Terms and conditions Capital Sports
Article 1: Definitions
In these general terms and conditions the following definitions shall apply:
User: Capital Sports is a trade name of Capital Advertising B.V. having its registered office and place of business in 's-Hertogenbosch;
Other party: the natural or legal person, or their legal successor, for whom services are provided by or on behalf of the user and/or work is contracted;
Presentation: a proposal developed by user, containing the offer of one or more concepts of the advertising means to be further produced by user for the benefit of the other party and/or his profession or company, taking into account the wishes of the other party;
The work: an advertising project developed by user, containing the means of advertising and/or services provided for the other party's profession or business or a specific part thereof;
Price: the monetary payment owed by the other party to the latter under any agreement with user or based on rates customary in the branch in which the user carries on his business;
Means of advertising: the literary, scientific, or artistic works as referred to in art. 10 of the Copyright Act 1912 (Act of September 23, 1912, S. 308), models, and other communicative goods produced by user for the public commendation of the profession or business of the other party, or a specific part thereof;
Force majeure: a shortcoming that cannot be attributed to the user because it cannot be attributed to his fault, nor is it for his account by the law, legal act or generally accepted practice, including the case where the user is unable to provide his services due to default or carelessness of third parties.
Article 2: Applicability
These general terms and conditions shall apply to all legal acts of user and shall be deemed to have been handed to the other party after an agreement as referred to in Article 4 has been concluded.
Notwithstanding the provisions of the previous paragraph, the other party shall be entitled to inspect these general terms and conditions either at the Chamber of Commerce and Industry in 's-Hertogenbosch, or to request the user to send a copy free of charge and without delay.
These general terms and conditions shall at all times prevail over those applied by the other party. Insofar as necessary, user hereby explicitly rejects the applicability of those general terms and conditions of the other party.
Article 3: Offers
All offers of user are without obligation, unless otherwise agreed upon in writing. An offer from user is therefore an invitation to make a deal.
Although user shall exercise due care in formulating its offers, the other party can never derive any justified confidence in the accuracy of the information contained therein, unless an agreement has been concluded in the manner stipulated in Article 4.
Article 4: Acceptance/content agreement
An agreement shall be established between the user and the other party about
a. a work: if the other party accepts an offer from user which may include an estimate of the price to be paid by the other party to user upon completion of the work and user confirms this acceptance, or if user otherwise accepts an assignment from the other party;
b. a presentation: if the other party commissions user to make a presentation and user accepts this commission, notwithstanding the possibility that written correspondence between the parties expressly shows, that a different kind of agreement (in different ways as shown above) has been concluded.
The contents of the agreement concluded according to the first paragraph, under a, shall be derived from the confirmation by user of the offer of user accepted by the other party. Although user shall take the utmost care to limit as much as possible the price to be charged to the other party after completion of the work, the other party cannot derive any rights or confidence from the estimate made by user as referred to in the first paragraph under a.
The content of the agreement established according to the first paragraph under b shall be derived from the wording of user's confirmation of the other party's order.
Article 5: Price
The price to be charged by user to the other party will be specified according to the rates and costs incurred by user. The final amount thus obtained shall be increased by turnover tax.
If during the term of the agreement there is a change in user's costs as a result of any provision in a collective labour agreement, law, decision or order by (semi) governmental authority (including foreign governments) of a mandatory nature, or if outside the sphere of influence of user such cost price increasing circumstances occur that in all reasonableness user can no longer be required to maintain the agreed price, the other party declares now for then to agree to a change in that price, which will be further communicated by user to the other party by means of the indication of objective standards.
Article 6: Payment
The price referred to in Article 6, first paragraph shall be paid by the other party within 14 days of the date of the invoice to be sent by user to the other party. The other party may never invoke discount or settlement.
If the other party fails to pay in time or in full within the period set by user in accordance with these terms and conditions, the other party shall be deemed to be in default by user and the full amount still outstanding in favour of user shall be immediately due and payable, while the other party shall furthermore be obliged to pay interest to the user, equal to a percentage, which shall be 2% above the then current legal interest rate, all this without prejudice to the right of user to claim dissolution of the agreement with damages or to suspend his obligations under the agreement, as further described in article 8.
The provisions of paragraph 2 shall also apply, on the understanding that the other party shall be in default immediately if:
a. the other party submits a request for a moratorium, is declared bankrupt or proceeds to divest itself of its assets;
b. the whole or part of the property of the other party is seized;
c. the other party ceases, disposes of or otherwise continues its business, or at least an essential part thereof.
All extrajudicial costs which must reasonably be incurred by the user in order to obtain payment from the other party after the other party has been in default, shall be at the expense of the other party and shall be calculated on the basis of the collection rate of the Netherlands Bar Association, with a minimum amount of € 250.= per invoice not (fully) paid.
Each payment by the other party shall first serve to settle any costs, damages and interest due and thereafter to discharge the oldest outstanding claim.
Article 7: Suspension/dissolution
In case of application of Article 6, second and third paragraphs, the user shall be entitled either to suspend the fulfilment of his obligations towards the other party, or to dissolve the agreement without judicial intervention being necessary, whereby compensation of the full damage suffered by user may be claimed.
Apart from the case mentioned in the first paragraph, user shall also be entitled to suspend the fulfilment of its obligations towards the other party if after the conclusion of the agreement circumstances become known which give user good reason to fear that the other party will not (fully) fulfill its obligations towards user, all this unless the other party pays an amount to be determined by user in advance or provides security for the price to be paid by the user in another way approved by user.
If the user is prevented by force majeure from performing its agreed services or delivering work, article 14 shall apply.
Article 8: Right of retentions/retention of title
User is entitled to retain the other party's goods until the price owed by the other party, or any other amount owed by the other party to user, including judicial and extrajudicial costs, have been paid to user in full.
If after a presentation no agreement is concluded with respect to a subsequent work, any advertising materials in the possession of the other party which have been manufactured by user must be immediately surrendered to him on penalty of an immediately payable fine of € 10,000, = without prejudice to user's right to claim full damages from the other party, all this unless otherwise agreed in writing.
Article 8a: Copyright etc.
The copyright, the right of drawing or model or any other intellectual property right with respect to any design, any working drawing, model or other design, shall be vested in user.
Unless otherwise agreed upon in writing, the other party acquires after the realization of an agreement and without prejudice to what is otherwise stipulated in this article, only the right to a once-only use for the purpose and scope as was specifically intended between parties at the time of the realization of the agreement.
The other party shall only be entitled to use any goods subject to intellectual property rights as referred to in the first paragraph of this article when all amounts due to user have been paid in full. If a payment term has not yet expired, any use shall automatically be deemed to take place under the resolutive condition that payment is not made in time and user shall later be entitled to still stop any use (or have it stopped).
The other party is not permitted to make changes (or have changes made) to a design of user without user's prior written permission. User will not refuse this permission on unreasonable grounds, but will also be given the opportunity by the other party to carry out these changes itself (or have them carried out) under its usual conditions.
Article 9: Complaints/liability
1. Any complaints must be made within 8 days of either the day on which the presentation was actually made, or the day on which the advertising medium in question was delivered to the other party, or the day on which a service was provided for the other party and the other party learned of this fact.
2. The other party's right referred to in the previous section will lapse if a means of advertising is used, processed or treated in full or in part by or on behalf of the other party or is supplied to third parties.
3. User is not liable for damage, of whatever nature or scope, that has arisen due to or in connection with the execution by or on behalf of user of what has been agreed with the other party, including negligence on the part of third parties engaged by user, unless user can be blamed for intent or gross negligence. In both the latter cases as well as if, in view of the circumstances of the case, the damage suffered by the other party as a result of user's default should be compensated by user according to standards of reasonableness and fairness, user's liability shall be expressly limited to a maximum of the amount of the price to be charged by him to the other party.
4. The other party shall fully indemnify user against claims by third parties who may assert (intellectual) (property) rights to the handling of advertising means prescribed by the other party to user. This obligation implies that the other party shall reimburse user in full for all costs to be reasonably incurred as a result, including those for legal and technical assistance.
5. If damage is caused by or as a result of the use of auxiliary items by user, user can never be held liable for this, as these have not been put into circulation by user, so that on the basis of section 6.3.3 of the New Civil Code there is no liability for user.
Article 10: Property of the other party
1. Any goods provided by other party to user shall be stored, used, treated and processed with care.
2. Notwithstanding the provisions of the previous paragraph, other party shall be entirely responsible for any loss or depreciation in value of its goods thus provided to user, unless user can be blamed for intent or gross negligence.
Article 11: Dispatch and transport of the accepted work
1. The costs of shipment and transport are part of the price to be charged by user to the other party.
2. The goods are at the risk of the other party from the moment that the shipment and/or transport commences, unless otherwise agreed in writing or the other party is a natural person not acting in the exercise of a profession or business.
Article 12: Purchase
1. The other party shall be obliged to accept the advertising material produced by the user immediately after being requested to do so by the user.
2. If the other party fails to comply with the obligation described in the first paragraph, he shall be in default of payment and must reimburse the user for all necessary costs incurred by the latter (including storage costs).
Article 13: Execution
1. User shall carry out its activities for the benefit of the other party at its own discretion and on dates and times determined by it, but as much as possible in consultation with the other party.
2. All times of delivery and dates on which services will be performed agreed upon between user and the other party are approximate and can therefore never be regarded as deadlines.
Article 14: Force majeure
1. In the event of force majeure, user shall be entitled to suspend its obligation to provide services. If user shall reasonably have to incur costs to undo and/or avoid (further) factors that prevent the execution of the agreed services, these costs must be reimbursed to user by the other party.
2. Without prejudice to the provisions of the first paragraph of this article, user shall be entitled to claim payment from the other party for that which was carried out by it in execution of the agreement entered into before the situation of force majeure occurred.
Article 15: Applicability of other regulations
In so far as the nature and content of its own general terms and conditions do not oppose them, the Rules for the Advertising Industry (last adopted 1990, to be requested from the Raad van Orde en Toezicht voor het Advertentiewezen, Joh. Vermeerstraat 14, 1071 DR Amsterdam, tel. 020 - 6649431) shall (additionally) apply to all legal acts of user, as well as the terms and conditions of delivery for the Graphic Industry, filed with the Registrar of the District Court of Amsterdam on August 13, 1981 under no. 188.
Article 16: Disputes/applicable law
1. All disputes concerning the contract concluded by the parties and these General Terms and Conditions shall be governed exclusively by Dutch law.
2. The matters referred to in the first paragraph shall, insofar as possible according to the mandatory rules of competence and unless otherwise stipulated, be submitted exclusively to the competent court in the district of 's-Hertogenbosch.
These general terms and conditions are filed with the Chamber of Commerce and Industry in 's-Hertogenbosch dated July 15, 1992.
Capital Sports as part of Capital Advertising
Het Zuiderkruis 23B
5215 MV 's-Hertogenbosch
