General terms and conditions

Article 1: Definitions
In these general terms and conditions, the following definitions shall apply:

User: Capital Advertising B.V., having its registered office and place of business in 's-Hertogenbosch;

Other party: the natural or legal person, or his legal successor, for whom services are provided and/or a job is contracted by or on behalf of the User;

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 the user, containing the means of advertising and/or services provided for the other party's profession or company or a specific part thereof;

Price: the monetary payment owed by the other party to the latter pursuant to any agreement with the user or on the basis of rates customary in the sector 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 23 September 1912, S. 308), models and other communicative goods produced by the user for the public commendation of the profession or business of the other party, or a specific part thereof;

Force majeure: a shortcoming which cannot be attributed to user because it cannot be attributed to his fault, nor is it for his account by virtue of law, legal action or generally accepted practice, including the case where user is unable to perform his services due to the default or carelessness of third parties.

Article 2: Applicability
These general terms and conditions shall apply to all legal acts of the user and shall be deemed to have been handed over 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 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 made by MSS are without obligation, unless otherwise agreed in writing.

Although the user shall exercise due care when formulating his offers, the other party can never derive any justified confidence in the correctness of the information contained therein, unless an agreement has been concluded in the manner stipulated in article 4.

Article 4: Acceptance/Content of agreement

An agreement shall be established between user and the other party with regard to
a. a work: if the other party accepts an offer from the user which may include an estimate of the price to be paid by the other party to the user upon completion of the work and the user confirms this acceptance, or if the user accepts an assignment from the other party in some other way;
b. a presentation: if the other party instructs the user to make a presentation and the user accepts this assignment, notwithstanding the possibility that written correspondence between the parties explicitly shows that a different type 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 user's confirmation of user's offer accepted by the other party. Although the user shall take the utmost care to limit the price to be charged to the other party after completion of the work as much as possible, the other party cannot derive any rights or confidence from the estimate made by the user as referred to in the first paragraph under a.

The content of the agreement concluded according to the first paragraph under b shall be derived from the wording of the 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 the user's costs as a result of any provision in a collective labour agreement, law, decision or decision of a (semi)governmental authority (including foreign governments) of a mandatory nature, or if circumstances occur outside the sphere of influence of the user which increase the cost price to such an extent that the user can no longer reasonably 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 the user to the other party by means of the indication of objective criteria.

Article 6: Payment
The price referred to in article 6, first paragraph shall be paid by the other party within 14 days from the date of the invoice sent by the user to the other party. The other party may never invoke discount or settlement.

In the event of non-payment, late payment or incomplete payment by the other party within the term set by the user in accordance with these terms and conditions, the other party shall be deemed to be in default by the user and the full amount still outstanding in favour of the 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 applicable legal interest, all this without prejudice to the right of the 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 default for the other party shall immediately commence if:
a. the other party submits a request for a suspension of payment, 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 reasonably to be incurred by the user in order to obtain payment from the other party after the other party has entered into 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, paragraphs 2 and 3, user shall be entitled to either 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, the user shall also be entitled to suspend the fulfilment of its obligations vis-à-vis the other party if circumstances become known after the agreement was concluded and give the user good reason to fear that the other party will not (fully) fulfil its obligations vis-à-vis the user, all this unless the other party pays an amount to be determined by the user in advance or provides security for the price to be paid by the user in another manner approved by the user.

If user is prevented by force majeure from performing its agreed services or delivering work, article 14 shall apply.

Article 8: Right of retention/retention of title
The User shall be entitled to retain the Other Party's goods until the price owed by the Other Party, or any other amount payable by the Other Party to the User, including (extra)judicial costs, have been paid to the User in full.

If after a presentation no agreement is concluded with respect to a subsequent work, any advertising materials in the other party's possession which have been manufactured by the user must be immediately surrendered to him on penalty of an immediately payable fine of € 10,000, without prejudice to the 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 regard to every design, every working drawing, model or other design, shall be vested in user.

Unless otherwise agreed in writing, after the conclusion of an agreement and without prejudice to the other provisions of this article, the other party only acquires the right to one-time use for the purpose and scope as specifically intended between the parties at the time of the conclusion 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 the user have been paid in full. If a payment term has not yet expired, any use will automatically be deemed to take place under the resolutive condition that payment is not made in time and the user will be entitled to stop any use (or have it stopped) at a later date.

The other party is not permitted to make changes or have changes made to a design by the user without the user's prior written consent. The user will not refuse such 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 performed for the benefit of the other party and this fact was heard as such by the other party.
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. The 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 the user of that which has been agreed with the other party, including negligence on the part of third parties engaged by the user, unless the 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 the user's default should be compensated by the user according to standards of reasonableness and fairness, the 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 the user against claims by third parties who may assert (intellectual) (property) rights to the handling of advertising means prescribed by the other party to the user. This obligation implies that the other party shall reimburse the 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 the user, the user can never be held liable for this, as these have not been put into circulation by the user, so that on the basis of section 6.3.3 of the New Civil Code there is no liability for the user.

Article 10: Property of the other party
1. Any goods provided by the other party to the user shall be stored, used, treated and processed with care.
2. Notwithstanding the provisions of the previous paragraph, the other party shall be entirely responsible for any loss or depreciation in value of its goods thus provided to the user, unless the 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 the 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 the 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, the 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, the 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 dictate otherwise, the Rules for the Advertising Industry (last adopted 1990, to be consulted at the Raad van Orde en Toezicht voor het Advertentiewezen, Joh. Vermeerstraat 14, 1071 DR Amsterdam, tel. 020 - 6649431) shall apply (additionally) to all legal acts of the 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 exclusively submitted to the competent court in the district of 's-Hertogenbosch.
These general terms and conditions have been filed with the Chamber of Commerce and Industry in 's-Hertogenbosch on July 15, 1992.

Capital Advertising
Het Zuiderkruis 23B
5215 MV ‘s-Hertogenbosch