Terms and Conditions

GENERAL TERMS AND CONDITIONS CREAM PR
DEFINITIONS
THE FOLLOWING TERMS ARE USED IN THESE GENERAL TERMS AND CONDITIONS: CREAM PR: CREAM PR IS A TRADE NAME OF ANA COMMUNICATIE B.V. AND IS LISTED IN THE COMMERCIAL REGISTER OF THE CHAMBER OF COMMERCE UNDER NUMBER 17142191 AND IS ESTABLISHED AT VAN HALLSTRAAT 294 IA IN (1051 HM) AMSTERDAM, FURTHER HEREIN REFERRED TO AS: ‘CREAM PR’. CREAM PR ALSO HAS ITS SHOWROOM AT THIS ADDRESS.
CLIENT: THE COUNTERPARTY OF CREAM PR.
1. APPLICABILITY OF TERMS AND CONDITIONS
1.1 WITH THE EXCLUSION OF ANY OTHER CONDITIONS, THESE TERMS AND CONDITIONS APPLY TO ALL OFFERS AND AGREEMENTS WHEREBY CREAM PR SUPPLIES PRODUCTS AND/OR SERVICES OF ANY NATURE WHATSOEVER TO THE CLIENT UNLESS EXPLICITLY OTHERWISE AGREED BETWEEN THE PARTIES IN WRITING.
1.2 CREAM PR IS ENTITLED TO ENGAGE THIRD PARTIES IN CARRYING OUT THE AGREEMENT. ALL RIGHTS AND ENTITLEMENTS AS STIPULATED IN THESE TERMS AND CONDITIONS AND ANY FURTHER AGREEMENTS FOR THE BENEFIT OF CREAM PR, WILL ALSO APPLY TO THE BENEFIT OF THIRD PARTIES ENGAGED BY CREAM PR.
2. OFFERS AND AGREEMENTS
2.1 ALL OFFERS BY CREAM PR ARE WITHOUT ANY OBLIGATION AND WILL BE EFFECTIVE DURING THE PERIOD STATED IN THEM OR FOR AS LONG AS STOCKS LAST.
2.2 AGREEMENTS BETWEEN CREAM PR AND THE CLIENT WILL BE FORMED BY A WRITTEN CONFIRMATION BY CREAM PR, INCLUDING A CONFIRMATION BY E-MAIL, OR BY THE CLIENT SIGNING THE OFFER.
2.3 A QUOTATION GIVING A PART PRICE PER PART DOES NOT ENTITLE THE CLIENT TO AND WILL NOT OBLIGE CREAM PR TO PERFORM ONLY A PART OF THE ASSIGNMENT FOR THE ASSOCIATED PART OF THE QUOTED PRICE. OFFERS OR QUOTATIONS ARE NOT AUTOMATICALLY APPLICABLE TO FUTURE ASSIGNMENTS.
3. CONTRACT DURATION AND PERFORMANCE OF THE AGREEMENT
3.1 THE AGREEMENT BETWEEN CREAM PR AND THE CLIENT IS ENTERED INTO FOR AN INDEFINITE PERIOD OF TIME UNLESS OTHERWISE ARISES FROM THE NATURE OF THE AGREEMENT OR IF THE PARTIES AGREE OTHERWISE IN WRITING.
3.2 IF A PERIOD HAS BEEN AGREED OR STATED FOR THE PERFORMANCE OF CERTAIN ACTIVITIES OR FOR THE DELIVERY OF CERTAIN ITEMS, THIS WILL NEVER CONSTITUTE A DEADLINE. IN THE EVENT THAT A PERIOD HAS BEEN EXCEEDED, THE CLIENT SHOULD THEREFORE GIVE CREAM PR NOTICE OF DEFAULT IN WRITING. IN THIS CONNECTION CREAM PR SHOULD BE OFFERED A FURTHER REASONABLE PERIOD IN ORDER TO PERFORM THE AGREEMENT.
3.3 CREAM PR WILL CARRY OUT THE AGREEMENT TO THE BEST OF ITS ABILITY AND UNDERSTANDING AND IN ACCORDANCE WITH THE REQUIREMENTS OF GOOD WORKMANSHIP. ALL THIS SHOULD TAKE PLACE ON THE BASIS OF THE LATEST TECHNOLOGY KNOWN AT THE TIME.
3.4 CREAM PR IS ENTITLED TO HAVE CERTAIN ACTIVITIES PERFORMED BY THIRD PARTIES. THE APPLICABILITY OF SECTIONS 7:404, 7:407 SUBSECTION 2 AND 7:409 OF THE DUTCH CIVIL CODE IS EXPLICITLY EXCLUDED.
3.5 IF UNDER THE TERMS OF THE ASSIGNMENT WORK IS EXECUTED BY CREAM PR OR THIRD PARTIES USED BY CREAM PR AT THE LOCATION OF THE CLIENT OR A LOCATION INDICATED BY THE CLIENT, THE CLIENT SHALL PROVIDE TO THE STAFF ANY FACILITIES REQUIRED WITHIN REASON WITHOUT ANY CHARGE.
3.6 THE DELIVERY WILL BE EX WORKS OF CREAM PR. THE CLIENT IS OBLIGED TO BUY THE ITEMS AT THE MOMENT THEY ARE MADE AVAILABLE TO IT. IF THE CLIENT REFUSES TO BUY THE ITEMS OR IS IN DEFAULT OF PROVIDING INFORMATION OR INSTRUCTIONS NECESSARY FOR THE DELIVERY, CREAM PR WILL BE ENTITLED TO STORE THE ITEMS AT THE EXPENSE AND RISK OF THE CLIENT. THE RISK OF LOSS, DAMAGE OR DECREASE IN VALUE WILL TRANSFER TO THE CLIENT AT THE MOMENT THAT THE ITEMS ARE AVAILABLE TO THE CLIENT.
3.7 CREAM PR IS ENTITLED TO CARRY OUT THE AGREEMENT IN VARIOUS STAGES AND TO INVOICE THE PART THUS CARRIED OUT SEPARATELY.
3.8 IF THE AGREEMENT IS PERFORMED IN STAGES, CREAM PR CAN SUSPEND THE PERFORMANCE OF THOSE PARTS BELONGING TO A NEXT STAGE UNTIL THE CLIENT HAS APPROVED IN WRITING THE RESULTS OF THE PREVIOUS STAGE.
3.9 THE CLIENT MUST ENSURE THAT ALL DATA WHICH CREAM PR INDICATES IS NECESSARY OR WHICH THE CLIENT REASONABLY OUGHT TO UNDERSTAND IS NECESSARY FOR THE PERFORMANCE OF THE AGREEMENT, IS PROVIDED TO CREAM PR WITHIN DUE TIME. IF CREAM PR HAS NOT BEEN PROVIDED WITH THE DATA REQUIRED FOR THE PERFORMANCE OF THE AGREEMENT WITHIN DUE TIME CREAM PR WILL BE ENTITLED TO SUSPEND THE AGREEMENT AND/OR CHARGE THE CLIENT FOR THE EXTRA COSTS ARISING FROM THE DELAY IN ACCORDANCE WITH THE USUAL RATES THEN APPLICABLE. THE PERFORMANCE PERIOD WILL COMMENCE NO SOONER THAN AFTER THE CLIENT HAS PROVIDED CREAM PR WITH THE DATA.
3.10 THE CLIENT WARRANTS THE ACCURACY OF THE INFORMATION IT PROVIDES AND GUARANTEES THAT THE MATERIAL IT SUPPLIES DOES NOT INFRINGE THE RIGHTS OF THIRD PARTIES. CREAM PR IS NOT LIABLE FOR LOSS OF ANY NATURE WHATSOEVER DUE TO CREAM PR BASING ITSELF ON INACCURATE AND/OR INCOMPLETE DATA PROVIDED BY THE CLIENT.
4. CHANGE OF CIRCUMSTANCES AND FORCE MAJEURE
4.1 IF AFTER THE AGREEMENT HAS BEEN FORMED THE PRICES OF RAW MATERIALS, WAGES, IMPORT DUTIES, TAXES OR OTHER EXTERNAL COSTS RISE (WHETHER OR NOT AS A RESULT OF CURRENCY EXCHANGE RATE FLUCTUATIONS), CREAM PR WILL BE ENTITLED TO ADJUST THE PURCHASE PRICE TO THESE INCREASES. IN THAT CASE THE CLIENT WILL BE ENTITLED TO DISSOLVE THE AGREEMENT WITHIN 8 DAYS AFTER CREAM PR NOTIFIED THE INCREASE, UNLESS IT RELATES TO A PRICE INCREASE AS A RESULT OF A STATUTORY PRICE INCREASE.
4.2 NEITHER PARTY IS OBLIGED TO FULFIL ANY OBLIGATIONS IF THE PARTY IS PREVENTED FROM DOING SO AS A RESULT OF FORCE MAJEURE. THE TERM FORCE MAJEURE ALSO MEANS A (NON-)ATTRIBUTABLE FAILURE OF THE SUPPLIERS OF CREAM PR.
4.3 IF ANY FORCE MAJEURE PERIOD LASTS LONGER THAN TWO MONTHS, EITHER PARTY SHALL BE ENTITLED TO TERMINATE THE AGREEMENT BY A WRITTEN NOTICE. WHAT HAS ALREADY BEEN PERFORMED PURSUANT TO THE AGREEMENT WILL THEN BE SETTLED PROPORTIONALLY WITHOUT THE PARTIES BEING FURTHER OBLIGED TO PAY ANY COMPENSATION.

5 RETENTION OF TITLE
5.1 ALL PRODUCTS SUPPLIED REMAIN THE PROPERTY OF CREAM PR UNTIL THE CLIENT HAS FULFILLED ALL ITS OBLIGATIONS TOWARDS CREAM PR UNDER THE AGREEMENT.
5.2 ITEMS SUPPLIED BY CREAM PR WHICH ARE COVERED BY THE RETENTION OF TITLE PURSUANT TO PARAGRAPH 1, SHALL NOT BE RESOLD AND SHALL NEVER BE USED AS A MEANS OF PAYMENT. THE CLIENT IS NOT ENTITLED TO PLEDGE THE ITEMS COVERED BY THE RETENTION OF TITLE OR TO ENCUMBER THEM IN ANY OTHER WAY.
5.3 IN THE EVENT THAT CREAM PR WANTS TO EXERCISE ITS OWNERSHIP RIGHTS INDICATED IN THIS CLAUSE, THE CLIENT GIVES IN ADVANCE UNCONDITIONAL AND IRREVOCABLE CONSENT TO CREAM PR AND THIRD PARTIES TO BE INDICATED BY CREAM PR TO ACCESS ALL THOSE PLACES WHERE THE PROPERTIES OF CREAM PR ARE SITUATED AND TO TAKE BACK THOSE ITEMS.
6 WARRANTIES, RESEARCH AND COMPLAINTS, PERIOD OF LIMITATION
6.1 THE ITEMS TO BE SUPPLIED BY CREAM PR MUST MEET THE USUAL REQUIREMENTS AND STANDARDS WHICH CAN REASONABLY BE IMPOSED ON THEM AT THE TIME OF DELIVERY AND IN THE NORMAL USE FOR WHICH THEY ARE INTENDED IN THE NETHERLANDS. THE WARRANTY MENTIONED IN THIS CLAUSE IS APPLICABLE TO ITEMS INTENDED FOR USE WITHIN THE NETHERLANDS. IN THE EVENT OF USE OUTSIDE THE NETHERLANDS THE CLIENT ITSELF HAS TO VERIFY WHETHER THEIR USE IS SUITABLE FOR USE THERE AND COMPLIES WITH THE CONDITIONS IMPOSED ON THEM. IN THAT CASE CREAM PR CAN STIPULATE OTHER WARRANTY AND OTHER CONDITIONS WITH REGARD TO THE ITEMS TO BE SUPPLIED OR THE ACTIVITIES TO BE CARRIED OUT.
6.2 THE WARRANTY MENTIONED IN PARAGRAPH 1 OF THIS CLAUSE IS EFFECTIVE FOR A PERIOD OF TWO MONTHS AFTER THE DELIVERY UNLESS ARISING OTHERWISE FROM THE NATURE OF THE ITEMS DELIVERED OR IF THE PARTIES HAVE AGREED OTHERWISE. IF THE WARRANTY PROVIDED BY THE USER RELATES TO AN ITEM WHICH WAS MANUFACTURED BY A THIRD PARTY, THE WARRANTY WILL BE RESTRICTED TO THE WARRANTY ON THE ITEM AS PROVIDED BY THE MANUFACTURER OF THE ITEM UNLESS OTHERWISE AGREED.
6.3 ANY FORM OF WARRANTY WILL LAPSE IF A DEFECT HAS OCCURRED AS A CONSEQUENCE OF OR AS A RESULT OF ITS INCOMPETENT OR IMPROPER USE, OR USE AFTER THE BEST BEFORE DATE, ITS INCORRECT STORAGE OR ITS MAINTENANCE BY THE CLIENT AND/OR BY THIRD PARTIES, WHEN WITHOUT THE WRITTEN CONSENT OF CREAM PR THE CLIENT OR THIRD PARTIES HAVE MADE CHANGES OR TRIED TO MAKE CHANGES TO THE ITEM, OTHER ITEMS HAVING BEEN CONNECTED TO IT WHICH SHOULD NOT BE CONNECTED TO IT OR IF THEY WERE PROCESSED OR WORKED IN A MANNER OTHER THAN THE PRESCRIBED ONE. NEITHER WILL THE CLIENT BE ENTITLED TO WARRANTY IF THE DEFECT ORIGINATED BY OR IS THE CONSEQUENCE OF CIRCUMSTANCES WHICH ARE BEYOND CREAM PR’S CONTROL INCLUDING WEATHER CONDITIONS (SUCH AS FOR INSTANCE, BUT NOT LIMITED TO, EXTREME RAINFALL OR TEMPERATURES) ETC.
6.4 THE CLIENT IS OBLIGED TO EXAMINE THE DELIVERED ITEMS (OR HAVE THEM EXAMINED) IMMEDIATELY AT THE MOMENT THE ITEMS ARE PROVIDED TO IT OR THE ACTIVITIES CONCERNED HAVE BEEN CARRIED OUT RESPECTIVELY. IN THIS CONNECTION THE CLIENT SHOULD EXAMINE WHETHER THE QUALITY AND/OR QUANTITY OF THE ITEMS SUPPLIED CORRESPONDS WITH WHAT HAS BEEN AGREED AND MEETS THE REQUIREMENTS AGREED BY THE PARTIES IN THIS RESPECT. ANY VISIBLE DEFECTS MUST BE REPORTED IN WRITING TO CREAM PR WITHIN SEVEN DAYS AFTER THE DELIVERY. ANY NON-VISIBLE DEFECTS MUST BE REPORTED IN WRITING TO CREAM PR IMMEDIATELY BUT IN ANY EVENT NOT LATER THAN WITHIN TWO WEEKS AFTER THEY HAVE BEEN DISCOVERED.
6.5 THE NOTIFICATION MUST INCLUDE A DESCRIPTION OF THE DEFECT WHICH IS AS DETAILED AS POSSIBLE SO THAT CREAM PR IS ABLE TO RESPOND ADEQUATELY. THE CLIENT MUST GIVE CREAM PR THE OPPORTUNITY TO EXAMINE A COMPLAINT (OR HAVE IT EXAMINED).
6.6 IF THE CLIENT LODGES A COMPLAINT WITHIN DUE TIME, THIS WILL NOT SUSPEND ITS PAYMENT OBLIGATION. IN THAT CASE THE CLIENT WILL ALSO REMAIN OBLIGED TO BUY AND PAY FOR OTHER ITEMS ORDERED AND TO ABIDE BY WHAT IT HAS ASSIGNED TO CREAM PR.
6.7 IF A FAULT IS NOTIFIED AFTER THIS PERIOD, THE CLIENT WILL NO LONGER HAVE THE RIGHT TO RECOVERY, REPLACEMENT OR COMPENSATION.
6.8 IF IT IS AN ESTABLISHED FACT THAT AN ITEM IS DEFECTIVE AND A COMPLAINT WAS LODGED WITHIN DUE TIME, CREAM PR WILL REPLACE OR ENSURE THE REPAIR OF THE DEFECTIVE ITEM OR PAY THE CLIENT ALTERNATIVE COMPENSATION FOR IT, THIS AT CREAM PR’S DISCRETION, WITHIN A REASONABLE PERIOD AFTER THE DEFECTIVE ITEM HAS BEEN RETURNED TO CREAM PR OR, IF RETURNING THE ITEM IS NOT REASONABLY POSSIBLE, AFTER A WRITTEN NOTICE BY THE CLIENT WITH REGARD TO THE DEFECT. IN THE EVENT OF REPLACEMENT, THE CLIENT IS OBLIGED TO RETURN THE REPLACED ITEM TO CREAM PR AND TO PROVIDE CREAM PR WITH THE TITLE TO IT UNLESS OTHERWISE INDICATED BY CREAM PR.
6.9 IF IT BECOMES AN ESTABLISHED FACT THAT A COMPLAINT IS UNFOUNDED, THE ASSOCIATED COSTS CAUSED BY THIS, INCLUDING THE COSTS OF EXAMINATION INCURRED ON THE PART OF CREAM PR, WILL BE FULLY AT THE EXPENSE OF THE CLIENT.
6.10 AFTER THE WARRANTY PERIOD HAS LAPSED THE CLIENT WILL BE CHARGED FOR ALL THE COSTS OF REPAIR OR REPLACEMENT INCLUDING ADMINISTRATIVE, SHIPPING AND CALL-OUT CHARGES.
6.11 CONTRARY TO THE STATUTORY PERIODS OF LIMITATION, THE PERIOD OF LIMITATION FOR ALL CLAIMS AND DEFENCES WITH REGARD TO CREAM PR AND THE THIRD PARTIES INVOLVED BY CREAM PR IN THE PERFORMANCE OF AN AGREEMENT, AMOUNTS TO ONE YEAR.
7. SUSPENSION AND DISSOLUTION
7.1. APART FROM THE PROVISIONS IN THE EVENT OF FORCE MAJEURE CREAM PR WILL BE ENTITLED TO (PARTLY) SUSPEND THE PERFORMANCE OF ITS OBLIGATIONS UNDER ALL AGREEMENTS EFFECTIVE BETWEEN THE PARTIES OR TO DISSOLVE THESE AGREEMENTS IN WHOLE OR IN PART WITHOUT A NOTICE OF DEFAULT OR JUDICIAL INTERVENTION BEING REQUIRED:
A. IF THE CLIENT IS IN DEFAULT OR CREAM PR HAS GOOD REASONS TO FEAR THAT THE CLIENT WILL NOT FULFIL ITS OBLIGATIONS OR NOT FULFIL THEM FULLY AND/OR NOT IN A TIMELY MANNER;
B. IN THE EVENT OF A WINDING-UP, OF (AN APPLICATION FOR) A MORATORIUM, BANKRUPTCY OR DEBTS RESCHEDULING OR ANY OTHER CIRCUMSTANCE BY WHICH THE BUYER LOSES THE FREE DISPOSAL OF HIS ASSETS; OR
C. IF CIRCUMSTANCES OCCUR DUE TO WHICH FULFILMENT OF THE AGREEMENT IS IMPOSSIBLE OR CREAM PR CANNOT REASONABLY BE REQUIRED TO MAINTAIN THE AGREEMENT UNCHANGED.
7.2. IN ADDITION, IN THE CASES REFERRED TO IN THE FIRST PARAGRAPH OF THIS CLAUSE ANY AND ALL OBLIGATIONS OF THE CLIENT WILL BECOME DUE AND PAYABLE AND CREAM PR WILL NOT BE OBLIGED TO PAY ANY COMPENSATION.

8. PRICES AND PAYMENT
8.1 REMUNERATION OF CREAM PR IS BASED ON HOURLY RATES UNLESS ANOTHER MANNER OF REMUNERATION HAS BEEN AGREED. APART FROM THE AGREED FEE, THE COSTS INCURRED BY CREAM PR FOR THE PERFORMANCE OF THE ASSIGNMENT WILL ALSO BE ELIGIBLE FOR REIMBURSEMENT. CREAM PR WILL ALWAYS INVOICE ITS FEE AND COSTS PERIODICALLY IN ADVANCE.
8.2 CREAM PR IS ENTITLED TO ADJUST ITS HOURLY RATES PERIODICALLY. THE CLIENT SHALL BE INFORMED OF THIS WITHIN DUE TIME.
8.3 IF CREAM PR ENGAGES THIRD PARTIES FOR THE PERFORMANCE OF THE ASSIGNMENT, THE CLIENT WILL BE CHARGED THE ASSOCIATED COSTS. CREAM PR IS ENTITLED TO DEMAND A (PERIODIC) ADVANCE FOR THESE EXTERNAL COSTS OR TO INVOICE THEM IN ADVANCE IN WHOLE OR IN PART. IF REQUIRED CREAM PR CAN INVOICE BUDGETED OUT-OF-POCKET EXPENSES, SUCH AS FOR BUYING MEDIA AND INFLUENCER FEES, FOR INSTANCE AS FOLLOWS: 50% AFTER BUDGET APPROVAL, 40% AFTER PUBLICATION/CONTENT COMPLETION, 10% ON THE BASIS OF ACTUAL COSTS.
8.4 INSOFAR AS NOT EXPLICITLY OTHERWISE AGREED, ALL PRICES ARE EXCLUDING VAT AND ANY DISPATCH, TRANSPORT, POSTAGE COSTS AND OTHER EXPENSES.
8.5 THE CLIENT MUST PAY THE AMOUNTS PAYABLE TO CREAM PR WITHOUT ANY DISCOUNT OR SETOFF, SUBJECT TO DEDUCTION OF THE ADVANCE PAYMENTS RELATING TO THE AGREEMENT TO BE SETTLED AS MEANT IN PARAGRAPH 3 OF THIS CLAUSE, WHICH THE CLIENT MADE TO CREAM PR.
8.6 ALL INVOICES SHALL BE PAID BY THE CLIENT WITHIN 14 DAYS AFTER THE INVOICE DATE UNLESS THE PARTIES HAVE AGREED ANOTHER PAYMENT PERIOD IN WRITING. IF THE CLIENT DOES NOT PAY WITHIN DUE TIME HE WILL BE IN DEFAULT AND HE WILL OWE INTEREST OF 1.5% PER MONTH ON THE DUE AND PAYABLE AMOUNT COMMENCING ON THE DEFAULT DATE, UNLESS THE STATUTORY COMMERCIAL INTEREST RATE IS HIGHER, IN WHICH CASE THE CLIENT WILL OWE THE STATUTORY COMMERCIAL INTEREST RATE (THE STATUTORY INTEREST RATE FOR BUSINESS TRANSACTIONS).
8.7 IN ADDITION, THE CLIENT WILL BE OBLIGED TO COMPENSATE ALL LOSSES WHICH CREAM PR HAS SUFFERED INCLUDING THOSE DUE TO EXTRAJUDICIAL COLLECTION COSTS AND COURT COSTS, INCLUDING THE COSTS FOR THE BAILIFF, COURT REGISTRY AND OTHER USUAL COSTS.
8.8 THE EXTRAJUDICIAL COLLECTION COSTS WILL BE ESTIMATED AT 10% OF THE PRINCIPAL SUM WITH A MINIMUM OF €250, AT ANY RATE AT THE AMOUNT THAT IS USUAL ACCORDING TO THE RULES IN THE DUTCH COLLECTION PRACTICE (CURRENTLY THE ‘VOORWERK II’ REPORT). IF AND INSOFAR AS THE ACTUAL EXTRAJUDICIAL COLLECTION COSTS ARE HIGHER AND THEY ARE REASONABLY INCURRED, CREAM PR WILL BE ENTITLED TO CLAIM THESE HIGHER COSTS FROM THE CLIENT. ANY OBJECTIONS TO THE INVOICE OF CREAM PR MUST BE NOTIFIED IN WRITING TO CREAM PR AS SOON AS POSSIBLE, BUT IN ANY EVENT WITHIN TEN WORKING DAYS AFTER THE DATE OF THE INVOICE. THESE OBJECTIONS WILL NEVER GIVE THE CLIENT ANY GROUND FOR SUSPENDING PAYMENT OF THE INVOICE. AFTER THE SAID PERIOD HAS ELAPSED THE CLIENT WILL HAVE FORFEITED ITS RIGHTS IN THIS RESPECT.
8.9 ALL CLAIMS BY CREAM PR ON THE CLIENT WILL BECOME IMMEDIATELY DUE AND PAYABLE IN THE CASES REFERRED TO UNDER 7.1 UNDER A, B AND C.

9. PROHIBITION OF PREMATURE TERMINATION/NOTICE
EXCEPT INSOFAR AS CREAM PR FAILS ATTRIBUTABLY IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE AGREEMENT, AND EXCEPT INSOFAR AS THE PARTIES HAVE EXPLICITLY AGREED OTHERWISE, THE CLIENT IS NOT ENTITLED TO TERMINATE THE AGREEMENT PREMATURELY. IF CONTRARY TO THIS PROVISION THE CLIENT NEVERTHELESS GIVES NOTICE OF AN INTERIM TERMINATION, IT WILL BE OBLIGED TO PAY TO CREAM PR THE AGREED FEE FOR THE REMAINING DURATION OF THE AGREEMENT AND THE COSTS ALREADY INCURRED BUT NOT YET CHARGED, TO BE INCREASED BY 20% AS COMPENSATION FOR THE LOSS SUFFERED BY CREAM PR OR TO BE INCREASED BY FULL COMPENSATION TO THE EXTENT THAT THIS IS HIGHER, ALL THIS AT THE DISCRETION OF CREAM PR.
10. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
10.1 UNLESS THE PARTIES HAVE AGREED OTHERWISE IN WRITING, ALL INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS ARISING FROM THE ASSIGNMENT, INCLUDING THE PATENT RIGHT, THE DRAWINGS AND MODEL RIGHTS, THE TRADEMARK RIGHT AND THE COPYRIGHT, WILL ACCRUE TO CREAM PR OR ITS SUPPLIERS. IF AN APPLICATION OR REGISTRATION IS REQUIRED FOR THE ACQUISITION OF SUCH A RIGHT, ONLY CREAM PR WILL BE ENTITLED TO PERFORM THIS UNLESS THE PARTIES HAVE AGREED OTHERWISE.
10.2 ANY REPORTS, ADVICE, TEXTS, (WORK) DRAWINGS, ILLUSTRATIONS, PROTOTYPES, MODELS, MOULDS, DESIGNS, ADVERTISING CONCEPTS, SLOGANS, ADVERTISING PROPERTIES, FILMS, AUDIO AND VIDEO PRESENTATIONS, COMPUTER FILES AND ALL OTHER MATERIALS INTENDED FOR CREATING THE WORK WHICH HAVE BEEN BROUGHT ABOUT BY CREAM PR, WILL AT ALL TIMES REMAIN THE PROPERTY OF CREAM PR, REGARDLESS OF WHETHER THEY HAVE BEEN MADE AVAILABLE TO THE CLIENT OR TO THIRD PARTIES, UNLESS THE PARTIES AGREE OTHERWISE IN WRITING.
10.3 CREAM PR GRANTS TO THE CLIENT AN EXCLUSIVE LICENSE TO USE THE WORK IT HAS CREATED FOR THE CLIENT, INSOFAR AS THIS RELATES TO THE RIGHT OF PUBLICATION AND REPRODUCTION, ALL THIS ACCORDING TO THE USE (PERIOD, MEDIA, COUNTRIES) AGREED BETWEEN THE PARTIES ON THE ASSIGNMENT. IF UPON GRANTING THE ASSIGNMENT NO ARRANGEMENTS ARE MADE ABOUT THE USE, THE LICENSING WILL BE LIMITED TO THAT USE OF THE WORK WHICH AT THE TIME OF GRANTING THE ASSIGNMENT CREAM PR COULD HAVE REASONABLY UNDERSTOOD TO BE INTENDED BY THE CLIENT. IF A DIFFERENCE OF OPINION WOULD ARISE IN THIS RESPECT BETWEEN THE PARTIES, THE BURDEN OF PROOF OF THE INTENDED USE WILL REST ON THE CLIENT.
10.4 IF THE CLIENT WANTS TO MAKE WIDER USE OF THE WORK THAN WAS ORIGINALLY AGREED, CREAM PR WILL IN PRINCIPLE GIVE ITS CONSENT TO THIS END UNLESS THIS CANNOT REASONABLY BE REQUIRED FROM CREAM PR. CREAM PR IS ENTITLED TO ATTACH CONDITIONS TO ITS CONSENT, IN PARTICULAR THE CONDITION THAT THE CLIENT SHALL PAY AN ADDITIONAL FEE FOR THE WIDER USE.
10.5 THE CLIENT IS NOT ALLOWED WITHOUT THE PRIOR WRITTEN CONSENT OF CREAM PR TO MAKE CHANGES TO THE WORK OR HAVE THESE MADE.
IF AND INSOFAR AS CREAM PR MANUFACTURES PRODUCTS OR PACKAGING ON THE BASIS OF THE EXPLICIT DIRECTIONS OF THE CLIENT, SUCH AS SPECIFICATIONS, DESIGNS, DRAWINGS, MODELS, PATTERNS, TEXTS, LOGOS ETC. SUPPLIED BY THE CLIENT, THE CLIENT SHALL WARRANT THAT NO RIGHTS OF THIRD PARTIES WILL BE INFRINGED.
THE CLIENT INDEMNIFIES CREAM PR AGAINST ANY CLAIMS BY THIRD PARTIES IN THIS RESPECT AND SHALL REIMBURSE ALL COSTS INCURRED BY CREAM PR IN CONNECTION WITH THESE CLAIMS.
CREAM PR ENSURES THAT ANY SUPPLIERS IT ENGAGES GRANT A LICENSE FOR THE USE OF THEIR WORK ACCORDING TO THE BUDGET. AT THE REQUEST OF THE CLIENT CREAM PR WILL TRY TO STIPULATE A WIDER USE AND/OR INVESTIGATE WHETHER A FULL COPYRIGHT TRANSFER IS POSSIBLE AND AT WHAT COST. CREAM PR IS NOT LIABLE INSOFAR AS THE CLIENT USES THE WORK OF SUPPLIERS BEYOND WHAT HAS BEEN STATED IN THE BUDGET (MEDIA, PERIOD, COUNTRIES).
THE ULTIMATE RESPONSIBILITY FOR THE CONTENTS OF THE COMMUNICATION STATEMENTS IN CONNECTION WITH THE PERFORMANCE OF THE AGREEMENT RESTS WITH THE CLIENT. THE CLIENT INDEMNIFIES CREAM PR AGAINST ANY CLAIMS BY THIRD PARTIES IN CONNECTION WITH THESE STATEMENTS.
11. LIABILITY
11.1 EXCEPT IN THE EVENT OF INTENT OR GROSS NEGLIGENCE ON THE PART OF CREAM PR, THE LATTER CAN NEVER BE HELD LIABLE FOR ANY LOSS CAUSED:
A. BY DEFECTS IN OFFERS OF SUPPLIERS OR FOR EXCEEDING QUOTATIONS OF SUPPLIERS;
B. BY FAULTS IN INFORMATION OR MATERIALS SUPPLIED BY THE CLIENT TO CREAM PR;
C. BY NOT OR NOT FULLY ACHIEVING THE (MARKET) RESULT WITH THE WORK INTENDED BY THE CLIENT;
D. BY FAULTS OF THIRD PARTIES (INCLUDING THESE THIRD PARTIES SUPPLYING FAULTY INFORMATION OR FAULTY MATERIALS), WHO ARE ENGAGED WITH THE CONSENT OF THE CLIENT;
E. BY MISUNDERSTANDINGS, DELAYS OR ORDERS AND NOTICES NOT PROPERLY BEING TRANSFERRED AS A RESULT OF INTERNET USE OR ANY OTHER (ELECTRONIC) MEANS OF COMMUNICATION.
11.2 ONLY DIRECT LOSS AND LOSS ATTRIBUTABLE TO CREAM PR – NOT INCLUDING LOSSES MENTIONED IN THE FIRST PARAGRAPH OF THIS PROVISION – IS ELIGIBLE FOR COMPENSATION. LIABILITY FOR INDIRECT LOSS, SUCH AS IN ANY CASE BUT NOT LIMITED TO CONSEQUENTIAL LOSS, LOST PROFITS, CORRUPTED OR LOST DATA OR MATERIALS, OR REDUCED REVENUE IS EXCLUDED.
11.3 INSOFAR AS CREAM PR IS LIABLE FOR COMPENSATION OF LOSS, THIS LOSS WILL IN ALL CASES BE LIMITED TO THE AMOUNT THAT WILL BE PAID UNDER THE CORPORATE LIABILITY INSURANCE IN THE RESPECTIVE CASE, AT ANY RATE, INSOFAR AS THIS IS A LOWER AMOUNT, ITS FEE EXCLUDING VALUE ADDED TAX (VAT) AND EXCLUDING OUT-OF-POCKET EXPENSES STIPULATED FOR THE PERFORMANCE BY CREAM PR FOR THE RESPECTIVE ASSIGNMENT IN CONNECTION WITH WHICH THE LIABILITY AROSE. IF THE AGREEMENT IS MAINLY A CONTINUING PERFORMANCE AGREEMENT WITH A TERM OF MORE THAN SIX MONTHS, THE FEE IN THIS CLAUSE WILL BE SET AT THE TOTAL OF THE FEES STIPULATED FOR SIX MONTHS EXCLUDING VALUE ADDED TAX (VAT) AND EXCLUDING OUT-OF-POCKET EXPENSES.
11.4 THE CONDITION FOR THE CREATION OF ANY RIGHT TO COMPENSATION IS AT ALL TIMES THAT THE CLIENT NOTIFIES CREAM PR IN WRITING OF THE LOSS AS SOON AS POSSIBLE, BUT AT THE LATEST WITHIN FOUR WEEKS AFTER THE LOSS AROSE. IF TIMELY NOTIFICATION IS NOT FORTHCOMING, THE RIGHT OF THE CLIENT TO COMPENSATION WILL LAPSE.
11.5 MATERIALS CREAM PR WILL RETAIN THE MATERIALS MADE IN CONNECTION WITH AN ASSIGNMENT FOR 24 MONTHS.
AFTER THIS PERIOD HAS ENDED THE MATERIALS WILL BE DESTROYED UNLESS THE CLIENT INDICATES WHEN REQUESTED THAT CREAM PR SHOULD RETAIN THE MATERIALS FOR A FURTHER PERIOD AGAINST PAYMENT OF THE RESPECTIVE COSTS.
11.6 AT THE REQUEST OF THE CLIENT CREAM PR WILL RETURN THE MATERIALS, PROVIDED ALL OUTSTANDING INVOICES THAT HAVE ARISEN IN CONNECTION WITH THE COOPERATION HAVE BEEN PAID BY THE CLIENT OR SECURITY HAS BEEN FURNISHED FOR THEM.
12. APPLICABLE LAW AND DISPUTES ALL AGREEMENTS BETWEEN CREAM PR AND THE CLIENT ARE GOVERNED BY DUTCH LAW, EVEN IF AN OBLIGATION IS PERFORMED IN WHOLE OR IN PART ABROAD OR IF THE CLIENT HAS ITS DOMICILE ABROAD.
ANY DISPUTES WHICH MIGHT ARISE BETWEEN CREAM PR AND THE CLIENT WILL BE SUBMITTED TO THE COMPETENT COURT IN AMSTERDAM.