de creatieve directie B.V.
General Terms and Conditions
de creatieve directie B.V. is a private limited company under Dutch law, located in Amsterdam.
These General Terms and Conditions apply to all activities performed or to be performed by or on behalf of de creatieve directie and all legal relationships between de creatieve directie B.V. and third parties.
The following definitions apply in these terms and conditions:
1. Client: the person who commissioned the job to de creatieve directie.
2. Agency: de creatieve directie B.V..
3. Job: the request of the client to the agency to perform activities for payment.
4. Activities: everything that the agency, produces and/or undertakes and/or lets produce and/or lets undertake for the client, within the framework of the job provided by the client for the purpose of communication interests.
5. Quotation: the specification of the activities to be performed.
6. Budget: the costs associated with the activities as described in the budget.
7. If these General Terms and Conditions speak of “in writing”, a message by email is regarded to be equivalent.
Applicability of the General Terms and Conditions
8. The agency has an office in Amsterdam and is registered in the trade register under number 51445271. The General Terms and Conditions of the agency, that include a limitation of liability, apply to all activities and all legal relationships with third parties. The General Terms and Conditions of the agency also apply to all its parent company(s) and subsidiary(s). These General Terms and Conditions have been filed with the Chamber of Commerce in Amsterdam and can be shared upon request.
9. These General Terms and Conditions apply to all quotations, agreements and deliveries of the agency, unless they have been explicitly declared non-applicable in whole or in part in writing by the agency.
10. The client acknowledges the applicability of these General Terms and Conditions simply by commissioning the job, of whatever nature, to the agency, unless these conditions have explicitly been rejected in writing by the client. A mere reference to the client’s own terms and conditions, or a standard clause on their stationery or in their own terms and conditions providing for the exclusive effect of their own terms and conditions will not suffice.
11. If deviations have been agreed upon regarding certain matters provided for by these terms and conditions, these General Terms and Conditions will continue to govern the remainder of this agreement. Agreed deviations never apply to more than one job, unless again confirmed in writing.
12. Conditions, clauses, etc. agreed with agents, representatives or other intermediaries that deviate from these conditions are only binding on the agency if they have been expressly confirmed by the agency in writing.
13. The agency accepts no liability towards its client for compliance with its legal obligations and the consequences thereof.
Execution of job(s)
14. All jobs are only performed on the following conditions, unless explicitly agreed otherwise in writing.
15. Agreements with employees of the agency do not bind the agency, unless the agency has confirmed this in writing.
16. During the execution of the job, and for a period of 6 (six) months after the end of the job, the client may not in any way enter into an employment agreement with any employees assigned to the client by or on behalf of the agency, subject to a non-negotiable penalty of € 2,000 for each violation for each week that the breach continues.
17. Unless expressly agreed otherwise, all quotations are non-binding.
18. Unless stated otherwise, all prices quoted will be exclusive of VAT, travel and other expenses and third-party fees.
19. If requested, the agency will submit a quotation to the client for approval prior to commencement of the activities. Insofar as unavoidable deviations in relation to the quotation occur during the execution of the job, the agency will inform the client of this at the earliest possible stage.
20. If a job is quoted on basis of subsequent calculation, the quoted prices serve only as an indicative price; the actual hours worked by the agency and the costs actually incurred by the agency will be charged to the client.
21. Exceedances of quotations of up to 10% are accepted by the client as a budgetary risk and need not be reported as such.
22. Exceedances of quotations resulting from sales conditions of suppliers and other third parties engaged by the agency, will not be deemed an exceedance, even if these conditions are not included separately in an quotation, because these conditions are deemed not only to be known to the client, but also to be part of the present general terms and conditions from the beginning – insofar as they are in accordance with these general terms and conditions.
Prices, deliveries and payments
23. All prices are exclusive of VAT and any shipping, courier, transport and postage fees, unless explicitly stated otherwise.
24. All deliveries will be deemed to have been made at the location of the agency’s office.
25. All payments must be made to an account indicated by the agency.
Jobs and changes
26. A job is accepted by the agency either by confirming the acceptance to the client in writing or by commencing the execution of the activities.
27. The client is bound to the agency by and starting from the issuing of the job.
28. The agency is bound by, and starting from, the acceptance of the job.
29. If no job is commissioned after the submitting of a quotation, the agency reserves the right to invoice all or part of the design, dtp and account costs incurred.
30. Changes to be made after the job has already been commissioned, must be communicated by the client to the agency in time and in writing. If these changes are communicated in person or by telephone, the risk of the implementation of the changes will be for the client. The changes to the job are effective through, and starting from, their acceptance by the agency.
31. Any changes to the original job, of whatever nature, communicated either verbally or in writing by or on behalf of the client, resulting in costs higher than were foreseeable at the time of the quotation and/or job confirmation, will be invoiced to the client in addition to the original fee.
32. Changes to the order could lead to the agreed delivery time being exceeded by the agency in circumstances beyond their responsibility.
33. Two correction rounds are included in the price. Corrections that are subsequently specified by the client are always performed on the basis of subsequent calculation.
34. If the client cancels the job in whole or in part, they are obliged to reimburse to the agency all costs reasonably incurred in connection with the execution of this job (costs of design, drawing, calculation, preparation, storage, commission, etc.). If the agency so desires, the client is also obliged to compensate for loss of profit, as well as for other damages resulting from the cancellation in question.
35. The agency reserves the right to carry out more activities than set out in the written job or in the job confirmation, and to invoice such activities to the client, if these activities are in the interest of the client and/or for proper fulfilment of the job. The client will be notified of the performance of such additional activities as soon as possible.
36. Jobs that result in repetitive work, whether or not of a slightly different nature, to be performed on a regular basis will be deemed to be open-ended orders.
37. The agency undertakes to carry out the commissioned activities to the best of its knowledge and ability, but the agency accepts no liability whatsoever for failure to meet the client’s intended outcome.
Engaging third parties for executive activities
38. If, in the opinion of the agency, it is reasonably necessary for the proper fulfilment of a job, or if it results from the nature of a job, the agency is entitled to instruct third parties, on behalf of and for the account of the client, to deliver or otherwise make available goods and/or provide services.
39. If the client themselves handles the execution of the job (production, lithography and all other external matters), the agency is not responsible or liable for the final result. The liability of the agency ends the moment the basic or reproduction materials are handed over.
40. If, third parties need to be engaged with regard to the job commissioned to the agency, the agency will, if and insofar as possible, consult with the client in advance and will exercise due care in the selection of these third-party contractors. The agency is not liable for errors and/or shortcomings of such a third party in the execution of its services. The agency has the right to accept, any limitation of liability stipulated by any such third party on behalf of the client.
Invoicing and payment term
41. The agency ensures timely invoicing per project. Partial or pre-invoicing is always possible, unless expressly excluded in writing. However, exclusion of the right of partial or pre-invoicing may never occur for the costs mentioned in the following paragraphs.
42. Without prejudice to the provisions in the following paragraphs, payment of invoices for the agency must take place no later than 30 days after the invoice date, and no later than 14 days for charged costs of third parties by the agency, to the client.
43. Any fees for the production of commercials and (ether) media fees must have been received by the agency from the client prior to the time the agency is due to pay these costs.
44. Postage and other distribution costs for mail advertising must have been received by the agency from the client prior to shipping/distribution.
45. Should the client fail to meet their payment obligation to the agency within the agreed period, they owe statutory commercial interest on the invoice amount from the day on which the invoice should have been paid, with no prior summons and notice of default required.
46. Invoices from the agency must be paid within thirty days (30) days after the invoice date. Invoices from the agency related to purchases made by third parties, which are charged to the client, must be paid within fourteen (14) days of the invoice date. In the absence of timely payment, the agency has the right to charge statutory interest on the unpaid (charged to the client) amount, from the thirty-first (31st) day for invoices from the agency, and from the fifteenth (15th) day for charged costs after the invoice date, as well as that the client will owe 15% collection costs and the agency will be authorised to take collection measures.
Suspension, postponement and dissolution
47. The agency is entitled to suspend and/or cease the further execution of the job if the client does not observe the payment conditions and/or fails to provide the requested bank guarantee.
48. If the client fails to strictly perform any of their obligations under an agreement with the agency, the agency will be entitled to suspend the performance of all of its obligations towards the client, and even to terminate all agreements with the client, either in full or in part, without notice of default and/or judicial intervention being required, while retaining their right to compensation. The amount owed to the agency by the client will become immediately due and payable.
49. In addition, the agency is entitled to dissolve the agreements between them and the client, insofar as these have not yet been executed, without judicial intervention, if the client does not timely or not properly comply with the obligations arising for them from any agreement concluded with the agency, as well as in the event of bankruptcy or suspension of payment of the client or in case of suspension of activities or liquidation of the client’s company. The consequences of suspension, postponement and/or dissolution are entirely at the expense and risk of the client.
50. Suspension, postponement and/or dissolution do not affect the payment obligations for the activities already performed. In addition, the agency will then be entitled to claim compensation from the client for damages, costs and interest caused by the default of the client and the dissolution of the agreement, including the loss of income incurred by the agency.
Delivery times/exceedance of delivery times
51. The specified delivery times are approximates. Unless explicitly agreed otherwise in writing, the agency will not give any guarantee regarding the agreed delivery times and non-timely delivery will not entitle the client to compensation, dissolution of the agreement or non-compliance with any obligation they have towards the agency.
52. Agreed terms apply only if and insofar that the material that is to be processed, as well as the data required for the execution of the order, are delivered to the agency at the agreed time and that the work to be carried out by the client themselves or the work to be carried out by third parties on account of the client has been done on time. If, as a result of a delay in the delivery or execution of work by the client, the job can be fulfilled only by making additional arrangements, such as additional transport, overtime, or express delivery, the agency will be entitled to do so without prior consultation with the client, and the costs so incurred will be for the client’s account.
53. In the event of a delay in the delivery by the client, the agency will be entitled to change the date of fulfilment of the order. The client will be responsible for checking the timely delivery of the materials that are to be processed and the data required for the fulfilment of the order.
Duty of care
54. In carrying out the activities for the client, the agency will observe the greatest possible care with regard to the interests of the client.
55. In particular, the agency – assuming that clear agreements have been made with regard to the intended purpose – ensures the correct audio and/or visual design of the communication expressions and other materials, as well as their compliance with the relevant statutory regulations, rules of conduct, normative values and guidelines, insofar as these are or should be reasonably known to them.
56. The agency undertakes to handle and safeguard the clients confidential information, data, documents, sketches and designs made available by the client and the materials entrusted to them, such as slides, audio and visual materials, documents and other materials to be reproduced and/or recorded but will not be liable for their loss as a result of fire, theft or breakage, etc., insofar as this is not covered by insurance. Where valuable or irreplaceable unique copies are to be used, the client will insure these at their own expense and risk.
Complaints and proof
57. Complaints about visible defects must be submitted in writing immediately after the agency has delivered or submitted their work to the client, or within eight (8) days after the publication of the advertising medium.
58. Complaints about invisible defects must be submitted in writing within eight (8) days after they could reasonably have been detected.
59. Complaints about invoices must be submitted to the agency in writing within 8 days of the date of sending the invoice. The payment period will not be suspended as a result of such complaints.
60. After expiry of the aforementioned periods, complaints will no longer be processed and the client’s rights in this case will have expired, unless the period in a particular case reasonably needs extension.
61. Unless proof is given to the contrary, the data recorded in the agency’s administration will be decisive.
Liability and indemnification of third parties
62. The client indemnifies the agency against all damage claims of third parties regarding the accuracy of the de facto content of communication expressions produced on behalf of the client and other materials, which have been submitted to them. None of this of course alters the agency’s duty of care under article 57 et seq. of these conditions.
63. Rights to action and other powers of the client or a third party towards the agency, relating to an agreement, will expire within one year after the moment the client should reasonably have known of the existence of these rights or powers.
64. Any liability of the agency for work performed, or to be performed by or on behalf of the agency, or otherwise related to a job given to the agency, is limited to the amount that can be claimed in the relevant case under the liability insurance(s) taken out by the agency, plus the amount of the deductible applicable under the terms of such insurance(s) that is borne by the agency.
65. If the applicable liability insurance of the agency does not pay out for whatever reason, the liability of the agency is limited to the total net fee charged to the client within the agreement, with a maximum of € 10,000, minus by the costs paid by the agency on behalf of third parties.
66. Except in the event of wilful misconduct or gross negligence on the part of the agency, the client will indemnify the agency and hold the agency harmless from and against all claims, demands and actions at any time made or brought by any third party against the agency and which directly or indirectly result from, or relate to, the activities or services performed or to be performed by the agency for the client or otherwise relate to the job given by the 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.
67. The agency is not liable for damage, loss or destruction of objects, materials or data that have been made available to them by or on behalf of the client.
68. In the event that the agency is prevented from performing the agreed activities in whole or in part due to force majeure, the agency has the right to suspend the performance of the agreement without judicial intervention or to consider the agreement partially or completely dissolved, such at its discretion, without them being obligated to pay any compensation or guarantee.
69. Force majeure in these general terms and conditions means: a strike, lock-out, fire, machine breakdown and other industrial disturbances, either at the agency or at its suppliers of goods and services, transport failures and other events beyond its control, such as war, blockades, riots, epidemics, devaluation, floods caused by storms, as well as sudden increases in import duties and excise duties and/or taxes, delays or failures of delivery by suppliers, failure to obtain necessary permits and other government measures.
70. Unless expressly agreed in writing otherwise, intellectual property rights, including copyright and other rights related to intellectual property rights, such as personality rights, (hereafter referred to as “intellectual property rights”) that are related to or arise from the activities of the agency on behalf of the client, remain vested in the agency and the client only obtains a right of use of these intellectual property rights for use as described in the job, under the condition that all invoices of the agency have been paid by the client. The client is not entitled to adjust, repeat or multiply the commissioned work without the explicit written permission of the agency.
71. Unless explicitly agreed in writing otherwise, the right of use applies for the agreed duration of the campaign and in the absence of such an agreement for the duration of the relationship between client and agency.
72. If and insofar as agreements have been made about the transfer of intellectual property rights to the client, such transfer shall take place under the condition precedent of payment of all invoices sent by the agency.
73. Insofar as third parties are involved in the execution of the activities, it is possible that the intellectual property rights resulting from these activities remain with these third parties. At the reasonable request of the client, the agency will consult with these third parties to see if full transfer of these intellectual property rights is desired and/or possible. The client is aware that, if stock photographs or illustrations are used for the execution of the job, the intellectual property rights will remain with the stock agency or the agency. The client is also aware that the use of portraits of models is subject to restrictions. The client is never permitted to use the material on which the stock photos, illustrations or models are depicted for anything other than that for which rights have been obtained within the framework of the job. In case of reuse, the client must always contact the agency.
74. By giving an order to publish or reproduce an object or expression made available by or on behalf of the client, the client declares that no rights of third parties are violated and indemnifies the agency against the claims of third parties on this matter. Unless expressly agreed in writing otherwise, carrying out an investigation into conflicting intellectual property rights and/or other rights of third parties is not part of the job.
75. The agency is entitled, unless explicitly agreed otherwise, to inform BUMA/STEMRA, or other entitled parties or their representatives, of the name of the client, the title of material reproduced for the client and the numbers in which the reproduction took place.
76. All designs, texts, descriptions, reports, advice, artistic performances, lithographs, slides, films, media, mediums and other (publicity) materials (hereinafter: ‘the materials’), which the agency develops or commissions for or relating to a job, are handled with the utmost care and stored by the agency for two full calendar years.
77. At the end of this period, the agency may request the client to communicate whether they would like the materials to be retained by the agency any longer.
78. The agency will hand over the materials at the request of the client, provided that the relevant invoices have been paid, or at least reasonable security has been provided for this. If materials have been provided to the client within the framework of the job, the agency retains the ownership of all materials supplied by them until the client has fully met all their payment obligations.
79. The agency will treat all confidential information about the client, such as their strategies and knowledge about their products, with the utmost care and only make it available to the agency’s employees, suppliers or media, if and insofar this is necessary for the execution of the job. The agency will never, for the duration of this agreement and after the end of it, disclose the information to third parties for inspection or use, or use it for third parties without the client’s permission.
Nature and duration of the agreement
80. Unless explicitly agreed in writing otherwise, or if this results from the nature of the job, the cooperation is entered into for an indefinite period, on the understanding that both parties can terminate the relationship, by the first day of a calendar month, by a registered letter, with due observance of a term of at least six months.
Settlement of relationship
81. In all cases where the relationship between the client and the agency ends in accordance with any provision of these conditions or through the intervention of the courts, these conditions continue to govern the legal relationship between the parties, insofar as this is necessary for the settlement of the relationship.
82. The legal relationship between the agency and the client or other third party is governed by and subject to Dutch law.
83. All disputes arising from or related to (I) the activities performed by or on behalf of the agency or assigned to it and/or (II) the legal relationship with the client or other third party, are subject to the exclusive jurisdiction of, and will be decided exclusively by, the competent court in Amsterdam, without prejudice to the right of appeal and further appeal.
84. The terms and conditions included in these General Terms and Conditions are also stipulated for and on behalf of the directors and shareholders of the agency, the directors of those shareholders and all persons who are or were employed by the agency, either as a partner, employee, adviser or third party contractor in any capacity. These General Terms and Conditions will therefore also apply to these legal relationships.