General delivery and payment conditions
General delivery and payment conditions
Flirt Creativity B.V., established in Amersfoort, hereinafter referred to as: ‘Contractor’
In the general terms and conditions, the following definitions apply:
1.1. Client: the natural person or legal person who instructs the Contractor to carry out the Work.
1.2. Work or Project: all deliverables and work that has been commissioned to be carried out by the Contractor and is directly relating to the assignment in the broadest sense of the word and in any case including the work as stated in the order confirmation or project agreement.
1.3. Documents: all items made available by the Client to the Contractor, including documents or data carriers.
2. Applicability and principles
2.1. These general terms and conditions apply to all offers and quotations from the Contractor and to all agreements entered into by the Contractor within the framework of the execution of the Work, subject to changes in these conditions which must be expressly confirmed in writing by the Contractor.
2.2. All quotations and offers are without obligation and count as an invitation to make an offer, unless otherwise agreed in writing.
2.3. If certain costs or cost items cannot be foreseen when drawing up the quotation and offer, these can be included pro memoria. Subsequent determination is made afterwards in reasonableness.
2.4. Any general terms and conditions of the Client are not applicable.
2.5. Verbal promises by, or agreements with subordinates of the Contractor, such as representatives and persons who are not in service by Contractor, including intermediaries, do not bind the Contractor until these agreements, commitments or agreements have been confirmed in writing by an authorized representative of the Contractor.
2.6. All prices are exclusive of VAT, transport costs and postage.
2.7. Terms stated by the Contractor are only indicative and not fatal. Exceeding any term can only give rise to compensation insofar as this has been agreed in writing.
3. Commencement and duration of the agreement
3.1. The agreement is only established at the time that the order confirmation signed by the Client is returned and signed by the Contractor.
3.2. The parties are free to prove the conclusion of the agreement by other means.
4. Client’s information
4.1. The Client is obliged to provide the Contractor with all information and Documents that the Contractor requires in accordance with his opinion for the correct execution of the assigned assignment, in the desired form, in the desired timeframe and in the desired manner. The Client guarantees the correctness, completeness and reliability of the data and Documents made available to the Contractor, even if these originate from third parties insofar as the nature of the assignment does not dictate otherwise. The Client indemnifies the Contractor against all damage arising from the information and Documents provided by the Client, as well as for all third-party claims in respect of infringements of their patent and / or copyright and / or trademark and / or design rights that they claim, as well as against any unlawful acts and / or shortcomings by those third parties.
4.2. The Contractor has the right to suspend the execution of the assignment until the moment that the Client has complied with the obligation referred to in the previous paragraph. The extra costs and extra fees arising from the delay in the execution of the assignment, caused by the failure to make the requested information and Documents not timely or not properly available, are at the expense of the Client.
4.3. The Client is obliged to inform the Contractor of all information that is necessary or useful for the execution or completion of the assignment. The Client is also obliged to inform the Contractor that they:
a. Intend to submit an application for a (provisional) moratorium;
b. Received provisional suspension of payment;
c. Intends to submit a declaration of their bankruptcy;
d. It has been recognized that one or more of their creditors have filed an application for bankruptcy;
e. Has been declared bankrupt; f. Their company wishes to discontinue, terminate and / or liquidate.
In these circumstances the Contractor has the right to terminate the agreement with immediate effect.
5. Assignment execution and additional services
5.1. The Contractor determines the manner in which the assignment is executed. The Contractor has the right to have certain Work carried out by third parties.
5.2. Revisions will be carried out by the Contractor upon feedback from the Client up to a reasonable timeframe. The Contractor will carry out maximum two revision rounds. In case the Client wishes more revisions, this might implicate additional costs.
5.3. The Contractor will provide the Client with the services & deliverables as agreed in the order confirmation. Should the Client request the Contractor to perform additional services beyond what is provided in the order confirmation, the request must be noted in writing.
5.4. The Contractor and the Client will negotiate in respect to the terms, conditions, and compensation for such additional services. Any agreement for additional services will be set forth in writing and are subject to approval from both parties.
6. Approvals and authority
6.1. The Client’s written approval of copy, layouts or artwork will be the Contractor’s authority to buy production materials and prepare proofs. The Client’s written approval of television, cinema and radio scripts and/or storyboards will be the Contractor’s authority to enter into production agreements, if necessary, with third parties. The Client is required to compensate these related costs to the Contractor.
7. Fee and Payment
7.1. Payments are to be made within 14 days of the invoice date by means of deposit into a bank account as designated by the Contractor in Dutch currency, without any right to discount or settlement.
7.2. The Contractor invoices 50% of the agreed amount before start of the Work, or in case of several deliverables executed under an agreement: 50% of the deliverable before the Contractor commences the creation of the relevant deliverable. The final 50% will be invoiced upon completion of the Work, or in case of several deliverables, upon completion of the deliverable by the Contractor, unless parties explicitly agree otherwise.
7.3. Notwithstanding the forgoing, the payment of (television, cinema, radio, video) productions will be as follows:
a. 50% of the budgeted total amount immediately after signing the agreement and in any case before the production date.
b. The remaining amount immediately upon delivery of the (television, cinema, radio, video) production.
7.4. The Contractor has the right to suspend the execution of the Work prior to the commencement of the Work, until the moment that the Client has paid an advance payment or has provided security for this.
7.5. The Contractor’s fee is not dependent on the outcome of the assignment and is calculated with due observance of the Contractor’s usual rates.
7.6. If after the conclusion of the contract, but before the assignment has been fully executed, wages and / or prices undergo a change, the Contractor is entitled to adjust the fee.
7.7. All by the Contractor communicated sums are exclusive of VAT, which the Client shall pay in addition.
7.8. Potential for any and all late payments have to be communicated by the Client to the Contractor in writing.
7.9. If the Client has not paid within the aforementioned period, or not within the further agreed term, he is legally in default and the Contractor, without further summons or notice of default, has the right from the due date, to charge the Client the statutory interest until the date of full payment, all this without prejudice to the further rights which the Contractor has.
7.10. All costs incurred as a result of judicial or extrajudicial collection of the claim are at the expense of the Client. The extrajudicial costs are set at least 15% of the amount to be claimed, with a minimum of € 500.
7.11. In the case of a joint assignment, Clients shall be jointly liable for the payment of the invoice amount insofar as the Work has been performed for the joint Clients.
7.12. All Work produced for or delivered to the Client remains the property of the Contractor, until the Client has paid all amounts owed to the Contractor.
8.1. A complaint with regard to the Work performed and/or the invoice must be submitted in writing to the Contractor within 21 days of the dispatch of the Work or invoice with which the Client has a complaint with, or within 21 days of the discovery of the defect, if the Client demonstrates that he could not have reasonably discovered the defect prior to this.
8.2. A complaint does not suspend the payment obligations of the Client.
8.3. In the case of incorrect Work, the Contractor has the choice between adjusting the fees charged, the free improvement or re-performance of the rejected Work or the partial or total non-execution of the assignment against a refund in proportion to the fee already paid by the Client.
8.4. In case of photoshoots, video shoots and any production related deliverables, the Client is still liable for the payment of external staff and equipment.
8.5. No refund will be distributed after the Work is completed and final payment has been received, except in circumstances as stated in section (8.3).
9.1. In case of premature termination of an agreement by the Client, this does not lead to restitution of the agreed amount for all Work the Contractor has been appointed to create. The Client is due to pay the full agreed amount.
10. Force Majeure
10.1. If the Contractor cannot, in a timely or proper manner fulfil his obligations arising from an agreement as a result of a non-attributable cause, including but not limited to, stagnation in the regular course of affairs within the company in the broadest sense of the word, these obligations shall be suspended until the moment that the Contractor is able to fulfil this in the agreed manner. In this case the Contractor is not liable to pay any damages.
10.2. In this situation, the Client has after a period of 3 months the right to terminate the agreement in writing in whole or in part and with immediate effect.
11. Exclusivity and relationship clause
11.1. If the Client engages with another agency or party to accomplish the same Work as set out in the order conformation, this constitutes a breach of agreement. As a consequence for such a breach, the Contractor is under no obligation to deliver Work completed if no payment for all agreed Work has been received.
11.2. Refunds will not be distributed. The Client will be billed for the full agreed amount within the agreement both parties entered.
11.3. During the performance of the Work and up to one year thereafter, the Client will not employ or engage employees of the Contractor directly or indirectly in any way whatsoever. In the event of violation of this clause, the Client will immediately owe a payable fine of € 50,000, without prejudice to the Contractor's right to claim additional damage.
12. Intellectual property
12.1. All intellectual property rights that arise in regard to the Work delivered by the Contractor to the Client (such as but not limited to: campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, graphic materials, film, music, transcriptions) are the property of the Contractor.
12.2. Notwithstanding the foregoing, it is understood that the Contractor may, on occasion, license materials from third parties for inclusion in Work produced. In such circumstances, ownership of such licensed materials remains with the licensor at the conclusion of the term of the license. In such instances, the Client agrees that it remains bound by the terms of such licenses. The Contractor will keep the Client informed of any such limitations.
12.3. To enable the reasonable use of the Work, the Contractor grants the Client a non-exclusive and non-transferable right to use intellectual property rights in the Work delivered to the Client, provided that the Client complies with the obligations under the agreement.
12.4. The Contractor may only transfer intellectual property rights to the Client if this is expressly agreed by the Contractor and after the payment of a fee.
12.5. The Client is explicitly prohibited to adjust the Work delivered by the Contractor or use it for any other manner other than agreed, with or without the involvement of third parties, unless otherwise agreed by the Contractor.
12.6. If the Client acts in violation of the provisions within this section (12), the Contractor is entitled to a penalty of 3 times the fee for the Work involved, without prejudice to the Contractor's right to claim the actual damage if this is more.
12.7. The Contractor is entitled to use the Work delivered to the Client, as demonstration material within its regular marketing activities.
13.1. The Contractor and the Client are obliged, subject to obligations imposed by law on them, not to disclose certain information, and to swear to secrecy towards third parties who are not involved in the execution of the assignment. This confidentiality concerns all information of a confidential nature that has been made available to the other party and the results obtained through the processing thereof.
14.1. Subject to the rest of this section (14): in case the Contractor can be held liable for improper execution of the assignment, the liability of the Contractor is limited to direct damage and limited to the amount that the Contractor's liability insurance pays. In case the liability insurance for any reason does not pay, the liability is limited to the maximum of the invoice amount of the relevant assignment (exclusive VAT), up to a maximum of € 10,000 (ten thousand euros). This is with the exception of layouts for printed matter.
14.2. (Digital) layouts for printed matter are always made by the Contractor to the best of their knowledge and ability. However, the Contractor is never and in no way liable for the well-being of the final printed matter, or errors in the layout and / or content of the printed matter. The Contractor always strongly advises the Client to have proofs / test prints made by the printer / third party and to check them very carefully before ordering the printing press / third party to give final approval. Even then, when the Client requests the Contractor to check the proofs, the final risk remains with the Client.
14.3. The Contractor is never liable for all indirect damage, including stagnation in the regular course of business in the Client's company, in any way related to, or caused by, an error in the execution of the Work by the Contractor, except for intent or gross negligence.
14.4. The Contractor is not liable for damage or destruction of Documents and data in general and during transport or during (electronic) dispatch by mail, regardless of whether the transport or dispatch is done by or on behalf of the Client, Contractor or third parties.
14.5. The Contractor and the Client will take reasonable precautions to safeguard property of the other entrusted to it. In the absence of negligence or willful disregard, neither Contractor nor Client will be responsible for any loss or damage.
15.1. Software and / or software developed by the Contractor (such as apps) shall, unless otherwise agreed (in a Service Level Agreement), be covered by a guarantee of no more than one month after delivery. Errors caused by inappropriate use, platforms, software from third parties and reasonably unforeseeable events are not covered by this guarantee.
16. Data processing agreement
16.1. If the Contractor processes personal data from the Client within the framework of AVG / GDPR on behalf of the Client, the Client will ensure a proper processing agreement. The Contractor assumes that the Client has secured legal permission or legal basis on which to process the personal data.
16.2. The Client indemnifies the Contractor against any fines imposed, other damages, or costs suffered by the Contractor as a result of the processing of personal data by the Contractor on behalf of the Client in the execution of the agreement.
17. Governing law and choice of forum
17.1. Dutch law applies to all agreements between the Client and the Contractor.
17.2. All disputes relating to agreements between the Client and the Contractor, shall be settled by the competent court in the district Midden-Nederland, the Netherlands.
18.1. In case of conflict between the Dutch and English version of the general conditions of the Contractor, the Dutch version prevails.