General Terms & Conditions of Brand Articulations

1. DEFINITIONS

The following definitions shall be used in the context of these General Terms & Conditions:
a. “Agency” means Brand Articulations B.V., having its registered seat in Amsterdam, the Netherlands.
b. “Assignment” means a written agreement between the parties concerning the Services to be performed by Agency.
c. “Client” means the party that Agency provides its services to.
d. “Client Material” means any information, materials or rights provided by the Client to the Agency in connection with the Agency’s services for the Client.
e. “Services” means all services relating to marketing communication and strategy and the creation and production of advertising materials agreed between the parties.
f. “Work” means advertising material which the Agency produces on the Client’s behalf in finished form in accordance with the Assignment.

2. SCOPE

2.1. These General Terms & Conditions shall apply to and form part of all offers, quotations, cost estimates, Assignments and any other agreements between the Agency and the Client, and all work performed by Agency in the context of such Assignments and other agreements.
2.2. The applicability of any other general terms and conditions to be applied or referred to by the Client is hereby explicitly dismissed.

3. INCEPTION OF ASSIGNMENT

3.1. All offers, quotations and cost estimates provided by the Agency shall be non-binding unless it has been explicitly stated to the contrary in writing in a specific offer, quotation or cost estimate.
3.2. Assignments shall only be realized on the Agency’s written confirmation of the Assignment, or on the Agency having made a start on the Assignment’s execution.
3.3. Any changes in the scope of the Assignment must be communicated timely and in writing to the Agency, and will only take effect after acceptance of such changes by the Agency, either by written confirmation by the Agency or by the Agency having made a start on the execution of the changes. Additional costs as a result of changes to the Assignment will be borne by the Client. If a deadline is exceeded as a result of changes to the Assignment, then that is for the account and risk of the Client.

4. COMPENSATION, CHARGES AND PAYMENTS

4.1. In consideration of the Services of the Agency, the Client will pay to Agency the compensation set forth in the Assignment concerned.
4.2. Payment of the Agency’s compensation is due, without any deduction, discount or debt settlement, within 15 days of the invoice date. Payments, denominated in the currency indicated in the invoice, shall be remitted to a bank account designated by the Agency. Complaints about or objections to any amounts charged shall not suspend the Client’s obligation to pay.
4.3. The Agency’s compensation shall be exclusive of its out-of-pocket expenses, exclusive of any fees charged by third parties engaged by the Agency and exclusive of any turnover tax and other levies that are or may be imposed by government authorities. The Agency shall recharge the costs of any such out-of-pocket expenses, third-party fees, taxes and levies to the Client.
4.4. The Agency will bill the Client for charges pursuant to Section 5 below after the Client’s approval of estimates for such charges, and the Client agrees to pay these charges within the payment term used by Agency, except that any payments the Agency must make on the Client’s behalf must be collected from the Client no later than the earliest dates on which the Agency must make payment on the Client’s behalf. Billing adjustments will be made for differences between estimated charges previously billed and charges actually incurred after completion of each project, and the Client shall pay the Agency any additional amounts within 15 days of the invoice date.
4.5. The Agency shall at all times be entitled to require an advance payment by the Client, for example in connection with production costs to be incurred.
4.6. If the Agency believes that the Client’s financial position and/or payment performance justifies such action, the Agency has the right to demand that the Client immediately furnishes security or additional security in a form to be determined by the Agency and/or make an advance payment. If the Client fails to furnish the desired security or make the desired advance payment, the Agency has the right, without prejudice to its other rights, to immediately suspend any further execution of the Assignment, and all amounts the Client owes the Agency, for whatever reason, shall become immediately due and payable.
4.7. All judicial and extrajudicial (collection) costs that the Agency incurs in connection with the Client’s failure to comply with its (payment) obligations shall be for the account of the Client. The parties hereby declare that the provisions of the Dutch Extrajudicial Collection Costs Regulation Decree, containing additional rules on the reimbursement of extrajudicial costs, shall not apply. The Agency reserves the right to demand reimbursement of the costs actually incurred.
4.8. All cost and prices mentioned in offers, quotations, cost estimates, Assignments and agreements and these General Terms & Conditions are exclusive of VAT unless otherwise stated.

5. PRODUCTION AND OTHER CHARGES

5.1. The Client agrees to pay the Agency for all third party charges incurred on the Client’s behalf for the development, production, and purchase of advertising materials and programs including, without limitation, typography, engraving, printing, photographs, artwork, comprehensive layouts, paste-ups, mechanicals, photoboards, film, video tapes, musical compositions and arrangements, radio and television programs and facilities, talent, props, scenery, sound and lighting effects, software, research, rights, royalties, and producers' and packagers' fees.
5.2. The Client also agrees to pay the Agency in accordance with the Agency’s standard charges, which may be adjusted by the Agency from time to time, for any studio functions performed by the Agency including, without limitation, for any paste-ups, mechanicals, comprehensive production storyboards and photoboards, printing, typography, retouching, editorial services, illustration, graphics, animation, designs, computer aided design, digital image research, portable media, and color output and prints.
5.3. The Client also agrees to pay the Agency for: travel expenses, including transportation, hotels, meals, etc.; charges originating with Agency for costs of forwarding, storing, shipping, mailing, telephoning, duplicating, and courier and messenger services; charges for talent payment services; and charges for legal services including, without limitation, legal review of advertising and other materials and negotiation of talent and other contracts.
5.4. The Client has the right at any time to direct the Agency to cancel any plans, schedules, or work in progress, and the Agency shall endeavor to do so. The Client agrees to make all payments that may be required for commitments that the Agency is not able to cancel, and to indemnify the Agency against any loss, cost, or liability that the Agency may sustain as a result of such action. Under no circumstances will the Agency be required to breach any lawful contractual commitment to others.

6. COMPLAINTS

6.1. The Agency must be notified in writing and within thirty (30) days of the date of dispatch of documents or information in respect of which the Client is filing a complaint, subject to forfeiture of any complaints relating to the services provided and/or the invoice amount or, if the Client proves that it could not have reasonably discovered that defect, error or shortcoming earlier, within thirty (30) days of the discovery of the defect, error or shortcoming.
6.2. Complaints as referred to in the first paragraph shall not suspend the Client’s obligation to pay. Under no circumstance shall the Client be entitled, by virtue of a complaint in respect of a certain service, to defer or refuse payment for other services provided by the Agency to which the complaint does not relate.
6.3. If the Client filed a legitimate and timely complaint, the Client shall have the choice between the Agency adjusting the fee charged, having the rejected service rectified or redone free of charge, or terminating the Assignment (or remaining services) in exchange for a refund proportionate to the fee already paid by the Client.

7. DELIVERY PERIOD

7.1. If the Client is required to make an advance payment or to make information and/or materials available that is/are required for execution of an Assignment, the term for completing the Services will not start until the Agency has received the payment in full or until all information and/or materials have been made available to the Agency respectively.
7.2. The due dates for completion of the Services shall be regarded as strict deadlines only if this has been agreed in writing in advance.
7.3. Unless execution of an Assignment proves to be permanently impossible, the Client shall not terminate the Assignment on account of the Agency failing to meet a deadline, unless the Agency does not perform the Assignment, either partially or in full, within a reasonable period of which the Agency has been notified in writing after expiry of the agreed delivery period.

8. INTELLECTUAL PROPERTY

8.1. The Client guarantees that any Client Material (i) does not infringe (and will not cause to infringe) third party (intellectual property) rights and (ii) that any Client Material complies with all applicable rules and regulations.
8.2. The Agency reserves all intellectual property rights in relation to the products of its Services to the Client, including all intellectual property rights in relation to the Work.
8.3. The Client will obtain a license to use the Work in accordance with the purpose of use, term, territory and media specified in the applicable Assignment when the Client has paid the Agency’s invoices.
8.4. The Agency shall (amongst others) have the right to use the Work for its own marketing, promotional, and publicity purposes in any manner or media whatsoever whether now or hereafter known (including, without limitation, as part of presentation materials for new business pitches, in the Agency’s portfolio, on the Agency’s reel, on the Agency’s website, and on the websites of the Agency’s affiliated agencies) and to submit the Work to awards shows and industry events.

9. LIABILITY

9.1. The Agency shall provide its Services to the best of its ability and shall exercise the due care that may be expected of it. If errors are made as a result of the provision to the Agency of incorrect or incomplete information by the Client or a third party, the Agency shall not be liable for any resulting damage.
9.2. Where there are grounds for doing so, the Agency will use best efforts to inform the Client of any legal risk associated with the envisioned use of the result(s) of an Assignment (for example if the Agency suspects non-compliance with applicable laws and regulations or infringement of third party rights). The Client will at all times be responsible for its use of the result(s) of an Assignment. The Agency shall not be held liable for any direct or indirect damage as a result of such use by the Client.
9.3. The Agency’s total liability to the Client for any errors that would have been prevented if the Agency had exercised due care, is limited to the highest of the following two amounts:
- the amount which the liability insurance taken out by Agency pays in the event in question, plus the amount of deductibles (‘eigen risico’) that Agency is obliged to pay under the applicable insurance contract; or
- an amount of EUR 50,000 (fifty thousand euros). The Agency shall not be held liable for:
- failures on the part of third parties, whether or not engaged by Agency;
- failures on the part of the Client;
- consequential or indirect or punitive damage and/or loss of profit;
- claims arising from risks which the Agency has brought to the attention of the Client in writing, materials or rights created or supplied by the Client, modifications made by the Client to Work, or
- contracts entered into or alleged to have been entered into by the Client.
9.4. This limitation of liability shall not apply if it is related to an intentional act (in Dutch: ‘opzet’) or willful recklessness (in Dutch: ‘bewuste roekeloosheid’) on the part of the Agency and/or if any applicable mandatory national or international legislation or regulation dictates otherwise.
9.5. The Client shall indemnify the Agency and hold the Agency harmless against any claims by third parties that may arise as a result of any failure on the part of the Client to comply or to comply properly with any obligation arising from the Assignment and/or these General Terms & Conditions, unless the Client demonstrates that the losses do not relate to imputable acts or omissions on the part of the Client, or were caused by an intentional act or willful recklessness on the part of the Agency, and unless any applicable mandatory national or international legislation or regulation dictates otherwise.
9.6. The Client’s rights of action and other powers of whatever nature with respect to the Agency arising from an Assignment in any way, shall lapse after one year from the date on which the damage or loss for which the Agency is held liable first manifested itself and in any event after five years from the date on which the event causing the damage or loss occurred.

10. EARLY TERMINATION OF ASSIGNMENT

10.1. Termination for convenience: either party has the right to terminate an Assignment in writing, with due observance of a reasonable notice period.
10.2. Termination for cause: either party is entitled to terminate an Assignment, either partially or in full, in writing and with immediate effect, without notice of default or judicial intervention being required, if the other party has been granted a provisional or final suspension of payment, or has been declared insolvent or bankrupt, or if its business is or shall be wound up or discontinued.
10.3. If the Client fails to (properly) perform its contractual obligations under an Assignment, the Client is in default from the moment of breach without notice of default being required. In that case, the Agency is entitled to terminate the Assignment, either partially or in full, in writing and with immediate effect, without notice of default or judicial intervention being required, and the Agency shall be entitled to compensation for Services already provided and for any costs that the Agency reasonably has to incur as a result of the early termination of the Assignment (including costs relating to subcontracting).
10.4. If the Client decides to terminate an Assignment early, the Agency shall be entitled to compensation for Services already provided and for any costs that the Agency reasonably has to incur as a result of the early termination of the Assignment (including costs relating to subcontracting), unless the termination was motivated by facts and circumstances that can be attributed to the Agency. If the Agency terminates the Assignment early, the Client is entitled to the Agency’s assistance in transferring work to third parties, unless the termination was motivated by facts and circumstances that can be attributed to the Client.

11. MISCELLANEOUS

11.1. The Agency’s rights and powers under an Assignment shall not be affected or limited by its failure to directly enforce any rights or powers. Notice to waive any right or power laid down in or ensuing from any provision or condition of the Assignment must be given in writing.
11.2. If and to the extent that any provision of an Assignment cannot be invoked in all reasonableness and fairness, or by virtue of its unreasonably onerous nature, the provision in question shall in any event be accorded a meaning corresponding as closely as possible to its original purport and tenor so that this provision can nevertheless be invoked.
11.3. The provisions of an Assignment, which are intended, either expressly or tacitly, to remain in effect even after termination of the Assignment, shall have continued effect after the Assignment has been terminated and shall continue to bind the parties.
11.4. If these General Terms & Conditions and the written confirmation of the Assignment contain conflicting conditions, the conditions of the written confirmation of the Assignment shall prevail. Deviation from these General Terms & Conditions can be agreed only in the written confirmation of the Assignment in which the Agency undertakes to provide Services to the Client.
11.5. All Assignments contracted between the parties and the negotiations of these Assignments shall be governed by the laws of the Netherlands. Any disputes between the parties relating to Assignments contracted between them shall in the first instance be referred to the competent Court in Amsterdam, the Netherlands.