direct online data Cruquiusweg 109-B 1019 AG Amsterdam +31 (0)20 7 220 770 info@dcd.nl www.dcd.nl CoC: 51445271 VAT: NL850019576B01 IBAN: NL18RABO0152079726 BIC: RABONL2U de creatieve directie B.V. General Terms and Conditions 1. de creatieve directie B.V. is a company according to Dutch law, established in Amsterdam. 2. These General Terms and Conditions apply to all work carried out by or to be carried out by or on behalf of de creatieve directie and on all legal relationships of de creatieve directie B.V. with third parties. Definitions 3. Client shall be taken to mean every person, or legal entity, who has concluded, or wishes to conclude, a contract with de creatieve directie B.V. 4. The Agency shall be taken to mean de creatieve directie B.V. 5. Contract shall be taken to mean the request of Client to The Agency to carry out paid work. 6. Work shall be taken to mean all The Agency does or undertakes or let s do or undertake on behalf of Client in the framework of the assigned contract with regard to communication interests. 7. Quotation shall be taken to mean the specification of the work to be carried out. 8. Budget shall be taken to mean the costs connected to the work as described in the quotation. 9. Whenever in this General Terms and Conditions is spoken about written, an email message will be regarded to be equivalent. Applicability General Terms and Conditions 10. The Agency has its offices in Amsterdam and is registered in the trade register under number 51445271. The General Terms and Conditions of The Agency, in which a limitation of liability is included, apply to all work and legal relationships with third parties. The General Terms and Conditions also apply to all its parent company(ies) and subsidiary(ies). These General Terms and Conditions are deposited at the Chamber of Commerce Amsterdam and will be sent upon request. 11. These General Terms and Conditions apply to all quotations, contracts and supplies of The Agency, unless all or part of the General Terms and Conditions are being condisered not applicable by The Agency. 12. Client constitutes acknowledgement of these General Terms and Conditions by the mere fact of assignment of the order of any kind to The Agency, unless these General Terms and Conditions are explicitly rejected by Client in writing. A mere reference by Client to his own General Terms or Conditions or a standard clause on his stationery or an article in his own general terms and conditions with as a content the exclusive functionality of these own conditions, will not considered to be sufficient. 13. If deviations are agreed with regard to certain issues, regulated in these General Terms and Conditions, the present General Terms and Conditions shall otherwise remain applicable to this Contract. Agreed deviations will never be applicable to more than one contract, unless each time again agreed in writing. 14. Conditions, terms, etc. with agents, representatives or other intermediaries, deviating from these General Terms and Conditions, only bind The Agency if explicitly confirmed in writing by The Agency. Legal Obligations 15. The Agency accepts no responsibility towards Client for complying properly to her legal obligations and the consequences thereof. Execution Contract(s) 16. All contracts will only be executed under the following conditions, unless explicitly agreed otherwise in writing. 17. The Agency is not bound by agreements with employees of The Agency, unless The Agency has confirmed this in writing. Non-solicitation Clause 18. Client is not permitted either during execution of the Contract nor during a period of six (6) months after finalization of the Contract to engage into any employment contract with personnel employed by or on behalf of The Agency for Client, and is susceptible to a penalty of 2.000,- for each violation per week the violation lasts.
Quotations 19. All quotations are not binding, unless explicitly agreed otherwise. 20. The prices mentioned are excluding VAT, travel- and other expenses and costs of third parties, unless stated otherwise. 21. Upon request The Agency will submit a quotation to Client for consent prior to commencing the work. As far as inevitable deviations in relation to the Quotion occur during executing of the Contract, The Agency will inform Client about this as early as possible. 22. If a contract is being quoted on the basis of subsequent costing, the prices quoted only serve as an indicative price; the actual hours worked and the actual costs made will be charged to Client. 23. Excess of quotations up to 10% will be accepted by Client als budget risk and does not need to be reported as such. 24. Excess of quotations as a result of sales conditions of suppliers and other third parties engaged by The Agency, are not considered to be excess, likewise not if these conditions are not included separately in a quotation, since these conditions not only are supposed to be known to Client, but also from the start as far as according to them - form part of the present General Terms and Conditions. Prices, deliveries and payments 25. All prices are excluding VAT and possible shipping-, courier-, transportation- and postage costs, unless explicitly mentioned otherwise. 26. All deliveries are supposed to be done at the location of The Agency. 27. All payments must be made to an account designated by The Agency. Contracts and amendments 28. A contract will be accepted by The Agency by either confirming the acceptance in writing to Client or by starting with carrying out the work. 29. Client is bound to The Agency by and as of ordering. 30. The Agency is bound by and as of ordering of the Contract. 31. In case of absence of a contract, The Agency reserves the right to charge the costs of design, DTP and account costs or part thereof. 32. The Agency needs to be informed timely and in writing by Client about amendments in the Contract, after awarding thereof. In the event amendments are being reported verbally or by phone, the risk shall be borne by Client. The amendments in the Contract are effective by and as of acceptance thereof by The Agency. 33. Amendments of any kind to the original Contract in writing or verbally by or on behalf of Client, resulting in higher costs than were foreseeable in the quotation and/or order confirmation, will be charged extra to Client. 34. Amendments to the Contract could lead to the agreed delivery time being exceeded by The Agency in circumstances beyond her responsibility. 35. Two correction rounds are included in the price. Corrections reported afterwards by Client, will always be performed on the basis of subsequent calculation. 36. In the event Client cancels the Contract either in full or in part, he shall be obliged to pay The Agency all reasonable costs (costs of design, drawing, calculation, preparation, storage, provision, etc.) incurred for the purpose of carrying out this Contract. If the Agency so desires, Client is also required to pay compensation for loss of profits, as well as all damage, arising from the conscious cancellation. 37. The Agency reserves the right to carry out and charge Client more work than stated in the written Contract or in the order confirmation if these activities are in the interest of Client and/or for proper execution of the Contract. Client will be informed as soon as possible about the execution of these supplemental activities. 38. Orders that cause frequently recurring activities to be carried out, even when small changes exist, are considered to be given for an undetermined period. 39. The Agency undertakes to carry out the assigned activities to the best of her knowledge and ability. However, The Agency does not accept any liabilty for failing to meet Client s goals. Involving third parties for executing tasks 40. Should something, in the judgement of The Agency, be reasonably necessary for a good execution of an order, or follows from the nature of the Contract, The Agency is entitled to give orders to third parties, at the expense and risk of Client, for the delivery of or otherwise making available of goods and/or services. 41. In the event Client himself ensures execution (production, lithography and all other external issues), The Agency will not be held responsible or liable for the final result. The Agency s liability ends at the moment of transfer of the basic c.q. reproduction materials. 42. In the event third parties need to be engaged with regard to the work assigned to The Agency, where possible The Agency will always consult Client, and The Agency shall exercise due care in selecting such third parties. The Agency shall not be liable for errors or failures on the part of third parties in the execution of hus services. On behalf of Client The Agency is entitled to accept any limitation of liability such third party might have obtained. Invoicing and term of payment 43. The Agency ensures timely invoicing per project. Sub- of pre-invoicing is possible at all times, unless such is excluded explicitly in writing. However, exclusion of the right of sub- or pre-invoicing can never concern costs mentioned in the paragraphs below. 44. Notwithstanding anything specified in the following paragraphs, payment should be effected not later than 30 days after the invoice date for invoices of The Agency, and not later than 14 days for charged costs of third parties by the Agency to Client. 45. Commercial production- and (ether)media costs have to be received by The Agency from Client prior to the time The Agency is due to pay these costs. 46. Postal and other distribution charges for direct mail items will have to be received by The Agency from Client prior to dispatching/distribution. 47. Should Client not comply with his payment obligations to The Agency within the agreed payment period, without a requirement for prior summation and in default declaration - interest is due at the legal rate on the invoice amount with effect from the due day of payment of the invoice.
48. The declarations of The Agency will have to be paid within thirty (30) days after the invoice date. The declarations of The Agency relating to purchase of third parties which are charged on to Client will have to be paid within fourteen (14) days after the invoice date. In default of timely payment, The Agency has the right to charge interest on the unpaid amount whether or not charged on - at the legal rate from the thirtyfirst (31st) day for invoices from The Agency and from the fifteenth (15th) day for charged on costs after the invoice date. Furthermore, 15% extrajudicial costs are due by Client and The Agency has the right to take extrajudicial collection measures. Postponement, suspension and dissolvement 49. In the event Client fails to comply with the payment conditions and/or fails to provide the desired bank guarantee, The Agency is entitled to postpone or suspend the further execution of the Contract. 50. In the event Client fails to comply with any obligation arising from a contract with The Agency, The Agency is entitled to suspend the performance of all her obligations towards Client and even to dissolve all agreements with Client either in full or in part, without notice of default and/or judicial intervention being required, while retaining her right to compensation. All amounts owed by Client will be immediately due. 51. Furthermore, in the event Client fails to timely or properly comply with any obligation derived from the agreement entered into with The Agency, or in case of bankruptcy of or suspension of payments by Client, or by suspension of the activities of or the liquidation of his business, The Agency is entitled to dissolve the contracts between her and Client, in as far these have not been executed yet, without judicial intervention. 52. Postponement, suspension and dissolvement shall not defer Client s obligation to pay for work already carried out. Furthermore, The Agency shall also be entitled to demand compensation from Client for damages and costs and interests, caused by default of Client and dissolvement of the Contract, including The Agency s loss of income. Delivery times / exceeding the delivery term 53. The specified delivery times are approximates. Unless explicitly stated otherwise in writing, The Agency gives no warranty with respect to the delivery times, and late delivery does not entitle Client to any damages, dissolvement of the Contract or suspend fulfilment of his obligations in relation to The Agency. 54. The periods agreed upon shall apply only if and to the extent that the materials to be processed, as well as the data required for fulfillment of the Contract, are provided to The Agency at the agreed time, and the work to be executed by Client himself or by third parties at Client s expense has been executed on time. If as a result of untimely delivery/ execution of work by Client, the Contract can be fulfilled only by making additional arrangements, such as additional transport, overtime, or express delivery, The Agency shall be entitled to do so withour prior negotiations with Client and for Client s account. 55. In the event of untimely delivery by Client, The agency is entitled to set a new deadline for fulfillment of the Contract. Checking on timely delivery of all materials to be processed, as well as information, is the responsibility of Client. Duty of care 56. The Agency shall observe the greatest possible care with regard to the interest of Client in executing the work for Client. 57. In particular The Agency shall ensure assuming that clear agreements are made with regard to the intended purpose present day audio and/or visual design of communication-expressions and other materials, as well as proper compliance with legal obligations, principles, normative values and guidelines, in so far as they became known or reasonably should have become known. 58. The Agency undertakes to handle and safeguard Client s confidential information, documents, drawings and designs, as well as to handle and safeguard and keep materials and data provided by Client, such as slides, audio and visual materials, documents and other materials to be reproduced and/or materials to be included, but The Agency accepts no liability for loss due to fire, theft or damage not covered by the insurance. Where valuable or irreplaceable uniqe copies are to be used, Client shall insure these at his own expense and risk. Claims, complaints and proof 59. Claims with regard to visible defects must be reported in writing by Client immediately after delivery or presentation of the work carried out by The Agency, or within eight (8) days after publication of the advertising medium. 60. Claims on invisible deficits must be submitted in writing within eight (8) days after the defects could reasonably have been observed. 61. Complaints concerning invoices must be submitted to The Agency in writing within eight (8) days of dispatch. The term of payment shall not be suspended as a result of such a complaint. 62. After the expiration of any one of the following periods of time, complaints shall no longer be processed and Client forfeits his right of objection, unless this period of time in certain cases should be reasonably prolonged. 63. Unless proven otherwise, the information from The Agency s records will be definitive. Liability and indemnity third parties 64. Client undertakes to indemnify The Agency against any claims by third parties on account of the accuracy of the factual execution of the content of produced communication-expressions and other materials on behalf of Client or which are supplied to Client. This would not prejudice the duty of care of The Agency ex article 57 and further of these General Terms and Conditions.
Exoneration 65. Rights of action and other powers of Client or a third party of whatever nature and for whatever reason against The Agency in connection with a contract, shall always expire after one year from the moment Client or the third party became aware, or could reasonably have been aware of the existence of such rights and powers. 66. Any liability of The Agency for work carried out or to be carried out by or on behalf of The Agency, or otherwise relating to an assignment given to The Agency, is limited to the amount that can be claimed under The Agency s professional liability insurance policy(ies) relating to the case in question, with the addition of the amount of the own risk, which in the case in question under the conditions of this insurance(s) shall be borne by The Agency. 67. If The Agency s liability insurer declines to pay out for whatever reason, then The Agency s liability will be limited to the total net fee charged to Client in the Contract with a maximum of 10.000,- less the costs paid by The Agency to third parties. 68. Except in the case of an intentional act or gross negligence by The Agency, Client indemnifies The Agency for and against, and Client compensates in respect of all debts, claims and judicial claims at any time made or brought by any third party against The Agency and which directly or indirectly result or relate to the work or services performed or to be performed by The Agency for Client, or otherwise relate to the assignment given by Client to The Agency, including without limitation any damages, costs and expenses incurred by The Agency in connection with any such claim, demand or action. 69. The Agency shall not be liable for any damage to, loss or destruction of articles, material or information that has been made available to her by or on behalf of Client. Force majeure 70. In the event that The Agency is prevented from carrying out the agreed work, wholly or partially, by circumstances beyond her control, she has the right, without judicial intervention, in her choice either to suspend the performance of the Contract, or to declare that the Contract is terminated, without being liable to pay any compensation. 71. In these General Terms and Conditions force majeure means: strikes, lock/outs, fire, machinery breakdowns and other business disruptions, whether it be either on the premises of The Agency or on the premises of the suppliers of goods and services, transport disruptions and other events beyond the control of The Agency, such as war, blockade, riot, epidemic, devaluation, flooding from storms, as well as sudden increase of import duties and/or excise duties and/or taxes, delay or failure of delivery by suppliers, inability to obtain the required permits and other government measures. Intellectual property 72. Copyrights and intellectual property, stemming from work to be carried out, belong to The Agency after payment of all underlying invoices unless otherwise agreed upon by prior written agreement. 73. As long as Client fails to pay declarations from The Agency, The Agency reserves the property of all items, documents, designs originating from and/or produced by the Agency relating to all her services on the basis of agreements with Client, including the rights of Intellectual Property thereon. 74. At the moment the relationship between Client and The Agency ends, the rights will be transferred to Client against payment of 150% of the design or creative costs. 75. In as far rights of intellectual property of third parties are involved, with regard to involving these third parties The Agency will discuss with them at the request of Client whether full transfer is desired or possible. 76. By giving an order to publish or reproduce items protected as intellectual property by the Copyright Act or any other legislation, made available by or on behalf of Client himself, Client declares that there is no breach of legal stipulations or the protected rights of third parties, and indemnifies The Agency with respect to third parties or, as the case may be, for the direct and indirect consequences, financial and otherwise, arising from the publication or reproduction. 77. For the duration of the relationship Client is not entitled to amend, repeat or reproduce the commissioned product without explicit written permission of The Agency. 78. Unless explicitly agreed otherwise, the performance of investigation into patents, brandrights, drawings or modelrights, copyright and portray rights of third parties shall not be part of the Contract. 79. If performance of the work requires the use of models, stock images or illustrations, the image right will always remain with the model or modeling agency, the stock agency or agency. Client is never allowed to use the image material more often than for which the rights have been obtained in the framework of the Contract. In case of re-use, Client must at all times contact The Agency. 80. Unless explicitly agreed otherwise, The Agency is entitled to inform BUMA/STEMRA or other copyright or logo operators about the name of Client, the title of materials reproduced for Client and the numbers in which this reproduction has occurred.
Materials 81. All designs, texts, descriptions, reports, recommendations, artistic achievements, lithographs, slides, films and other publicity materials (hereinafter referred to as the materials ), developed by or on behalf of the Agency for or in connection to an order, will be handled and stored with the utmost care during two full calender years. 82. At the expiry date of this period, The Agency can request Client to inform The Agency if it is appreciated to store the materials any longer. 83. At the request of Client, The Agency will hand over the materials, provided the relevant invoices are paid, or at least reasonable securities have been given. 84. At the end of the cooperation on first request The Agency will hand over the materials still held by The Agency to Client, without withholding a copy, transcript, summary or any other part, provided Client has paid all invoices that are not disputed, or at least has given reasonable securities. Secrecy 85. The Agency will handle all confidential information about Client, such as his strategies and knowledge about his products, with the utmost care, and will only make them available to her employees, suppliers or media, if and in as far this is required for the execution of the work. During the contract period The Agency will never make available or disclose the information to third parties without permission of Client. Nature and duration of the Contract 86. Unless explicitly agreed otherwise in writing, or if and insofar this results from the nature of the Contract, the cooperation shall be for an unlimited period of time, on the understanding that either party may terminate the relationship by giving at least six months notice by registered letter as per the first of a calendar month. Settlement relationship 87. All designs, reproduction materials, texts, descriptions, artistic achievements, films and other publicity materials that, resultating from the relationship, are in possession of The Agency at the end of the relationship, shall on first request be transferred to Client at cost (all potential costs for making digital and other materials transferrable), after all that Client is indebted to her, for whatever reason, has been settled. In such a case The Agency will without delay issue an assignment to any media to transfer any remaining contracted media space/time to Client or to a third party designated by the latter. 88. In all cases where the relationship between Client and The Agency ends, pursuant any provision set forth in these General Terms and Conditions or through any judicial intervention, these General Terms and Conditions shall exclusively govern the legal relationship between parties insofar as this is required to handle the settlement of the relationship. Competent court 89. The legal relationship between The Agency and Client or other third party shall be governed by, and shall be construed in accordance with Dutch law. 90. All disputes that arise from or are connected with (I) the work performed by or on behalf of or commissioned to The Agency and/or (II) the legal relationship with Client or other third party, are subject to the exclusive jurisdiction of, and shall be exclusively decided by the competent court in Amsterdam, without prejudice to the right of appeal and appeal to the Supreme Court. 91. The terms and conditions, set forth in these General Terms and Conditions, are also made and agreed for and on behalf of managers and shareholders of The Agency, managers of these shareholders, and all persons working for or who have worked for The Agency, either as partner, employee, advisor, third party accepting the assignment, or in any other capacity. These General Terms and Conditions shall also apply to these legal relationships.