Terms and conditions

This is an English translation of our Dutch general terms and conditions (Algemene Voorwaarden). In the event of any discrepancy or dispute, the Dutch version is legally binding.

1. de creatieve directie B.V. is a private limited company under Dutch law, established in Amsterdam.
2. These General Terms and Conditions apply to all work performed or to be performed by or on behalf of de creatieve directie and to all legal relationships of de creatieve directie B.V. with third parties.

Definitions
3. Client means the party that has commissioned de creatieve directie B.V. to carry out the work.
4. The agency means de creatieve directie B.V.
5. Assignment means the client’s request to the agency to carry out work in return for payment.
6. Work means everything the agency makes and/or undertakes, or has made and/or undertaken, on behalf of the client within the scope of the assignments issued by the client in the interest of its communication.
7. Quotation means the specification of the work to be carried out.
8. Budget means the costs associated with the work as set out in the quotation.
9. Wherever these general terms and conditions refer to “in writing”, a message sent by email is deemed equivalent.

Applicability of the General Terms and Conditions
10. The agency has its office in Amsterdam and is registered in the trade register under number 51445271. All work and all legal relationships with third parties are subject to the general terms and conditions of the agency, which include a limitation of liability. The general terms and conditions of the agency also apply to all of its parent company(ies) and subsidiary(ies). These general terms and conditions have been filed with the Chamber of Commerce in Amsterdam and will be sent on request.
11. These general terms and conditions apply to all quotations, agreements and deliveries of the agency, unless the agency has expressly declared in writing that the general terms and conditions do not apply, in whole or in part.
12. The client accepts the applicability of these general terms and conditions by the mere fact of issuing an assignment of any kind to the agency, unless these terms and conditions have been expressly rejected in writing by the client. A mere reference by the client to its own general terms and conditions, a standard clause on its letterhead or an article in its own general terms and conditions stating that its own terms apply exclusively, is not sufficient for this purpose.
13. If deviations have been agreed with regard to certain subjects governed by these general terms and conditions, these general terms and conditions shall otherwise continue to apply to that agreement. Agreed deviations never apply to more than one assignment, unless confirmed again in writing each time.
14. Terms, conditions etc. agreed with agents, representatives or other intermediaries that deviate from these terms and conditions are only binding on the agency if they have been expressly confirmed in writing by the agency.

Statutory obligations
15. The agency accepts no liability towards its client for compliance with the client’s statutory obligations and the consequences thereof.

Execution of assignment(s)
16. All assignments are carried out solely under the following conditions, unless expressly agreed otherwise in writing.
17. Agreements made with the agency’s staff are not binding on the agency unless the agency has confirmed them in writing.

Non-solicitation clause
18. The client is not permitted, either during the execution of the assignment or for a period of 6 (six) months after its completion, to enter into an employment contract in any way with staff deployed for the client by or on behalf of the agency, on pain of a fine not subject to mitigation of € 2,000 for each violation per week that the violation continues.

Quotations
19. All quotations are without obligation, unless expressly agreed otherwise.
20. The prices stated are exclusive of VAT, travel and other expenses and third-party costs, unless stated otherwise.
21. On request, the agency will submit a quotation to the client for approval before starting the work. Insofar as unavoidable deviations from the quotation arise during the execution of the assignment, the agency will inform the client of this at the earliest possible stage.
22. If an assignment is quoted on the basis of subsequent calculation, the quoted prices serve only as a guide price; the hours actually worked and the costs actually incurred by the agency will be charged to the client.
23. Budget overruns of up to 10% are accepted by the client as a budget risk and do not need to be reported as such.
24. Overruns of quotations resulting from the terms of sale of suppliers and other third parties engaged by the agency do not count as overruns, even if those terms are not separately included in a quotation, because those terms are deemed not only to be known to the client, but also – insofar as consistent therewith – to form part of these general terms and conditions from the outset.

Prices, deliveries and payments
25. 4.1 All prices are exclusive of VAT and any shipping, courier, transport and postage costs, unless expressly stated otherwise.
26. 4.2 All deliveries are deemed to have taken place at the location where the agency is established.
27. All payments must be made to an account designated by the agency.

Assignments and changes
28. An assignment is accepted by the agency either by confirming acceptance to the client in writing or by commencing the work.
29. The client is bound by and from the moment the assignment is issued to the agency.
30. The agency is bound by and from the moment the assignment is accepted.
31. If an assignment is not forthcoming, the agency reserves the right to charge the design, DTP and account costs incurred, or part thereof.
32. Changes to the assignment after it has been issued must be communicated by the client to the agency in good time and in writing. If changes are communicated verbally or by telephone, the risk lies with the client. Changes to the assignment take effect by and from their acceptance by the agency.
33. Changes to the original assignment, of whatever nature, made in writing or verbally by or on behalf of the client, that entail higher costs than could be expected on the basis of the quotation and/or confirmation of the assignment, will be charged to the client as an extra.
34. Changes to the assignment may result in the agreed delivery time being exceeded by the agency through no fault of its own.
35. Two rounds of corrections are included in the price. Corrections subsequently requested by the client are always carried out on the basis of subsequent calculation.
36. If the client cancels the assignment in whole or in part, the client is obliged to reimburse the agency for all costs reasonably incurred with a view to the execution of this assignment (costs of design, drawing, calculation, preparation, storage, commission, etc.). If the agency so wishes, the client is also obliged to compensate for loss of profit, as well as other damage resulting from the cancellation.

37. The agency reserves the right to carry out more work than stated in the written assignment or in the confirmation of the assignment and to charge this to the client, if this work is in the interest of the client and/or necessary for the proper execution of the assignment. The client will be informed as soon as possible of the execution of this additional work.
38. Assignments that result in regularly recurring work, whether or not slightly different from each other, are deemed to have been given for an indefinite period.
39. The agency undertakes to carry out the work assigned to it to the best of its knowledge and ability, but the agency accepts no liability whatsoever for failure to achieve the goal intended by the client.

Engagement of third parties for executive work
40. If, in the agency’s opinion, this is reasonably necessary for the proper performance of an assignment, or if it follows from the nature of an assignment, the agency is entitled to instruct third parties, on behalf and at the expense of the client, to supply or otherwise make available goods and/or services.
41. If the client itself arranges execution (production, lithography and all other external matters), the agency is not responsible or liable for the final result. The agency’s liability ends at the moment the basic or reproduction materials are handed over.
42. If third parties need to be engaged in connection with the work assigned to the agency, the agency will, if and insofar as possible, consult 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 performance of its services. The agency has the right to accept, on behalf of the client, any limitation of liability that such a party may have stipulated.

Invoicing and payment term
43. The agency ensures timely invoicing per project. Partial or advance invoicing is possible at all times, unless expressly excluded in writing. Exclusion of the right to partial or advance invoicing can, however, never relate to the costs referred to in the following paragraphs.
44. Without prejudice to the provisions of the following paragraphs, payment must be made no later than 30 days after the invoice date for the agency’s invoices and no later than 14 days for third-party costs passed on by the agency to the client.
45. Commercial production and (broadcast) media costs must have been received by the agency from the client before the time at which the agency is obliged to pay these costs.
46. Postage and other distribution costs for direct mail shipments must have been received by the agency from the client before shipment/distribution.
47. If the client fails to meet its payment obligation towards the agency within the agreed term, it owes – without any prior demand or notice of default being required – the statutory commercial interest on the invoice amount from the day on which the invoice should have been paid.
48. The agency’s invoices must be paid within thirty (30) days of the invoice date. The agency’s invoices relating to third-party purchases (re)charged to the client must be paid within fourteen (14) days of the invoice date. In the event of late payment, the agency has the right to charge the statutory interest on the unpaid amount – whether or not recharged – from the thirty-first (31st) day for the agency’s invoices and from the fifteenth (15th) day for recharged costs after the invoice date, the client will owe 15% collection costs and the agency is entitled to take collection measures.

Suspension, termination and dissolution
49. The agency is entitled to suspend or terminate further execution of the assignment if the client does not comply with the payment conditions and/or fails to provide the required bank guarantee.
50. If the client does not strictly fulfil any obligation arising from an agreement with the agency, the agency has the right to suspend the fulfilment of all obligations towards the client and even to consider all agreements with the client dissolved in whole or in part, without any notice of default and/or judicial intervention being required, while retaining its right to compensation. Everything the client owes the agency becomes immediately due and payable.
51. In addition, the agency is entitled to dissolve the existing agreements between it and the client, insofar as they have not yet been performed, without judicial intervention, if the client fails to fulfil the obligations arising from any agreement concluded with the agency on time or properly, as well as in the event of bankruptcy or suspension of payments of the client or the shutdown or liquidation of its business. The consequences of suspension, termination and/or dissolution are entirely at the expense and risk of the client.
52. Suspension, termination and/or dissolution do not affect the payment obligation for work already performed. In addition, the agency is then entitled to claim from the client compensation for damage, costs and interest caused by the client’s breach of contract and the dissolution of the agreement, including the income lost by the agency.

Delivery times / exceeding the delivery period
53. The delivery times stated are approximate. Unless expressly agreed otherwise in writing, the agency gives no guarantee whatsoever with regard to the agreed delivery times, and late delivery does not entitle the client to compensation, dissolution of the agreement or non-fulfilment of any obligation towards the agency.
54. Agreed terms only apply if and insofar as the material to be processed, as well as the information required for the execution of the assignment, is delivered to the agency at the agreed time and the work to be carried out by the client itself or by third parties on its behalf has been completed on time. If, as a result of late delivery/execution of work by the client, the assignment can only be carried out by engaging extra transport, overtime, rush orders etc., the agency will be entitled to do so without prior consultation with the client and the resulting costs will be borne by the client.
55. In the event of late delivery by the client, the agency is entitled to set a new date for the execution of the assignment. Monitoring the timely delivery of the material to be processed, as well as the information required for the execution of the assignment, is the responsibility of the client.

Duty of care
56. In performing the work for the client, the agency will exercise the utmost care with regard to the client’s interests.
57. In particular, the agency – assuming clear agreements have been made regarding the intended use – ensures the correct audio and/or visual design of the communication materials and other materials and their compliance with the applicable statutory regulations, codes of conduct, normative values and guidelines, insofar as these are or should reasonably be known to it.
58. The agency undertakes to treat confidentially and to store the data, documents, drawings and designs provided by the client, as well as the materials entrusted to it such as slides, audio and visual materials, documents and other materials to be reproduced and/or recorded, but the agency accepts no liability whatsoever for loss due to fire, theft or breakage etc. insofar as not covered by insurance. In cases where valuable or irreplaceable unique items must be used, the client must insure these at its own expense and risk.

Complaints, claims and evidence
59. In respect of visible defects, the client must complain in writing immediately after the agency has delivered or presented the work it has performed to the client, or within 8 days after the advertising medium has appeared.
60. In respect of invisible defects, a written complaint must be made within eight (8) days after they could reasonably have been discovered.
61. Complaints about invoices must be submitted to the agency in writing within 8 days of the date on which the invoices were sent. The payment term is not suspended as a result of such a complaint.
62. After the aforementioned terms have expired, complaints will no longer be dealt with and the client will have forfeited its rights in this respect, unless the term reasonably requires extension in a particular case.
63. Subject to proof to the contrary, the data in the agency’s records are decisive.

Liability and indemnification against third parties
64. The client indemnifies the agency against all claims for damages by third parties relating to the accuracy of the factual content of communication materials and other materials produced on the client’s instructions that have been presented to it. This is of course without prejudice to the agency’s duty of care under article 57 et seq. of these terms and conditions.

Exoneration
65. Claims and other powers of the client or a third party against the agency in connection with an agreement lapse one year after the client or third party could reasonably have become aware of these rights or powers.
66. Any liability of the agency for work performed or to be performed by or on behalf of the agency, or otherwise related to an assignment issued to the agency, is limited to the amount that can be claimed in the relevant case under the liability insurance policy(ies) taken out by the agency, plus the amount of the deductible that is borne by the agency in the relevant case under the terms of that insurance policy(ies).
67. If the applicable liability insurance of the agency does not pay out for whatever reason, the agency’s liability is limited to the total net fee charged to the client under the agreement, up to a maximum of € 10,000, less the costs paid by the agency to third parties on the client’s behalf.
68. Except in the event of intent or gross negligence on the part of the agency, the client indemnifies the agency and will hold the agency harmless against all claims, demands and legal actions that a third party may at any time have against or bring against the agency and which arise directly or indirectly from or are related to the work or services performed or to be performed by the agency for the client, or which are otherwise related to the client’s assignment to the agency, including damage, costs and expenses suffered or incurred by the agency in connection with such a claim, demand or legal action.
69. The agency is not liable for damage to, loss or destruction of objects, materials or data made available to it for, by or on behalf of the client.

Force majeure
70. If the agency is prevented by force majeure from carrying out the agreed work in whole or in part, it has the right, at its discretion and without judicial intervention, to suspend the execution of the agreement or to consider the agreement dissolved in whole or in part, without being obliged to pay any compensation or give any guarantee.
71. Force majeure in this context means: strikes, lockouts, fire, machine breakdown and other business disruptions, either at the agency or at its suppliers of goods and services, transport disruptions and other events beyond its control, such as war, blockade, riot, epidemic, devaluation, flooding due to storms, as well as sudden increases in import duties and excise duties and/or taxes, delay or failure of delivery by suppliers, failure to obtain the necessary permits and other government measures.

Intellectual property
72. Copyrights and intellectual property rights arising from the work belong – after payment of all underlying invoices – to the agency, unless agreed otherwise in writing in advance.
73. As long as the client leaves the agency’s invoices unpaid, the agency retains, with regard to all of its services under agreements with the client, ownership of all items, documents, designs etc. originating from and/or produced by the agency, including the intellectual property rights attached to them.
74. When the relationship between the client and the agency ends, the rights will be transferred to the client against payment of 150% of the design or creative costs.
75. Insofar as intellectual property rights of third parties are involved, the agency will, at the client’s request, consult with these third parties before engaging them as to whether full transfer is desired or possible.
76. By issuing an assignment to publish or reproduce objects protected by copyright law or any other statutory regulation in the field of intellectual property that have been made available by or on behalf of the client itself, the client declares that no infringement is made of statutory regulations or protected rights of third parties and indemnifies the agency against claims by third parties in this respect and against the direct and indirect consequences, both financial and otherwise, arising from the publication or reproduction.
77. For the duration of the relationship, the client is not entitled to adapt, repeat or reproduce what has been produced on its instructions without the express written permission of the agency.
78. Unless expressly agreed otherwise, carrying out an investigation into existing patent rights, trademark rights, design or model rights, copyrights and portrait rights of third parties does not form part of the assignment.
79. If models, stock photos or illustrations are used for the execution of the assignment, the image rights always remain with the model or the model agency, the stock agency or the agency concerned. The client is never permitted to use the images more often than the rights obtained within the framework of the assignment allow. In the event of reuse, the client must always contact the agency.
80. Unless expressly agreed otherwise, the agency is entitled to report to BUMA/STEMRA or other copyright or image rights organisations the name of the client, the title of material reproduced for the client and the quantities in which it has been reproduced.

Materials
81. All designs, texts, descriptions, reports, advice, artistic performances, lithos, slides, films and other publicity materials (hereinafter: ‘the materials’) that the agency develops or has developed for or in connection with an assignment are treated with the utmost care by the agency and stored for two full calendar years.
82. At the end of this period, the agency may ask the client to indicate whether it wishes the materials to be kept by the agency for longer.
83. At the client’s request, the agency will hand over the materials, provided that the related invoices have been paid, or at least reasonable security has been provided for them.
84. At the end of the collaboration, the agency will hand over the materials still held by the agency to the client on first request, without retaining any copy, transcript, summary or other part thereof, provided that the client has paid all invoices it does not dispute, or at least has provided reasonable security for them.

Confidentiality
85. The agency will treat all confidential information about the client, such as its strategies and knowledge about its products, with the greatest care and will only make it available to its employees, suppliers or media if and insofar as this is necessary for the execution of the assignments. During the term of this agreement and after its termination, it will never, without the client’s permission, make the information public, allow third parties to inspect or use it, or use it for the benefit of third parties.

Nature and duration of the agreement
86. Unless expressly agreed otherwise in writing, or unless this follows from the nature of the assignment, the collaboration applies for an indefinite period, on the understanding that both parties may terminate the relationship with effect from the first day of a calendar month by registered letter, observing a notice period of at least six months.

Settlement of the relationship
87. All designs, reproduction materials, texts, descriptions, artistic performances, films and other publicity materials that are held by the agency at the end of the relationship as a result of the relationship will be transferred by it to the client on first request at cost price (all costs of making digital and other materials transferable), after everything the client owes it, on whatever grounds, has been paid. The agency will then also, without delay, instruct the media in writing to transfer the remaining contracted media space/time still to be used to the client or to a third party designated by the client.
88. In all cases where the relationship between the client and the agency ends, pursuant to any provision of these terms and conditions or through the intervention of the court, these terms and conditions will continue to govern the legal relationship between the parties insofar as this is necessary for the settlement of the relationship.

Competent court
89. The legal relationship between the agency and the client or another third party is governed by and subject to Dutch law.
90. All disputes arising from or related to (I) the work performed by or on behalf of the agency or assigned to it and/or (II) the legal relationship with the client or another 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 appeal in cassation.
91. The provisions and conditions contained in these General Terms and Conditions have also been made and stipulated for and on behalf of the directors and shareholders of the agency, the directors of those shareholders and all persons who work or have worked for the agency, whether as partner, employee, adviser, third-party contractor or in any other capacity. These General Terms and Conditions will therefore also apply to these legal relationships.