CAPE ROCK B.V.: The private company with limited liability CAPE ROCK B.V., having its registered office according to its Articles of Association in (1218 AP) Hilversum and having its principal place of business at Prinseneiland 20-H in Amsterdam. Chamber of Commerce: 50601814 / VAT: NL8197.71.685.B01.
Fee: the remuneration agreed between CAPE ROCK B.V. and the Client in return for carrying out the Activities.
Supplier: The person, partnership or company providing products and/or services to CAPE ROCK B.V.
Offer: The Activities specified to a greater or lesser extent that CAPE ROCK B.V. intends to carry out for the Client as well as the estimate of the associated costs.
Client: The party who gives an assignment to CAPE ROCK B.V.
Agreement: The agreement between CAPE ROCK B.V. and the Client and/or Supplier.
Activities: All services to be provided by CAPE ROCK B.V. for the Client and in particular the service provision in connection with developing the strategy, developing trademark identities, developing and carrying out branding and designing, developing and implementing advertisement and communication concepts.
2.1 These General Conditions are applicable to all legal relationships between CAPE ROCK B.V. and the Client including all Activities provided by CAPE ROCK B.V. and in particular the services as described in the Offer.
2.2 All stipulations in these General Conditions are also formulated for all managing directors of CAPE ROCK B.V. and all persons working for CAPE ROCK B.V. and/or who have been engaged by CAPE ROCK B.V.
2.3 Any deviations from these General Conditions will only be valid if they have explicitly been agreed in writing. CAPE ROCK B.V. explicitly rejects the applicability of the general (purchase) conditions applied by the Client.
3.1 CAPE ROCK B.V. will carry out the Agreement to the best of its understanding and ability and in accordance with the requirements of good workmanship.
3.2 In carrying out the Activities CAPE ROCK B.V. will observe the highest degree of care with regard to the interests of the Client. In particular, CAPE ROCK B.V. will observe secrecy with regard to all data and information provided by the Client in connection with the Agreement.
3.3 If and insofar as it is required for the proper performance of the Agreement, CAPE ROCK B.V. will be entitled to have the Activities carried out by third parties. To this end, the parties can arrange a fee further to be agreed.
3.4 The Client is aware and agrees that the Activities of CAPE ROCK B.V. do not include carrying out any investigation into the existence of patent rights, trademark rights, drawing or model rights, copyrights and portrait rights of third parties.
4.1 All Offers are entirely without obligation and CAPE ROCK B.V. will only be bound to an Offer if the respective Offer has been signed by the Client and has been received by CAPE ROCK B.V. within fourteen (14) days. CAPE ROCK B.V. will be entitled to revoke the Offer immediately after receipt of the acceptance.
4.2 The prices stated in the Offer are excluding VAT and other levies by the authorities as well as any (out of pocket) costs to be incurred in connection with the Agreement including despatch and administrative costs and travel expenses, unless otherwise stated in the Offer.
4.3 In the event that in performing the Agreement any deviations occur with regard to the Offer, CAPE ROCK B.V. must inform the Client of this as soon as possible.
5.1 The Agreement is formed at the moment that - either CAPE ROCK B.V. has received in return the Offer signed by the Client - or CAPE ROCK B.V. has begun to carry out the Activities with the Client's approval. The signed Offer, these General Conditions and any additional written agreements jointly form the entire representation of the rights and obligations of the parties and replace any previously written and verbal! estimates, announcements and all other correspondence.
5.2 If the acceptance differs, whether or not in minor points, from what has been stated in the Offer, CAPE ROCK B.V. will not be bound by this and the Agreement will not be formed in accordance with this different acceptance unless CAPE ROCK B.V. has indicated otherwise in writing.
5.3 Not meeting the expectations of the Client with regard to the Activities carried out by CAPE ROCK B.V., will not be a reason to review and/or carry out the Activities again free of charge.
5.4 In the event that the Client wants to amend the contents of the Agreement, the Client has to inform CAPE ROCK B.V. immediately in writing of the amendments it requires. The amendments in the Agreement must then be accepted in writing by CAPE ROCK B.V. All extra costs as a result of such amendments will be at the expense of the Client.
5.5 The Client must ensure that all data that CAPE ROCK B.V. has indicated are desirable or that the Client should reasonably understand are necessary for the performance of the Agreement must be provided to CAPE ROCK B.V. within due time. If the data required for the performance of the Agreement have not been provided to CAPE ROCK B.V. within due time, CAPE ROCK B.V. will be entitled to suspend the performance of the Agreement and charge the Client for the costs arising from this according to the usual rates.
5.6 CAPE ROCK B.V. will not be liable for loss of any nature whatsoever that has been caused by CAPE ROCK B.V. basing itself on the inaccurate and/or incomplete information or documentation provided by the Client.
6.1 The Agreement is entered into for an indefinite period of time unless it otherwise arises from the nature of the Agreement or the parties have explicitly agreed otherwise in writing.
6.2 In the event that in connection with the performance of the Activities a period has been agreed between CAPE ROCK B.V. and the Client, this period will only be an approximation unless explicitly agreed otherwise in writing. With regard to the agreed delivery times, CAPE ROCK B.V. does not offer any guarantee and any late delivery does not entitle the Client to compensation, dissolution of the Agreement or suspension of any obligation towards CAPE ROCK B.V.
7.1 In forming the Agreement the parties can agree a fixed Fee.
7.2 If no fixed Fee has been agreed, the Fee will be determined on the basis of the actual hours worked. The Fee will be calculated according to the usual hourly rates of CAPE ROCK B.V. applicable to the period in which the Activities have been performed.
7.3 CAPE ROCK B.V. reserves the right to charge a surcharge in the event that CAPE ROCK B.V. - at the request of the Client - performs its Activities or a part of them in the evening or in the weekend.
7.4 With regard to an Agreement with a term of more than four (4) weeks the costs payable will be charged periodically. In addition, CAPE ROCK B.V. will be entitled in connection with an Agreement with a Fee of at least 5,000 euros to invoice the Client for 50% of the Fee prior to the performance of the Activities.
7.5 All (commercial) production and (ether) media costs must have been received by CAPE ROCK B.V. from the Client before the moment at which CAPE ROCK B.V. is obliged to pay these costs to third parties. Postage costs and other distribution costs of advertising mail must have been received by CAPE ROCK B.V. from the Client before despatch/distribution.
7.6 CAPE ROCK B.V. is entitled to increase the Fee if it appears during the performance of the Activities that it cannot reasonably be expected of CAPE ROCK B.V. that CAPE ROCK B.V. carries out the agreed Activities for the Fee originally agreed.
7.7 CAPE ROCK B.V. will be entitled to set-off any price changes with the Client that occurred after the Agreement has been entered into.
7.8 The agreed price between CAPE ROCK B.V. and the Supplier as represented in the Agreement is a fixed price that can only be adjusted after the prior written consent from CAPE ROCK B.V.
8.1 The Client is obliged to pay to CAPE ROCK B.V. all invoices of CAPE ROCK B.V. within the statutory payment period applicable between companies in the Netherlands of thirty (30) days after the invoice date. Any objections to the amounts of the invoices will not suspend the payment obligation of the Client.
8.2 If the Client remains in default of payment within the period of thirty (30) days, the Client will be in default by operation of law. In that case, the Client will owe the statutory interest applicable in the Netherlands on the amount due and payable. The interest on the amount due and payable will be calculated from the moment that the Client is in default until the moment that the amount has been paid in full.
8.3 Any payment by CAPE ROCK B.V. will only become due after delivery and a proper performance by its counterpart of its obligations has taken place unless explicitly otherwise agreed in writing.
9.1 Any complaints about the Activities must be reported by the Client in writing within eight (8) days after discovery but not later than within fourteen (14) days after completion of the respective Activities. Such a notice of default must include an as accurate as possible description of the failure alleged by the Client so that CAPE ROCK B.V. will be able to respond adequately.
9.2 If at the discretion of CAPE ROCK B.V. a complaint is well founded, CAPE ROCK B.V. must be given the opportunity by the Client to carry out the Activities once again. Should it no longer be possible to perform the Activities again according to objective criteria, CAPE ROCK B.V. will only be liable within the limits of Clause 10.
10.1 Considering the nature of the Activities and the subjective assessment aspects playing a role in the Activities, CAPE ROCK B.V. will not be liable for any loss suffered by the Client as a result of any conduct by CAPE ROCK B.V. in performing the Agreement or otherwise, except if there is intention or gross negligence. Consequential loss, including lost profits or losses suffered will never be eligible for compensation.
10.2 In the event that CAPE ROCK B.V. is liable for the loss suffered by the Client, the loss that CAPE ROCK B.V. is obliged to compensate shall never exceed the invoice value of the Activities of which the defect has been the cause of the loss or - if this cannot be ascertained - the invoice value of the Activities which CAPE ROCK B.V. carried out for the Client at the time that the event causing the loss occurred less the out of pocket expenses with regard to what has been supplied.
10.3 The Client shall indemnify CAPE ROCK B.V. against any claims by third parties for loss associated with or arising from the Agreement. All this does not affect the duty of care of CAPE ROCK B.V. as meant in Clause 3.
10.4 The exclusions and limitations of liability as stated in this Clause as well as the indemnities as meant in Clause 13 are also stipulated for, and for the benefit of, the subordinates of CAPE ROCK B.V. and any other person of whose assistance CAPE ROCK B.V. makes use in carrying out the Activities.
10.5 The liability for Activities for which CAPE ROCK B.V. instructed a third party, is limited to the extent that this third party effectively indemnifies CAPE ROCK B.V.
11.1 Any intellectual property rights associated with or arising from the assignment given to CAPE ROCK B.V. and/or the Activities carried out by CAPE ROCK B.V. are at all times vested in CAPE ROCK B.V.
11.2 The Client will acquire - but only after the Client has fulfilled all its payment obligations and exclusively in the case that the Agreement has not been terminated prematurely - a licence to use anything that CAPE ROCK B.V. has created in the performance of the Activities for the Client, and as such has been chosen by the Client, for one (1) year in the Netherlands in the manner as determined in advance.
11.3 CAPE ROCK B.V. and the Client can determine pursuant to the Agreement that the geographic area and period of time of the rights as meant in Clause 11.2 will be extended.
11.4 The Client and CAPE ROCK B.V. can determine for each assignment that the rights meant in Clause 11.1 will be transferred to the Client by means of a deed or that the right of use will be extended to other forms of operation.
11.5 If during the Agreement the Supplier, whether or not in cooperation with third parties, creates copyright protected works, the Supplier will guarantee towards CAPE ROCK B.V. that the Supplier will transfer to CAPE ROCK B.V. the full, global, unlimited and unencumbered copyright of these works, at any rate with regard to the contribution to it by the Supplier and the third parties engaged by the Supplier, including all powers and rights that are granted or will be granted to it by law, such as but not limited to any right to reproduce these works or have them reproduced and disclose them anywhere in the world and perpetually for any purpose, in any way and in any form whatsoever, which are already known now or will be known in future, for the duration of the copyright, which transfer has been accepted by CAPE ROCK B.V.
11.6 The Supplier indemnifies CAPE ROCK B.V. against any and all claims by third parties in connection with the provisions set out in Clause 11.7.
11.7 The Supplier irrevocably waives any right to put up a defence against the disclosure of the works as meant in Clause 11.7 without stating its name, the disclosure of these works under any other name than its/his own and against any other change in the respective works (the so-called rights to personal recognition).
11.8 CAPE ROCK B.V. retains the right to use the knowledge increased by the performance of the Activities for other purposes insofar as no confidential information will be brought to the notice of any third parties.
11.9 CAPE ROCK B.V. is entitled to sign and/or use anything that has been created by CAPE ROCK B.V. for the promotion of its own organisation and service provision.
11.10 If the Activities consist (for instance) of organising an event, CAPE ROCK B.V. will exclusively be entitled to register the name of the event as a trademark. If such a trademark has been registered in the name of the Client, the Client shall at the first request transfer this trademark to CAPE ROCK B.V. free of charge.
12.1 The term force majeure means any circumstance on the basis of which any (further) fulfilment of the Agreement by CAPE ROCK B.V. cannot reasonably be required. This includes in any event - but not exclusively - loss of data as a result of a computer failure, a virus infection or computer hacking by third parties, machine breakdown and other calamities preventing or restricting the business operations of CAPE ROCK B.V.
12.2 In the event that CAPE ROCK B.V. is prevented by force majeure from carrying out all or part of the Activities, CAPE ROCK B.V. will be entitled without any judicial intervention, at its discretion, either to suspend the performance of the Activities or to consider the Agreement fully or partially dissolved, without CAPE ROCK B.V. being obliged to compensate any loss suffered by the Client.
12.3 In the event that at the time of a force majeure situation occurring CAPE ROCK B.V. has in the meantime already partly fulfilled its obligations to the Client arising from the Agreement and has partly performed Activities for the Client - and the Activities having already acquired an independent value - CAPE ROCK B.V. will be entitled to invoice the respective Activities separately. The Client will then be obliged to pay the respective invoice of CAPE ROCK B.V.
13.1 The Client indemnifies CAPE ROCK B.V. against any claims by third parties with regard to intellectual property rights to the materials or information provided by the Client that are being used in performing the Agreement.
13.2 If the Client has provided CAPE ROCK B.V. with information carriers, electronic files or software etc., the Client will guarantee that the information carriers, electronic files or software are free from viruses and defects.
14.1 Both parties are obliged to observe secrecy with regard to all confidential information they obtain from each other or from another source in connection with the Agreement. Information is considered confidential if this has been communicated as such by the other party or if this arises from the nature of the information.
14.2 If CAPE ROCK B.V. - pursuant to a statutory provision of a court decision - is obliged to provide any third parties indicated by law or competent court with confidential information and in this connection CAPE ROCK B.V. cannot invoke any statutory privilege or a privilege acknowledged or allowed by the competent court, CAPE ROCK B.V. will not be obliged to pay compensation or damages and the Client will not be entitled to dissolve the Agreement.
15.1 CAPE ROCK B.V. is entitled to terminate the Agreement in whole or in part without any notice of default being required and without any obligation to pay compensation or - at its discretion - to suspend the further performance of the Agreement, if:
15.2 In the cases specified in Clause 15.1 CAPE ROCK B.V. will be entitled to demand the Fee payable by the Client to CAPE ROCK B.V. immediately and in full.
15.3 The Client is obliged to inform CAPE ROCK B.V. immediately if a circumstance within the sense of Clause 15.1 occurs. In the event that a circumstance as meant in Clause 15.1 under e. occurs, the Client will be in default by operation of law and any debt to CAPE ROCK B.V. will become immediately due and payable.
16.1 Subject to the prior written consent of CAPE ROCK B.V. the Client will not be entitled to transfer in whole or in part the rights and obligations arising from the Agreement entered into under these General Conditions to any third parties.
17.1 These General Conditions are effective as from 1 January 2010 onwards.
17.2 In the event that any provision in these General Conditions would be invalid or would be annulled, this will not affect the validity of the other provisions. In that case CAPE ROCK B.V. and the Client will consult each other in order to agree new provisions to replace the invalid or annulled provisions, observing as much as possible the purpose and purport of the original provision.
17.3 The legal relationship between the Client and CAPE ROCK B.V. is governed by Dutch law. All disputes between the Client and CAPE ROCK B.V. which might arise as a result of or in connection with the Agreement will with the exclusion of any other be settled by the competent court in Amsterdam.
