenance work, furnishing advice and engaging auxiliary persons and third parties.
2.Insofar as not otherwise expressly agreed in writing by Coulisse and the Customer
(hereinafter to be referred to jointly as: the Parties), any general terms and conditions of the Customer shall not apply, not even in addition to these General Terms and Conditions. Deviations from Coulisse’s General Terms and Conditions may only occur in writing. Such a deviation shall only be valid with respect to the agreement in connection with which it has been agreed on.
3.Coulisse reserves the right to modify these General Terms and Conditions with immediate
effect. These modifications shall only apply to future offers, quotes, agreements and the like,
and written notice of them shall be provided to the Customer.

Article 2 Offer/Quote
1.Unless otherwise agreed in writing, all offers/quotes by Coulisse shall be without obligation, and the quality standards, designs, measurements, colours and other statements accompanying the offer/quote shall only be approximations.
2.Coulisse has three types of divisions through which its  products are  sold  and/or services are  provided: Parts, DIY and DTCH. Parts sells  and provides services in relation to  parts and fabrics for  window decorations. DIY sells window decorations and fabrics in standard sizes. DTCH (own brand) supplies creative, accessible tailored interior concepts in the field of window decorations.
3.All information, such as prices and specifications, included in  Coulisse’s documentation, printed materials and brochures shall be without obligation and subject to change. Subject to the provisions in the first sentence of this paragraph, Coulisse’s offer/quote shall be deemed to completely and correctly reflect the content of the agreement to be concluded.

Article 3 Agreement, order confirmation, and joint and several liability
1.An agreement shall be  deemed to  have been formed at the time Coulisse sends its  order confirmation to the Customer. Coulisse shall not execute the order until  it has received the agreed security referred to in Article 4.3 of these General Terms and Conditions and a copy of the order confirmation signed for approval sent back  by the Customer.
2.Oral  promises by  and/or  supplemental or  other  agreements  with employees, auxiliary persons and/or third parties of Coulisse shall not be binding on Coulisse until  and only to the extent that they have been accepted by Coulisse’s Managing Director(s) with representational authority in a manner described in the first paragraph of this Article.
3.If the agreement is entered into  with at least two  (2) or more Customers, each of them shall be jointly  and severally liable  for full performance. If another party guarantees performance, it must also co-sign the order confirmation for approval.

Article 4 Prices, security and credit Insurance
1.Unless otherwise  agreed  in  writing  by  the  Parties, all  prices, rates  and/or  amounts mentioned by Coulisse shall be  exclusive of turnover tax  (VAT) and/ or other government- imposed levies,  as well  as exclusive of  transport and/or shipment costs. All prices, rates and/or amounts mentioned by Coulisse shall be  stated in euros (EUR) or American dollars (USD).
2.If, after the agreement is concluded but before it is executed in whole or in part, one  or more factors determining the price increase, Coulisse – unless otherwise agreed in writing – shall be entitled to adjust the amount of the price  stipulated for the agreement (hereinafter to be referred to as: “the Principal) accordingly.
3.Before executing the agreement or continuing to  perform it, Coulisse shall always be entitled to  demand security for the performance of the Customer’s payment and other obligations in the form of a deposit or bank guarantee which is adequate in Coulisse’s judgment, even if this means that delivery and/or other time periods are  exceeded. If the Customer does not furnish the security demanded, Coulisse shall be entitled to rescind the agreement in whole or in part without a further notice of default and without judicial intervention, and without prejudice to Coulisse’s right to compensation for all resulting direct and/or indirect damage which it suffers. Coulisse shall not be liable for the damage which the Customer suffers or will suffer because of this.
4.Rescission based on the provisions in this Article shall not discharge the Customer from its obligations to pay for the work performed and/or objects and/or services provided up to the rescission date (hereinafter to be referred to as: “the Items”).

Article 5 Delivery period/Time of delivery
1.The  delivery period stated  by  Coulisse or  the time of  delivery stated  by  Coulisse shall be  approximations and shall not be  a strict deadline. In the event of untimely delivery, Coulisse must  receive a written notice of  default from the  Customer within five  (5) working days  after  the  agreed  delivery date, after  which Coulisse shall be  given   an opportunity  by  the  Customer to   still   provide the  Items  to   the Customer within a reasonable period after the notice of default, without Coulisse’s being obliged to pay  the Customer compensation.
2.The  delivery period shall not  commence  until   receipt of  the  order confirmation and Coulisse is  in  possession of  all  objects, specifications, instructions,  information  and documents to  be  furnished by  the Customer, as well  as the time at which any  agreed security referred to  in Article  4.3 of these General Terms and Conditions is in Coulisse’s possession.
3.If a time period for taking possession has not been agreed on, Coulisse shall be  entitled to  invoice  the Principal if and once the Items have not been taking possession of by the Customer within fourteen (14) days after Coulisse has requested this in writing.

Article 6 Applicability of Incoterms 2000
1.The  provisions of  the Incoterms 2000  shall apply  to  the Items, unless the Parties agree otherwise in writing. Prior  to  the agreement to  be  concluded or at the time it is concluded, the Parties shall record in writing which term and/or  business condition of the Incoterms
2000  shall apply  to the Items.
2.Insofar as the Parties, as referred to in paragraph 1 of this Article:
– state that the provisions of the Incoterms 2000  shall not apply  to the Items or
– have not agreed, prior  to  the agreement to  be  concluded or  at the time it is concluded, which term and/or  business condition of  the Incoterms 2000  shall apply  to  the Items, the provisions of these General Terms and Conditions shall apply.
3.If Coulisse and/or  the Customer do  not have any  obligation under the agreed term and/ or  business condition of  the Incoterms 2000,  the provisions of  these  General Terms and Conditions shall supplement the agreed Incoterm.

Article 7 Providing  the Items  and transfer of risk
1.Unless agreed otherwise in writing, delivery shall occur  ex works, at the time that the Items are  ready for  shipment  at Coulisse’s business premises or at another agreed location and the Customer has been notified, or when the Items have been provided by Coulisse and/or auxiliary persons and/or third parties engaged by it.
2.With respect to the import and/or export of the Items to be provided, the Customer shall be responsible for acting in accordance with the insurance and import and/or export provisions applicable to provision of the Items. If import and export duties are  levied on the Items, these shall be paid  by the Customer, unless the Parties agree otherwise in writing.
3.If the Parties have agreed that  Coulisse shall be  responsible for  transporting the Items, delivery shall occur  at the time the Items are  presented for  delivery not unloaded and in actual fact  at the agreed destination.
4.The Customer must ensure that Coulisse can  reach the destination where the Items must be  delivered through a well-paved, public  road,  without damage occurring to  the transport vehicle of Coulisse or the auxiliary persons and/or third parties engaged by it.
5.The Customer must take possession of the Items at the agreed location and agreed time of delivery or within the stated delivery period. All additional or other costs arising for Coulisse as a result of the Customer’s not or not timely taking possession of the Items shall be paid by the Customer. Coulisse shall then be entitled, but not required, to store the Items at the Customer’s expense and risk.
6.The risk  for  the items delivered shall always pass to  the Customer at the time of delivery referred to in paragraph 1 or 3 of this Article.
7.Coulisse may deliver the Items in consignments and invoice  these deliveries separately.

Article 8 Packaging, shipment and internal  or other transport
1.Coulisse shall determine the manner of packaging and shipment, with the costs and risk to  be  borne by the Customer, unless otherwise agreed. If the Customer desires a special manner of  packaging and/or  shipment, the related additional costs shall be  paid  by  the Customer.
2.As a rule, Coulisse shall not take the packaging back.

Article 9 The Customer’s duty to inspect
1.The  Customer shall inspect the  Items delivered immediately after  delivery as  referred to  in Article  7 of these  General Terms and Conditions. The  Customer shall check both the number and quality of  the Items delivered. If the Customer discovers defects or  flaws in and/or damage to  the Items during this inspection/check, it shall report this in detail and in writing to Coulisse immediately, but in any  event no later than five (5) working days after delivery as referred to in Article 7 of these General Terms and Conditions. In deviation from the foregoing, in the case of DIY products packed in outer boxes, the Customer is obliged to inspect/check the Item as soon as it is removed from the outer box. In such situations the Customer’s right to lodge  complaints concerning both the number and quality of the supplied Items will in any case expire no later than six (6) months after delivery as referred to in Article 7 of these General Terms and Conditions.
2.In acknowledgement of receipt, the Customer shall sign  the form intended for this purpose presented by or on  behalf of Coulisse. The Customer shall mention on  the aforementioned form all immediately visible  damage, including damage to the packaging.
3.If the provisions in paragraphs 1 and 2 of this Article are  not complied with, the Customer shall be deemed to have received the items delivered in perfect and sound condition, and any  right of the Customer to claim  that the Items are  not fit for their purpose shall be extinguished.

Article 10 Return shipments

Return shipments shall only be accepted by Coulisse in consultation, in the condition received by the Customer, preferably in the original packaging, but in any  case packaged properly and with a statement of reasons. Return shipments shall occur  at the Customer’s risk.  Receipt of the return shipments shall not in any  event imply that Coulisse acknowledges the reason given  by the Customer for the return shipments.

Article 11 Deviations
1.Minor   deviations in  quality,  colour,   finish,   hardness, thickness, weight, measurements, state of the symmetrical watermark, quantities and the like shall not provide cause for the Customer to reject the Items.
2.In  the determination whether the content of  the  Items delivered deviates beyond the permissible limits,  an average must be taken from the entire content of the items delivered; the entire content of  the items delivered cannot be  rejected based on  a few  deviating samples.

Article 12 Retention of title/pledge
1.The title  to the Items delivered by Coulisse to the Customer shall not pass to the Customer until   everything owed by  the Customer to  Coulisse, under  any   agreement  whatsoever, however termed and including interest and costs, has been paid  to Coulisse in full.
2.The Customer may not re-deliver, sell, encumber or pledge Items which are  still unpaid, create any restrictive right on these or otherwise dispose of these contrary to the retention of title.
3.If Coulisse’s right of ownership is lost through conversion, accession or merger, the Customer shall create a non-possessory pledge for Coulisse’s benefit on the newly created or newly arising object.
4.The costs related to Coulisse’s exercising its retention of title  shall be charged by Coulisse to the Customer and shall be owed by the Customer.
5.The Customer shall acquire ownership of the Items delivered by Coulisse subject to a pledge for Coulisse’s benefit regarding everything which the Customer owes Coulisse or shall owe  it in the future.

Article 13 Payment
1.Unless otherwise agreed by the Parties in writing, the Customer shall pay  every invoice  sent by  Coulisse within thirty (30)  calendar days after the invoice  date, without any  deduction or  discount. The  Customer shall expressly not have the right to  set off  any  claims against Coulisse.
2.Payment of invoices sent by Coulisse shall be made to Coulisse in the bank account indicated by it. Payment, however termed, to Coulisse’s employees shall not be permissible, shall not result in a discharge vis-à-vis Coulisse and may never constitute a ground for payment or set-off of a debt.
3.The Customer shall be  deemed to  agree to  the invoice,  unless it reports this to  Coulisse in detail and in writing within 10  (ten)  working days. Any complaint shall not discharge the Customer from its payment obligation.
4.In the event of  non-payment, non-timely payment or  incomplete payment of  the amount owed by it, the Customer shall be  in default by operation of law  as from the due date of the invoice concerned and shall owe interest of one percent (1%) per calendar month, with a portion of a month being considered a full month, on the outstanding gross debit or invoice  amount. The interest shall be immediately due and payable without any further notice of default.
5.Coulisse’s entire  claim,  however arising, including that  portion not collected yet   or  not invoiced yet, shall be immediately due and payable in full:
– if the Customer does not pay the amounts owed on time;
– if the Customer files a winding-up petition, a petition for the Customer’s liquidation is filed or if the Customer is put into  liquidation, the Customer requests or obtains a suspension of payments, the statutory debt rescheduling scheme (Debt  Rescheduling (Natural Persons) Act) is declared applicable to it or application thereof is requested;
– if the Customer loses its legal personality, or is dissolved or wound up;
– if and once any  attachment is made against the Customer.
6.All costs arising because of or in relation to extrajudicial or court collection of Coulisse’s claim shall be paid by the Customer. These extrajudicial costs shall amount to fifteen percent (15%) of the gross or other amount to  be  collected, with a minimum of one  hundred euros (EUR
100) per claim  to be collected.
7.Payments made by the Customer shall always be applied first to all interest and costs owed as referred to  in paragraphs 4 and 6 of this Article, and secondly to  the due and payable claims which have been outstanding  the longest, even if the Customer states that the payment relates to a claim  of a later date.

Article 14 Warranty and repairs
1.Unless the Parties have agreed otherwise in  writing, Coulisse will provide a one  (1) year manufacturer’s warranty when the Items supplied are  DIY products and a three (3) year manufacturer’s warranty when the Items supplied are  parts. If the Item consists of motors or  associated accessories (such as a remote control device)  for  the operation of  window decorations (hereinafter: the Motors) then a manufacturer’s warranty of three (3) years will also apply,  unless the Parties have agreed otherwise in writing. The  warranty  period will commence on  the date of delivery within the meaning of Article  7 of these General Terms and Conditions, which means  that  the Item will be  free  of any  defects during the period in question, given  normal use.
2.Insofar as the Items or parts thereof have been procured by Coulisse from third parties, or if work has been performed by third parties, only  the warranty from the third parties concerned shall apply.
3.If the Item consists of DTCH products, then in deviation from the period specified in paragraph
1 of this Article, Coulisse will provide a manufacturer’s warranty of five (5) years as of the date of delivery as referred to in Article 7 of these General Terms and Conditions.
4.Any  complaints under the warranty must be  submitted in  writing by  the Customer to Coulisse within fourteen (14) calendar days after the time the defect, flaw  and/or damage is discovered or reasonably should have been discovered. The  warranty shall only  apply  if the Customer has fulfilled  all its obligations vis-à-vis Coulisse (both financial and otherwise, and under any   agreement  whatsoever). The  warranty shall not cover   minor defects  in quality, colour,  hardness, finish,  measurements, workmanship or the like which are  deemed permissible in the market or are  technically unavoidable.
5.Within fourteen (14) calendar days after the written notification referred to  in paragraph 4 of this Article, the Customer shall submit the Item in question to Coulisse for inspection by returning it (or parts thereof).
6.Coulisse’s warranty obligations shall remain, at the exclusive discretion of  Coulisse, limited to  repairing or replacing, within a reasonable  period, the Items (or portion concerned) free  of charge or refunding the Principal for the Items (or portion concerned), insofar as this has been paid  to  Coulisse, taking into  account the period of use for  the Items (or portion concerned) which has already lapsed. If the Item consists of motors, Coulisse will refund only the Principal.
7.The Item replaced by or on  behalf of Coulisse shall be  the property of the latter and shall, upon request, be returned by the Customer to Coulisse at the expense of the latter. The least expensive form of transportation shall always be selected, in consultation with Coulisse.
8.Work and costs on account of investigation or repair relating to or arising from improper use of the Items shall not be  part of Coulisse’s obligations, shall fall outside the warranty and shall be  charged to  the Customer separately at the rates applicable at the time the work  is performed by Coulisse or the auxiliary persons and/or third parties engaged by it.
9.Coulisse’s warranty obligations will be  invalidated if the Customer has not used, applied or
fitted the Item in accordance with the supplied manual, or has used, applied, fitted or stored the Item in a manner that is incorrect or is otherwise at odds with normal usage. Coulisse’s warranty obligations will also be  invalidated if the Item has been used, applied, fitted or stored in conditions that were excessively damp or under extreme temperatures. If the Item consists of motors, as referred to in paragraph 3 of this Article, the warranty obligations will also be invalidated if the warranty seal has been broken or the motors have been turned on.
10.If, following inspection, it transpires that this warranty has been invoked unjustly, the resulting transportation, inspection or repair costs incurred by Coulisse will be charged to the Customer.

Article 15 Liability of and indemnification by the Customer
1.If the Customer does not,  does not timely or  does not completely fulfil  one  or  more of its   obligations ensuing from the  law,  the agreement and/or  these  General Terms and Conditions, the  Customer must  always compensate  Coulisse for  all  direct and  indirect damage which Coulisse suffers as a result, without any  notice of default being necessary. This  provision shall not affect Coulisse’s right to  institute other claims (for  example, for specific performance) against the Customer and/or take other legal  measures (for example, rescission). Indirect damage shall mean: lost profits and/or  income, incurring production or other losses, the costs of or related to  stoppages or delays, penalties/fines  and losing discounts and/or payments from third parties, all of this in the broadest sense of the word.
2.The Customer shall be  liable  vis-à-vis Coulisse for all direct and indirect damage caused to Coulisse (or its  employees) or to  others besides the Parties, or the property of Coulisse or others besides the Parties (or their employees), which damage is caused by the Customer (or its  employees), by others besides the Parties that are  engaged by the Customer and/or materials used by it or relating to this,  or which damage results from or relates to an unsafe situation in the Customer’s organisation.
3.The  Customer shall indemnify Coulisse against  all claims by  others besides the Parties arising from: – the infringement of  intellectual property  rights, including: patent rights, trademark rights, design rights  and  copyrights to  the  Items, designs, licences, as  well  as  knowhow and information; – the actions of the Customer or its subordinates, or other persons employed by or on behalf of the Customer.

Article 16 Coulisse’s liability
1.Coulisse shall only be liable  for direct damage (to persons and/or property) suffered by the Customer, which direct damage (to persons and/or property) is directly and solely  the result of a breach by Coulisse, on the understanding that only that direct damage (to persons and/ or property) for which Coulisse may claim  a benefit under the insurance taken out  by it shall be eligible for compensation. The following limitations shall also apply: – indirect damage, arising from any  cause whatsoever, shall never be compensated; – direct and/or  indirect damage  arising through  deliberate acts/omissions  or   gross negligence by  the auxiliary persons  or  third parties engaged by  Coulisse shall never be compensated; – the direct damage (to persons and/or property) to be compensated by Coulisse shall never exceed the amount of the Principal for the delivery concerned which has been invoiced and actually paid.
2.For any  right to compensation to arise, the Customer must, after the defects, flaws and/or damage arise, always report this to Coulisse in detail by registered letter, insofar as possible, preceded by  an  email or  a fax,  as soon as reasonably possible, and in  any  event within fourteen (14) working days after the defect, flaw  and/or  damage occurs, and the Customer must do everything which may reasonably be expected of it to limit its damage.

Article 17 Force majeure and Coulisse’s right to suspend performance
1.“Force  majeure” shall mean: a failure to  perform on  Coulisse’s part which is not its  fault nor  for  which it  should otherwise be  held  responsible and which results in  performance of  the agreement being impeded temporarily or  permanently, as well  as,  insofar as not already included under this, measures, laws or decisions of international, national or regional government or other agencies, wars (or threats of war), embargoes, riots,  employee strikes, employee lock-outs, manufacturing and transport problems, fires,  lightning strikes, natural disasters, water damage, power breakdowns, breakdowns in telecommunication and other communication lines, and other serious disruptions in Coulisse’s or its suppliers’ businesses.
2.If it is clear  that the force  majeure situation at Coulisse or one  of the third parties engaged by it will last three (3) months or longer, each of the Parties shall be entitled to terminate the agreement early,  without observing any  notice period. Termination within the meaning of this Article shall occur  by registered letter with return with signature.
3.A situation of force  majeure for Coulisse or one  or more of the auxiliary persons, third parties or suppliers engaged by Coulisse shall suspend its  obligations under the agreement for as long  as the situation lasts. This force  majeure situation shall not suspend the Customer’s obligations under the agreement.
4.Coulisse shall not accept any  liability  for and shall therefore not be  obliged to  compensate direct and/or  indirect damage, costs and/or  losses by  or  at the Customer and/or third parties, which direct and/or indirect damage is caused by or relates in any  way  to the force majeure situation for  Coulisse or  one  of  the auxiliary persons, third parties or  suppliers engaged by it.

Article 18 Rescission of agreement
1.The Customer shall be in default by operation of law if it:
– breaches any obligation under the agreement and/or these General Terms and Conditions;
– is put into  liquidation, files  a winding-up petition or  a petition for  its  liquidation is filed, requests or obtains a suspension of payments or a statutory debt rescheduling scheme (Debt  Rescheduling (Natural Persons)  Act), or  the statutory debt rescheduling scheme (Debt Rescheduling (Natural Persons) Act) is declared applicable to it or application thereof is requested, or transfers its  business operations or control of its  business, loses its  legal personality, or is dissolved or wound up.
2.In  the situation referred to  in  paragraph 1,  Coulisse shall be  entitled to  terminate the agreement in whole or in part unilaterally, without a notice of default or judicial intervention, and  without  Coulisse being obliged to  pay  any   compensation and without prejudice to Coulisse’s other rights, including the right to full compensation of all its direct and/or indirect damage. Rescission of  the agreement within the meaning of  this Article  shall occur   by registered letter with return with signature, insofar as possible, preceded by a fax.
3.If the Customer has died,  been placed under guardianship or  has ceased to  reside in the country where the Customer lives  or is based, Coulisse shall also have the rights stated in the previous paragraph of this Article.
4.If, at the time of rescission referred to  in this Article, the Customer has already received the Items as part of execution of the agreement, these Items and the related payment obligation(s) shall not be  cancelled. Amounts which Coulisse has invoiced before rescission in connection with performance and/or  deliveries already provided in  execution of  the agreement shall continue to be owed in full and shall be immediately due and payable at the time of rescission.

Article 19 Interpretation
1.Coulisse may invoke these  General Terms and Conditions on  any  account whatsoever and regardless of by whomever it is held  liable.
2.If one  or more provisions of the agreement or these General Terms and Conditions turn out not to  be  or no  longer to  be  legally  valid, the other provisions of the agreement and these General Terms and Conditions shall remain in effect. The  provisions which are  not or  no longer legally valid shall be replaced with provisions which are  as consistent as possible with the tenor of the provisions to be replaced.
3.In the event of a conflict with non-mandatory provisions under statutes and/or treaties, the content of these General Terms and Conditions shall prevail.
4.These General Terms and Conditions have been translated into German, Spanish and English. If there is a conflict between the provisions or interpretation of the General Terms and Conditions written in Dutch and the General Terms and Conditions translated into  German, Spanish and English, the Dutch text shall be the point of departure and as such shall prevail over the General Terms and Conditions translated into  German, Spanish and English.
5.The  fact  that  Coulisse does not demand strict compliance with these  General Terms and Conditions in all circumstances shall not in any  way  imply that Coulisse is waiving the right to demand strict compliance in any  case.

Article 20 Applicable law and disputes
1.These General Terms and Conditions and all offers/quotes, orders and agreements to which they apply  shall be governed by Dutch law. The Vienna Sales Convention 1980  (CISG) and the Uniform Law on  the International Sale  of Goods (Act of 15 December 1971,  Bulletin of Acts and Decrees 780) shall not apply  between the Parties.
2.All disputes arising in connection with the offer/quote, order and/or agreement or a later agreement to which these General Terms and Conditions apply  shall exclusively be settled by the competent court in the district where Coulisse’s registered office  is located. In deviation from the provisions in the previous sentence, Coulisse shall be  entitled to  bring  a dispute before the court with jurisdiction under the law or an applicable international treaty.

APPENDIX:

Article 21 Intellectual property rights
1.All intellectual property rights, including patent  rights, trademark  rights, design rights and copyrights, to  the Items, designs, know-how, information and the like shall be  held  solely  by Coulisse or its licensor(s). The Customer shall only obtain the rights of use and rights granted by these General Terms and Conditions or in the agreement. Insofar as the licences of Coulisse’s licensor(s) result in restrictions for the Customer, Coulisse shall inform the Customer.
2.If the Customer instructs Coulisse to copy or reproduce an object protected by any intellectual property right, the Customer hereby states that the aforementioned rights of others besides the Parties shall not be infringed. The Customer shall indemnify Coulisse in and out  of court for  all  consequences,  including claims of  others besides the Parties, both financial and otherwise, ensuing from the copying or reproduction.
3.The Customer is aware that the know-how provided by Coulisse shall include confidential information and trade secrets of Coulisse or its licensor(s). Subject to the provisions in Article 22  of these  General Terms and Conditions, the Customer hereby undertakes to  keep this know-how secret, not to  disclose or provide use of this to  others besides the Parties and only  to  use this for  the purpose for  which it  has been provided to  the Customer. In this connection, “others besides the Parties” shall include all persons working in the Customer’s organisation who  do not necessarily have to use the know-how.
4.The  Customer may not remove or  alter any   intellectual property designation  – in  the broadest sense of the word – from the know-how, including designations concerning the know-how’s confidential nature and confidentiality.
5.If the Customer does not comply with the provisions in paragraphs 3 and 4 of this Article, the Customer shall forfeit an immediately due and payable penalty of at least ten thousand euros (EUR 10,000)  per  violation, without prejudice to  Coulisse’s other rights, including the right to full compensation and/or specific performance.
6.If the Customer is  faced with demands or  claims based on  the allegation that knowhow developed by Coulisse itself infringes an  applicable intellectual property right of someone other than the Parties, the Customer must immediately inform Coulisse in  detail and in writing about the existence and substance of the demand or claim, failing which any liability on  Coulisse’s part vis-à-vis the Customer shall be  extinguished in this regard. It shall be up  to  Coulisse alone whether it shall resolve the matter itself,  including by  entering into any  settlement agreements, or whether it shall let  the Customer do this. In the latter case, Coulisse shall provide support  to  the Customer where possible, in  order to  defend itself against the demand or claim.  All costs which reasonably must be incurred to take care of the existing problem properly shall be paid  by Coulisse if Coulisse decides to resolve the matter itself. If Coulisse lets the Customer resolve the matter, the aforementioned costs shall be paid by the Customer. If Coulisse decides to resolve the demand or claim  itself,  the Customer shall furnish Coulisse with the necessary authorisations and information in that regard, and the Customer shall otherwise fully cooperate as well, so  that Coulisse can  defend itself,  if necessary, in the Customer’s name, against this/these demand(s) or claim(s).
7.If  it  has  been irrevocably established  at  law  that  the know-how developed by  Coulisse itself infringes any  intellectual property right belonging to  a third party, or, if, in Coulisse’s judgment, there is a good chance that such an infringement will occur, Coulisse shall take the Items delivered back from the Customer with a credit for the acquisition costs and deduction of a reasonable use payment, or Coulisse shall ensure that the Customer may continue to use the Items delivered or a functionally equivalent other object without interference, all of this at Coulisse’s discretion. The Customer must then give up  the Items delivered, without Coulisse being obliged to compensate the ensuing damage for the Customer.
8.The  provisions referred to  in  paragraphs 5  and 6  shall not apply   if and insofar as the infringement concerned relates to changes which the Customer has made to the knowhow or has had others besides the Parties make to the know-how.
9.Any liability  of Coulisse because of infringement of the intellectual property rights of others besides the Parties which deviates from the previous paragraphs shall be  excluded. This shall include Coulisse’s liability for infringements caused:
a. by use of products not delivered by Coulisse;
b. in another manner than for which the products were developed or intended.

Article 22  Information carriers, designs, drawings and means of production
1.Know-how shall mean: all materials developed or furnished pursuant to the agreement, such as programs, documentation, analyses, designs, models, drawings, diagrams, work instructions, digital files,  photographic shots,  lithos, small-size  and  large-size montages,  calculations, descriptions, drafts, reports, equipment and other materials, as well as preparatory materials for  this,  in whatever form,  which have been developed by Coulisse in preparing for  and/or executing the agreement and which have been provided to the Customer.
2.“Information carriers shall mean: means of production, such as forms, optical data carriers, magnetic tapes and discs, as well as other objects on which data has been or can be recorded.
3.Subject to  the provisions in Article  21 of these  General Terms and Conditions, Coulisse shall continue to  own   and/or hold  the rights to  the  information carriers produced by,  at the instruction of or on behalf of Coulisse, whether or not in cooperation with the Customer and/or third parties, which are  furnished to the Customer or used solely  in connection with execution of  the  agreement,  including: written  documents,  sound, visual and/or  other  materials, videotapes, CD-ROMs, DVDs, know-how and information, such as, for example, but not limited to,   specifications, data,  instructions,  inspection  requirements,  explanations,  alterations, supplements and materials, including drafts, copies, reproductions and reject copy and the like, even if the Customer pays a fee for the development and/or acquisition of these.
4.Coulisse shall be  entitled to  use the goods referred to  in  paragraph 3  to  execute other agreements besides those between the Parties.
5.Unless the Parties otherwise agree in writing, the goods referred to in paragraph 1 must be given  or returned to Coulisse immediately after execution of the agreement.
6.The Customer hereby warrants that, except for purposes of execution of the agreement, the goods referred to in paragraph 3 of this Article shall only be copied,  reproduced and displayed to  others, disclosed or  otherwise used, or  modified and/or  supplemented  with Coulisse’s prior written permission.
7.The  Customer may solely  and only  use the know-how and information referred to  in this Article in connection with the agreement concluded with Coulisse.
8.The  Customer may not assemble, disassemble, adjust or otherwise change the knowhow and information referred to in this Article for its own  benefit without Coulisse’s prior written permission.
9.If the Customer does not comply with the provisions in paragraphs 5 through 8 of this Article, the Customer shall forfeit an immediately due and payable penalty of at least ten thousand euros (EUR 10,000)  per  violation, without prejudice to  Coulisse’s other rights, including the right to full compensation and/or specific performance.
10.The  Customer shall indemnify Coulisse against  all  claims by  others besides the Parties ensuing from the know-how and information referred to in this Article.
11.Unless otherwise agreed in  writing by  the Parties, Coulisse shall not be  obliged to  save the information carriers with know-how and information referred to  in this Article  for  the Customer’s benefit. If the Parties agree that Coulisse shall save the information carriers, this shall occur  for a period of at most one  (1) year,  without Coulisse guaranteeing suitability for repeated use and it being liable  for the damage which the Customer suffers or will suffer if repeated use is not or no longer possible.

Article 23 The Customer’s licences
1.The Customer hereby warrants that all specifications, data, instructions, inspection requirements, explanations, alterations, supplements, directions and materials furnished by it to Coulisse to execute the agreement shall be correct and complete. If it has been agreed that the Customer shall furnish programs, software, materials or data on information carriers, these must comply with the specifications, data, instructions, inspection requirements, explanations, alterations, supplements, directions and materials necessary to perform the work.
2.The Customer hereby warrants  that  it  owns,  or  at  least temporarily or  permanently possesses, all necessary licences and/or permits for  all materials, data, programs and/or software furnished by the Customer to Coulisse.
3.If the Customer does not or does not fully comply with the provisions in paragraphs 1 and 2 of this Article, Coulisse shall not be liable for the consequences this has for the performance of  Coulisse’s obligations, insofar as those  consequences  were caused by a breach by  the Customer of the provisions in paragraphs 1 and 2 of this Article.
4.Subject to the provisions in the previous paragraph, Coulisse reserves the right to terminate the agreement and demand the Items delivered with immediate effect and without prior notice, including the other rights which Coulisse has, such as the right to full compensation and/or rescission.

Article 24 Confidentiality
1.The Parties hereby mutually warrant that all confidential information exchanged as part of the agreement (including when it was entered into)  shall remain secret, in particular with regard to  designs, know-how, documentation, photographs, drawings, visual and sound recordings, and the like. Information as referred to in the previous sentence of this paragraph shall in any  event be considered confidential if it has been designated as such by one  of the Parties.
2.The Customer may not,  without Coulisse’s prior  written  permission, display, disclose, copy, reproduce or distribute texts and/or images, including, for example, but not limited to, drafts, know-how, documentation, photographs, drawings, and visual and sound  recordings as referred to in paragraph 1 of this Article, to or for others besides the Parties, or cooperate in publications or otherwise utilise these.
3.If the Customer does not comply with the provisions in paragraphs 1 and 2 of this Article, the Customer shall forfeit an immediately due and payable penalty of at least ten thousand euros (EUR 10,000)  per  violation, without prejudice to  Coulisse’s other rights, including the right to full compensation and/or specific performance.

 

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