GENERAL CONDITIONS Abovo Media BV
Article 1. Definitions
1. In these general terms and conditions, Abovo Media (“Abovo Media bv”) means: Advertising and media agency Abovo Media, with its office in (1625 NV) Hoorn at the Dr. C.J.K. van Aalstweg 8f-401, registered in the Northwest Holland Kamer of Koophandel under number 370 86 131.
1.2 In the General Terms and Conditions, client (“Client”) is understood to mean: the person who requests Abovo Media to make an offer and / or enters into an Agreement with Abovo Media and / or gives an ad hoc Assignment in the context of development and / or delivery of a Product.
1.3 In the General Terms and Conditions, product (“Product”) means: all work to be performed and work to be produced by Abovo Media for the Client, including, but not limited to, designs, concepts, advertisements, logos, house styles, flyers, ( work) drawings, brochures, periodicals, (design) sketches, internet sites, banners, films, campaign proposals, recruitment advice and other materials or (electronic) files.
1.4 In the General Terms and Conditions, Assignment (confirmation) / agreement is understood to mean: Any mutual acceptance, confirmed in writing, by telephone or by e-mail, of delivery of one or more Products or services from Abovo Media.
Article 2. Applicability
2.1. These terms and conditions apply to every offer, quotation and agreement between Abovo Media and a Client to which Abovo Media has declared these terms and conditions applicable, insofar as the parties have not explicitly deviated from these terms and conditions in writing.
2.2 The present conditions also apply to agreements with Abovo Media, for the implementation of which third parties must be involved by Abovo Media.
2.3 These terms and conditions are also written for the employees of Abovo Media and its management.
2.4. The applicability of any purchase or other conditions of the Client is expressly rejected.
2.5 If at any time one or more provisions of these general terms and conditions are wholly or partially invalid or should be declared null and void, then the remaining provisions in these general terms and conditions remain fully applicable. Abovo Media and the Client will then enter into consultation in order to agree new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and purport of the original provisions.
2.6 If there is uncertainty about the interpretation of one or more provisions of these general terms and conditions, the explanation must take place “in the spirit” of these provisions.
2.7 If a situation occurs between parties that is not regulated in these general terms and conditions, then this situation must be assessed in the spirit of these general terms and conditions.
2.8 If Abovo Media does not always demand strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that Abovo Media would lose the right to some extent to ensure strict compliance with the provisions of these terms and conditions in other cases.
Article 3. Offer and acceptance
3.1 All quotations and quotations made by or on behalf of Abovo Media are without obligation, unless a period for acceptance is stated in the quotation. If no acceptance period has been set, no rights whatsoever can be derived from the quotation or offer if the product to which the quotation or the offer relates is no longer available in the meantime.
3.2 Abovo Media cannot be held to its quotes or offers if the Client can reasonably understand that the quotes or offers, or a part thereof, contain an obvious mistake or error.
3.3 If the acceptance (whether or not on minor points) deviates from the offer included in the offer or the offer, then Abovo Media is not bound by this. The agreement will then not be concluded in accordance with this deviating acceptance, unless Abovo Media indicates otherwise.
3.4 A composite quotation does not oblige Abovo Media to execute part of the assignment against a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders
Article 4. Commencement of the agreement
4.1 An agreement is concluded at the moment that: – An order by e-mail, telephone or post is issued by the Client to Abovo Media and has been confirmed by Abovo Media; – The Client has accepted an offer sent by Abovo Media.
4.2 From the moment of conclusion of the agreement, or at another time agreed by the parties, Abovo Media will start the implementation of the agreement. The parties are free to prove the conclusion of the agreement by other means.
Article 5. Duration and cancellation of the agreement
5.1 The agreement is entered into for a period as agreed in the order confirmation.
5.2 Cancellation of the agreement by the Client must be in writing, under the conditions as described in this article.
5.3 In the event that the Client cancels all or part of an assignment as agreed in an order confirmation, the client is obliged towards Abovo Media to pay a percentage of the total amount of the orders canceled by him, to cover the costs incurred by Abovo Media , as well as the damage suffered by it in the form of loss of profit.
5.4 The amount of the percentage mentioned in 5.3 depends on the time of cancellation and amounts to:
a. for annual contracts before or in the first quarter after the start date of the contract period 40%, in the second quarter 60% and in the third quarter 80%;
b. For semi-annual contracts before or in the first quarter after the start date of the contract period, the percentage is 60%;
c. With three-month contracts and during the last quarter of annual and semi-annual contracts, cancellation is not possible and the total amount of the agreed assignments must be paid in full.
Article 6. Execution Agreement
6.1 Abovo Media will endeavor to execute the Agreement as carefully as possible, to represent the interests of the Client to the best of its knowledge and to strive for a result that can be used by the Client. All this on the basis of the current state of science. Insofar as necessary, Abovo Media will keep the Client informed of the progress of the work to implement the Agreement.
6.2 If and insofar as Abovo Media believes this is necessary for the implementation of the Agreement, Abovo Media has the right to have work carried out by third parties on behalf of and for the account of the Client, without the prior permission of the Client from Abovo Media.
6.3 The Client ensures that all data, including, but not limited to, information and documentation, of which Abovo Media indicates that these are necessary or of which the Client should reasonably understand that these are necessary for the performance of the Agreement, must be provided to Abovo in a timely manner. Media are provided. If the information required for the implementation of the Agreement is not provided to Abovo Media in time, Abovo Media has the right to suspend the implementation of the Agreement and / or to charge the Client for the additional costs arising from the delay. Abovo Media is not liable for damage of whatever nature caused by the fact that Abovo Media relied on incorrect and / or incomplete information provided by the Client.
6.4 If Abovo Media prepares a budget for costs of third parties at the request of the Client, this budget will only have an indicative scope, from which the Client can therefore not derive any rights. If desired, Abovo Media can request quotations on behalf of the Client.
6.5 If it has been agreed that the Agreement will be implemented in phases, Abovo Media may suspend the implementation of those parts that belong to a subsequent phase until the Client has approved the results of the preceding phase in writing.
6.6 Before proceeding with the production, reproduction or publication of the Product, the parties must give each other the opportunity to check and approve the latest models or tests of the Product. At the request of Abovo Media, the Client must confirm his approval by telephone, in writing or not by e-mail.
6.7 A term specified by Abovo Media for the completion of the Agreement has an indicative purpose and therefore does not concern a deadline, unless the nature or content of the Agreement shows otherwise. In any case, the agreed work will be delivered before the supplier’s deadline, provided that Abovo Media is not hindered by the other provisions in article 6 or other articles of these general terms and conditions.
6.8 Performing tests, applying for permits and assessing whether the Client’s instructions meet the legal standards.
Article 7. Amendment or addition to the agreement
7.1 Additions and changes to the agreement can only be made in writing.
7.2 If during the execution of the agreement it appears that for a proper implementation thereof it is necessary to change or supplement it, then the parties will proceed to adjust the agreement in a timely manner and in mutual consultation.
7.3 If the nature, scope or content of the agreement, whether or not at the request or instruction of the Client, of the competent authorities, etc., is changed and the agreement is thereby amended in qualitative and / or quantitative terms, this may have consequences for what was originally agreed. As a result, the originally agreed amount can also be increased or decreased. Abovo Media will provide a quotation for this as much as possible in advance. In addition, the originally specified term of implementation can be changed by changing the agreement.
7.4 The Client accepts the possibility of altering the agreement, including the change in price and period of execution.
Article 8. Ascendency
1. Abovo Media is not obliged to fulfill any obligation towards the Client if it is prevented from doing so as a result of a circumstance that is not due to fault, and neither under the law, a legal act or generally accepted ideas for its use.
2. In these general terms and conditions, force majeure is understood to mean, in addition to what is understood by law and jurisprudence, all of external causes, foreseen or unforeseen, over which Abovo Media cannot influence, but as a result of which Abovo Media is unable to obligations. Including strikes in the company of Abovo Media or third parties. Abovo Media also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after Abovo Media should have fulfilled its obligation.
3. Abovo Media can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, then each of the parties is entitled to terminate the agreement, without obligation to compensate damage to the other party.
4. Insofar as Abovo Media has at the time of the occurrence of force majeure, its obligations under the agreement have been partially fulfilled or will be able to comply with it, and the part fulfilled or to be fulfilled deserves independent value, Abovo Media is entitled to fulfill the already fulfilled or to be invoiced separately. The Client is obliged to pay this invoice as if it were a separate agreement.
Article 9. Prices
9.1 All prices stated on the order confirmation, as well as agreed prices, are exclusive of VAT and other government levies, unless stated otherwise.
9.2 Abovo Media has the right to change the agreed prices. These changes are made known to the client within seven (7) days after acceptance or at the latest two months before they take effect. Client is entitled to terminate the agreement on the effective date of the change.
Article 10. Payment conditions
10.1 Abovo Media sends the client an invoice per agreed payment term, by post or by e-mail, for the costs associated with the agreement. Payment of an invoice must be made within fourteen days of the invoice date and without deduction or compensation or other means of settling the debt under whatever name.
10.2 The client who has not paid by the due date is in default, without a notice of default being required, in default
10.3 In the event of late payment, all judicial and extrajudicial costs will be borne by the negligent client. The extrajudicial costs are in any case 15% (excluding the statutory turnover tax) of the total payable with a minimum of € 200.00, while the client also owes an interest of 1% per month, unless the statutory interest is higher. if the statutory interest is due, whereby part of a month will be counted as a full month, from the invoice date up to and including the day of full payment.
10.4 (Partial) payments made by the client are first deducted from the amount of interest and costs in accordance with Article 6:44 of the Dutch Civil Code. After full payment of interest and costs, further payments are deducted from the principal (s).
10.5 Before entering into the assignment or part thereof, Abovo Media is entitled to demand sufficient security for payment and execution of the assignment. If those securities cannot be provided, Abovo Media is entitled to suspend the execution of the assignment.
10.6 The person who has signed the order confirmation on behalf of the client is jointly and severally liable vis-à-vis Abovo Media for compliance with the payment obligations towards Abovo Media under the order.
10.7 Abovo Media has the right to the client who has not paid on time, without prejudice to her other rights:
• Suspend further execution of the assignment;
• Immediate payment of the outstanding invoices, possibly plus costs and advances not yet invoiced;
• To dissolve the order (s) insofar as they have not been carried out, without further notice of default or judicial intervention being required, all without prejudice to Abovo Media’s right to compensation for damage resulting from the dissolution of the order (s) .
Article 11 Termination and cancellation of the agreement
Without prejudice to the provisions of the previous articles and without prejudice to Abovo Media’s rights to further compensation, Abovo Media has the right to dissolve the agreement, or the non-executed part thereof, by simple notification to the client without further notice of default or judicial intervention if:
a. the client fails to fulfill his obligations towards Abovo Media,
b. the client is in a state of bankruptcy, applies for a moratorium, is placed under guardianship or administration.
Article 12 Complaints
12.1 If the client is of the opinion that the costs charged are incorrect or the order has not been executed correctly, the client can make the objections known to Abovo Media in writing within 10 days of the date. After receiving the objection, the Abovo Media will conduct an investigation into the correctness of the objections.
12.2 If the Client complains in time, this does not suspend its payment obligation. In that case too, the Client remains obliged to purchase and pay for the otherwise ordered products and what they have ordered from Abovo Media.
12.3 If a defect is reported later, the Client will no longer be entitled to repair, replacement or compensation, unless otherwise agreed by the parties.
Article 13. Intellectual Property Rights
13.1 Unless otherwise agreed in writing, all intellectual property rights arising from the Assignment, including, but not limited to, design rights and copyright, belong to Abovo Media. Insofar as such a right can only be obtained through a deposit or registration, only Abovo Media is authorized to do so. If and insofar as the transfer of (parts of) rights by the Client is necessary, the Client undertakes fully and unconditionally to provide all necessary cooperation in this regard.
13.2 Unless otherwise agreed in writing, the Assignment does not include the investigation of the existence of patent rights, trademark rights, trade name rights, rights to drawings and models, copyrights and portrait rights of third parties. The same applies to any investigation into the possibility of such forms of protection for the Client.
13.3 Abovo Media is at all times entitled to have its name stated on or attached to the Product or to have it removed, provided that this concerns Products in the categories of printed matter, periodic publications and / or internet sites. Without prior permission, the Client is not permitted to take the Product into production, to make it public or to reproduce it without mentioning the name of Abovo Media.
13.4 The Product created by Abovo Media in the context of the Assignment remains the property of Abovo Media, regardless of whether this Product has been handed over to the Client or third parties. The Products delivered and / or placed by Abovo Media may not be used without written permission from Abovo Media, for media other than those agreed and selected by it and commissioned by Abovo Media. Abovo Media is the exclusive copyright holder of work made by or on behalf of it.
Article 14. Use and license
14.1 When the Client fully meets his obligations, including, but not limited to, his payment obligation under the Agreement with Abovo Media, the Client obtains a non-transferable, non-exclusive license for a number of users to be determined by the Agreement. the use of the Product insofar as it concerns the right of publication and reproduction in accordance with the destination agreed upon in the Agreement. If no agreements have been made regarding the destination, the licensing is limited to that use of the Product, for which there were certain intentions at the time the Agreement was concluded. These intentions must be made known to Abovo Media in writing before the conclusion of the Agreement.
14.2 The Client is not entitled to re-use a Product or to use it more broadly than stipulated in the Agreement without the written permission of Abovo Media or has been made known upon departure of the Order. For each use of a Product for which no permission has been granted, Abovo Media will receive an immediately claimable compensation of at least three times the usual compensation for such use, with a minimum of € 1,500 (fifteen hundred Euros).
14.3 The Client is not permitted to make changes to the provisional or definitive Product without written permission from Abovo Media.
14.4 Abovo Media is free to use the name of the Client and the Product developed for the Client for its own publicity, promotion or otherwise.
Article 15. Liability
15.1 If Abovo Media should be liable, then this liability is limited to the provisions of this provision.
15.2 Abovo Media is not liable for damage, of any nature whatsoever, caused by the fact that Abovo Media relied on incorrect and / or incomplete data provided by or on behalf of the Client.
15.3 Abovo Media is also not liable for:
errors in the material provided by the Client;
b. misunderstandings or errors with regard to the implementation of the Agreement if this is caused or caused by actions by the Client, such as late or non-delivery of complete, sound and clear data / materials;
c. errors by third parties engaged by or on behalf of the Client;
d. errors in the Product, if the Client, in accordance with the provisions of Article 6.5, has given its approval, or has been given the opportunity to carry out an inspection and has indicated that it does not need such an inspection, or within ten (10) days after the damage has occurred, has submitted a written complaint; e. errors or problems that arise after delivery and by use or maintenance of the delivered Product by others than Abovo Media;
15.4 If Abovo Media should be liable for any damage, then the liability of Abovo Media is limited to a maximum of twice the invoice value of the order, at least to that part of the order to which the liability relates.
15.5 The liability of Abovo Media is in any case always limited to the amount paid out by its insurer, as appropriate.
15.6 Abovo Media is only liable for direct damage.
15.7 Direct damage is exclusively understood to mean the reasonable costs to determine the cause and the extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to compensate Abovo Media for a defective performance. to have the agreement answered, insofar as these can be attributed to Abovo Media and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions. Abovo Media is never liable for indirect damage, including consequential damage, lost profit, lost savings and damage due to business interruption.
15.8 The client explicitly indemnifies Abovo Media against all claims for compensation that third parties may assert with regard to damage that has arisen in any way as a result of the unlawful or careless use of the products and services of Abovo Media delivered to the client. Abovo Media is not responsible or liable for the content of promotional material supplied by the client. The client is liable for all damage that Abovo Media may suffer as a result of a shortcoming attributable to the client in the fulfillment of the obligations arising from the agreement and these conditions. The client must immediately notify Abovo Media in writing of changes to the client’s data. If the client does not do this, the client is liable for any damage that Abovo Media suffers as a result thereof.
15.9 The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of Abovo Media or its managerial subordinates.
Article 16 Copies of materials
16.1 The Client is obliged, if reasonably possible, to keep copies of materials and data provided by him until the Agreement has been completed. If the Client fails to do so, Abovo Media cannot be held liable for damage that had not occurred during the existence of these copies.
16.2 After the Agreement has been completed, neither the Client nor Abovo Media have any obligation towards each other with regard to the materials and data used as referred to in 16.1 and the Product supplied by Abovo Media.
Article 17. Transfer of rights and obligations
The parties are not entitled to transfer their rights or obligations arising from an agreement to third parties without the prior written consent of the other party.
Article 18. Decommissioning
18.1 Abovo Media has the right to put products and services (temporarily) out of service and / or to limit their use if the client fails to fulfill an obligation towards Abovo Media or acts contrary to these general terms and conditions.
18.2 Abovo Media will inform the client of this in advance, unless this cannot reasonably be expected from Abovo Media.
18.3 The obligation to pay the amounts due also remains during the decommissioning.
18.4 Commissioning is resumed if the client has fulfilled its obligations within a period set by Abovo Media and has paid an amount determined for this to be put back into service again.
Article 19. Changes of the conditions
19.1 Abovo Media reserves the right to change or supplement these terms and conditions. Changes also apply to agreements already concluded with due observance of a period of 30 days after written notification of the change.
19.2 If the client does not want to accept a change in these terms and conditions, he can terminate the agreement until the date on which the new terms take effect, or on the date of receipt of the cancellation if this is after the effective date of the change.
Article 20. Applicable law and disputes
20.1 All legal relationships to which Abovo Media is a party are exclusively governed by Dutch law, even if an obligation is fully or partially implemented abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
20.2 The court in the place of business of Abovo Media has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, Abovo Media has the right to submit the dispute to the competent court according to the law.
20.3 Parties will only appeal to the courts after they have made every effort to resolve a dispute in mutual consultation.
Article 21 Final provision
21.1 These terms and conditions have been filed with the Kamer van Koophandel in North-West Holland, mentioned on the website www.abovomedia.nl and will be sent upon first request.
21.2 The most recently filed version or the version as it applied at the time of the establishment of the legal relationship with Abovo Media always applies