Terms & Conditions
1 Agreements, offers and confirmation
1.1 All agreements between adstream and the client are governed by Dutch law.
1.2 All offers are without commitment and are valid for six months. Prices quoted may be subject to change owing to unforeseen changes in the work. Prices are exclusive of VAT. The rates and offers quoted will not automatically apply to future commissions.
1.3 Commissions must be confirmed by the client in writing. If the client fails to do so but consents to adstream commencing the work commissioned, the terms of the offer will be deemed to have been agreed. Any subsequent oral agreements and stipulations will not be binding on adstream unless confirmed in writing.
2 Performance of the agreement
2.1 Adstream must make every effort to perform the work commissioned carefully, to promote the client’s interests and to achieve a result that is useful to the client. To the extent necessary, adstream must keep the client advised of the progress of the work.
2.2 The client must do whatever is reasonably necessary or required to enable adstream to deliver punctually and properly, in particular by supplying complete, sound and clear data or materials in a timely manner.
2.3 Unless otherwise agreed, the performance of tests, the application for permits and the assessment whether the client’s instructions comply with statutory or quality standards do not fall within the scope of the work commissioned to adstream.
2.4 Prior to handoff or publication, adstream must give the client the opportunity to check and approve the final copy draft or design proof. If adstream is to place orders with or give instructions to printers or other third parties, whether or not in the client’s name, the client must confirm his approval in writing at adstream’s request.
2.5 Any complaints to adstream must be filed in writing at the earliest possible time but not later than within ten business days after completion of the work commissioned, failing which the client will be deemed to have accepted the work commissioned in its entirety.
3 Engagement of third parties
3.1 Unless otherwise agreed, instructions to third parties to be given in the context of executing the work commissioned will be given by or on behalf of the client. At the client’s request adstream may act as an agent for the client’s account and risk. Such services are charged at adstream’s standard hourly rate for project management.
3.2 If adstream provides an estimate of third-party costs at the client’s request, such estimate will be an approximation only. If required, adstream may seek quotations from third parties on the client’s behalf.
3.3 If adstream procures material or services from third parties in the performance of the work commissioned, for adstream’s own account and risk and on the basis of an express agreement, the general conditions of such supplier with regard to such material or services will also apply to the client.
4 Intellectual and other property rights
4.1 Unless otherwise agreed, all intellectual property rights arising from the work commissioned including patents, design rights and copyrights will vest in adstream. If any of such rights can be acquired only by registration, adstream will have the sole and exclusive power to effect such registration.
4.2 Unless otherwise agreed, the work commissioned does not include conducting searches for the existence of rights, including patents, trademark rights, drawing or design rights, copyrights or portrait rights of third parties. The same applies to any investigation into the possibility of such forms of protection for the client.
4.3 Unless the work is not suitable for that purpose, adstream will at all times be entitled to set its name on or in or to remove it from the work (or to have his name imprinted on or in or removed from the work).
4.4 Unless otherwise agreed, all design concepts, illustrations, templates and other data files made by adstream in the course of executing the design will remain adstream’s property, irrespective of whether they were made available to the client or to third parties.
4.5 Upon completion of the work commissioned, neither the client nor adstream will have any obligation to retain any of the materials and data used.
5 Design Use and licence
5.1 Once the client has fulfilled all his obligations under the agreement with adstream, he will acquire an exclusive licence to use the design solely for purposes of publication and reproduction as such purposes were agreed when the work was commissioned. If no such specific purposes have been agreed, the licence will be limited to that manner of use of the design on which firm intentions existed on the date when the work was commissioned. Such intentions must have been verifiably stated to adstream prior to the conclusion of the agreement.
5.2 Without prior written approval from adstream, the client will not be entitled to any use of the design that is broader or different from the use agreed. In the event of broader or different use on which no agreement was reached, including any amendment, mutilation or infringement on the provisional or final design, the designer will be entitled to compensation due to infringement of his/her rights of at least three times the agreed fee, or a fee that is reasonably and fairly proportional to the infringement committed, without prejudice to the designer’s right to claim reimbursement of the damage actually incurred.
5.3 The client will not (or no longer) be permitted to use the results made available and any licence granted to the client in the context of the work commissioned will lapse:
a. from the moment that the client fails to fulfil his payment or other obligations under the agreement or to do so in full, or is otherwise in default, unless the default is insignificant by reference to the overall scope of the work;
b. if the work commissioned is terminated early for any reason whatsoever, unless the consequences are contrary to the principles of reasonableness and fairness.
5.4 Adstream may use the design at its discretion for his own publicity or promotional purposes, with due observance of the client’s interests.
6 Fees and additional costs
6.1 In addition to payment of the agreed fee, adstream will be entitled to reimbursement of any external costs incurred in the performance of the work commissioned.
6.2 If adstream is required to perform more or other work due to late delivery or non-delivery of complete, sound and clear data and/or materials, or any change or error in instructions or briefings, such additional work will be charged separately on the basis of adstream’s usual fees.
6.3 If the fee to be paid is in any way subject to facts or circumstances to be evidenced by the client’s accounting records, adstream will be entitled upon receiving a statement of account from the client to have the client’s accounting records audited by an accountant to be selected by adstream. If the results of the accountant’s audit differ more than 2% or EUR 100 from the client’s report and statement of account, the costs of the audit will be for the client’s account.
7.1 Payments must be made within 14 days of the invoice date. If adstream has not received payment (or payment in full) at the end of that term, the client will be in default and will owe interest at the statutory rate. All costs incurred by adstream in connection with overdue payments, such as costs of litigation and judicial and extrajudicial costs, including the cost of legal assistance, bailiffs and debt collection agencies, will be for the client’s account. The extrajudicial costs will be not less than 10% of the invoice amount, with a minimum of € 150.
7.2 Adstream will have the right to invoice the client at monthly intervals for work performed and costs incurred in the performance of the work commissioned.
7.3 The client will pay the amounts due to adstream without any reduction or set-off, save for settlement against adjustable advance payments relating to the agreement which the client may have made to adstream. The client is not entitled to suspend payment of invoices for work that has already been performed.
8 Notice of termination and dissolution of an agreement
8.1 If the client gives notice of termination of an agreement, he must pay adstream’s fee and the costs incurred in connection with the work performed until that date.
8.2 If the agreement is terminated by adstream on the grounds of breach by the client in the performance of the agreement, the client must pay adstream’s fee and the costs incurred in connection with the work performed until that date. In this context any conduct by the client on the grounds of which adstream cannot reasonably be required to complete the work commissioned will also be regarded as breach.
8.3 Both adstream and the client will have the right to terminate the agreement in whole or in part with immediate effect if the other party is declared bankrupt or is granted a suspension of payments (whether or not provisional). If the client is declared bankrupt, adstream will have the right to terminate the right of use granted, unless the consequences would be contrary the principles of reasonableness and fairness.
8.4 In the event of termination by the client on the grounds of breach in the performance of adstream’s obligations, the performance already completed and the related payment obligation will not be subject to cancellation, unless the client provides evidence that adstream is in default of that performance. Amounts that adstream has invoiced before the dissolution for work performed or delivered properly under the agreement will remain payable in full and will fall due immediately upon termination.
8.5 If adstream’s work consists of recurrently performing work of a similar nature, the agreement in question will be valid for an indefinite period of time, unless otherwise agreed in writing. Such agreement may be terminated only by written notice given with due observance of a reasonable notice period of not less than three months.
9 Warranties and indemnities
9.1 Adstream warrants that it is the author of the designs it supplies to the client, within the meaning of the Auteurswet (Dutch Copyright Act) and as the copyright owner has the power of disposition of the work.
9.2 The client indemnifies adstream against any third-party claim or action arising from the application or use of designs it creates.
9.3 The client indemnifies adstream against any claim or action relating to intellectual property rights in materials or information supplied by the client and used in the performance of the work commissioned.
10.1 Adstream will not be liable for:
a. errors or defects in materials supplied by the client;
b. misunderstandings, errors or defects in the performance of the agreement if such were caused by acts of the client, for example late delivery or nondelivery of complete, sound and clear information and/or materials;
c. errors or defects by third parties engaged by or on behalf of the client;
d. inaccuracies in offers made by suppliers, or prices quoted by suppliers being exceeded;
e. errors or defects in the design or errors in the text/data if the client has given his approval in accordance with the provisions of Article 2.4 or has had the opportunity to perform an inspection and has declined to do so;
10.2 Adstream will be liable only for direct damage attributable to adstream. Direct damage will include only:
a. reasonable costs to assess the cause and extent of the damage, to the extent that such assessment concerns damage within the meaning of these general conditions;
b. any reasonable costs necessarily incurred to have adstream’s defective performance conform to the agreement; and
c. reasonable costs incurred to prevent or limit the damage, to the extent that the client demonstrates that those costs led to a limitation of the direct damage referred to in these general conditions.
Adstream’s liability for all other damage, such as indirect damage, including consequential damage, loss of profits, mutilated or lost data or materials, or damage due to business interruption is hereby excluded.
10.3 Save in the event of intent or wilful recklessness by adstream, adstream’s liability for damage or loss arising from any wrongful act committed against the client will be limited to the amount invoiced for the portion of the work performed, less the costs incurred by adstream in the engagement of third parties.
10.4 Any and all liability will expire twelve months from the date of completion of the work commissioned.