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General Terms and Conditions for Advertising Definitions

Definitions

General Terms and Conditions for Advertising Definitions

The Publisher: Uitgeverij Scala BV and Scala Publishing BV, hereinafter referred to as the Publisher and/or Scala BV.

The Other Party: The natural person or legal entity, as well as its representative(s) and/or authorised representative(s), who enters into an agreement with the Publisher with a view to advertisement in a medium issued by the Publisher, and the associated activities.

Material: All (digital) texts, images and design material to be supplied by the Other Party, always in a proper format and subject to the specifications used by the Publisher. Specifications are available on request from the Publisher.

Quotation: A non-binding statement of price and work involved in the execution of an agreement.

General

These General Terms and Conditions for Advertising shall apply to all Advertising Contracts between Scala BV, Maanlander 14H, 3824 MP Amersfoort and the Other Party, the manner of formation and the execution thereof. The Dutch version of these Terms and Conditions have been filed with the Chamber of Commerce in Amersfoort under number 32151469 and will be sent on request.

The applicability of the (general) terms and conditions of the Other Party is explicitly rejected. The Publisher is at all times entitled to amend these general terms and conditions without giving reasons. Amendments will take effect by operation of law one month after having taken cognizance of the amended general terms and conditions. Notification shall be deemed to have taken place after the Publisher has sent them to the Other Party. If the Other Party does not agree with the announced changes, the Other Party will, contrary to article 12, be entitled to terminate the Agreement as of the date on which the amended terms and conditions come into force.

If a provision of these terms and conditions is null and void or annulled by a competent authority, the other provisions of these Terms and Conditions will remain in full force. The nullified provision is deemed to be replaced by a provision that corresponds as closely as possible with the tenor of the nullified provision.

In the event that the Publisher has not constantly demanded compliance with these general terms and conditions, it shall under no circumstances acquire the right to demand compliance with these general terms and conditions in whole or in part.

1) Realization of an agreement
a) An agreement shall be concluded by written confirmation from the Publisher.
b) An agreement is also concluded after verbal confirmation by the Publisher, when the Publisher has commenced actual implementation of the Agreement.

2) Execution of the Agreement
a) The Publisher may, at its own discretion, engage third parties for the performance of the Agreement.
b) If the Agreement is performed in phases, the Publisher may suspend the performance of those parts belonging to a subsequent phase until the Other Party has approved the results of the preceding phase in writing.
c) The Publisher will always strive for timely completion of the Agreement, however the Publisher does not commit itself to a deadline. If the Other Party is in the opinion that an Agreement has been performed too late, it will first serve notice of default on the Publisher in writing by registered letter. This notice of default will be accompanied by a reasonable period of time in which to perform the Agreement after all.
d) If, during the performance of the Agreement, it appears that, in the opinion of the Publisher, it is necessary to amend or supplement the Agreement in view of the circumstances, both parties will consult each other. If the nature, scope or content of the Agreement, whether or not at the request or indication of the Other Party, is changed and the Agreement is thereby changed in terms of quality and/or quantity, the original Offer may be increased or decreased. The Publisher will, as far as possible, provide a quotation in advance. By amending the Agreement, the originally stated term of execution may be changed. The Other Party accepts the possibility of amendment of the Agreement, including the change in price and term of execution.
e) If the Agreement is amended, including a supplement, the Publisher will not be entitled to perform the Agreement until the person authorised within the Publisher and the Other Party have agreed to the price and other conditions stated for the performance, including the time to be determined at that time when the Agreement will be performed. The failure to perform the amended Agreement or to perform it immediately will not constitute a breach of contract on the part of the Publisher and will not constitute grounds for the Other Party to terminate the Agreement.
f) Without giving reasons, the Publisher may refuse a request to amend the Agreement if this could have qualitative and/or quantitative consequences, for example, for the work to be carried out in that context.

3) Quotations
a) The prices stated in a Quotation are excluded VAT and other government levies as well as any costs to be incurred within the framework of the Agreement, such as shipping, layout and administration costs, unless stated otherwise.
b) Quotations shall be valid for fourteen (14) days.
c) If the Other Party accepts the Quotation under different conditions than those included in the Quotation, the Publisher shall not be bound by it.
d) Exceedances of Quotations up to 10% of the budgeted total are accepted by the Other Party as budgetary risk. The Publisher does not have to report this exceeding in advance and is entitled to charge the Other Party in full.
e) The Publisher will make every effort to inform the Other Party of the costs involved in engaging third parties in the Quotation. Exceedings of Quotations as a result of circumstances arising from the involvement of third parties engaged by the Publisher cannot, however, be regarded as exceeding.
f) In the event of an obvious error or clerical error in the Quotation, the Publisher is not bound by the (incorrect) offer made to the Other Party in that Quotation.
g) A Quotation relates to an entire agreement, irrespective whether it consists of separate or successive activities. The Publisher is not obliged to perform part of an Agreement if the Other Party only pays part of the price in a Quotation.
h) Objections to a Quotation must be made known within one week, but at the latest before implementation of the Agreement.

4) Material
a) The Publisher will use Material supplied by the Other Party for the performance of the Agreement. The terms of the Agreement shall not commence until the Other Party has made the Material available to the Publisher correctly and in full.
b) The Publisher must always be in possession of the Material on time. Unless agreed otherwise, the Other Party shall deliver the Material at least ten (10) days before the commencement of the performance of the Agreement.
c) The period set out in the previous paragraph shall be deemed to be a firm deadline.
d) In the event that the Material is not delivered on time, as a result of which the Agreement may be executed with a delay, the Other Party shall remain obliged to pay the agreed fee within the agreed payment period.

5) Payment
a) The Publisher is entitled to charge part of the Agreement on account.
b) Payment must always be made within fourteen (14) days of the invoice date, unless another term of payment has been agreed in writing.
c) Objection to the amount of an invoice shall not suspend the payment obligation.
d) Any complaints about the invoice must be made known by registered letter within eight (8) days after the invoice date, failing which the Other Party shall be deemed to acknowledge the correctness of the invoice.
e) If the Other Party fails to pay an invoice on time, the Other Party shall be in default by law. The Other Party will then owe a contractual interest of one and a half percent (1.5%) per month, whereby a part of a month will be counted as a full month, as well as the statutory (commercial) interest until the day of full payment of the claim.
f) If the Other Party is in default or default in the (timely) fulfilment of its obligations, all reasonable costs incurred to obtain extrajudicial settlement shall be for the Other Party’s account, with a minimum of € 40 (forty Euros). If the Publisher has incurred collection costs that were reasonably necessary, which are higher than fifteen percent (15%) of the claim, the actual costs incurred will be eligible for reimbursement. In the event that the claim is brought in court, related costs such as court registry fees and enforcement costs may be recovered in full of the Other Party. The Other Party will owe the legal (commercial) interest on the aforementioned costs to the Publisher until the date on which the costs have been paid in full to the Publisher.
g) If the Other Party owes costs or interest under these terms and conditions, the Agreement between the Publisher and the Other Party or otherwise, payments made by the Other Party will first be deducted hereof and only then from the principal amount due. The Publisher is entitled to refuse an offer of payment if the Other Party designates a different order for the allocation of the payment. The Publisher may refuse full redemption of the principal sum, if the outstanding and accrued interest and collection costs are not also paid.

6) Intellectual property
a) Intellectual property rights on Material supplied by the Other Party are vested in the Other Party.
b) The Other Party shall grant a non-exclusive, non-transferable irrevocable and unrestricted right to use the Material in any context for the execution of the Agreement. The Publisher thereby acquires the royalty-free and unrestricted right to publish and reproduce the Material for an indefinite period of time, including the right to translate or edit the Material, in any manner and through any publisher or third-party media, including but not limited to print, e-magazine, internet, DVD and other data carriers and merchandising. The Material may be included in the Publisher’s (digital) archive or that of third parties for an indefinite period of time.

7) Indemnification and risk
a) Disclosure of Material by the Publisher under the Agreement is entirely at the risk of the Other Party.
b) The Other Party indemnifies the Publisher without any reservation whatsoever against any claims by third parties suffering damage in connection with the performance of the Agreement and the cause of which cannot be attributed to the Publisher.

Clause 7.b in any case includes claims of third parties, regardless of whether or not they appear to be well-founded:

  • infringement of copyright, trademark or design right or any other intellectual property right;
  • infringement of the right relating to comparative advertising, unfair competition and unfair commercial practices;
  • infringement of the Dutch Advertising Code and damage to reputation.

If the Publisher should be held liable by third parties in this respect, the Other Party will be obliged to assist the Publisher both out of court and in court and to do without delay everything that may be expected of the Other Party in that case. Should the Other Party fail to take adequate measures, the Publisher will be entitled, without notice of default being required, to do so itself. All costs and damage incurred on the part of the Publisher and third parties as a result will be entirely at the expense and risk of the Other Party.

8) Non-conformity
a) The goods to be delivered by the Publisher comply with the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended under normal use in the Netherlands.
b) The Other Party shall be obliged to examine the delivered goods (or have them examined) immediately at the time at which the goods are made available to them or at the time at which the work in question has been carried out. In doing so, the Other Party shall examine whether the quality and/or quantity of the goods delivered corresponds with what has been agreed and meets the requirements that the parties have agreed in this respect. Alleged defects must be reported to the Publisher in writing within two weeks after delivery. The report must contain as detailed a description of the defect as possible, so that the Publisher is able to respond adequately. The Other Party must give the Publisher the opportunity to investigate a complaint (or have it investigated).
c) If a defect is reported later than referred to in the previous article, the Other Party will no longer be entitled to repair, replacement or compensation, unless a longer period of time arises from the nature of the item or the other circumstances of the case.
d) If the Other Party complains in time, this does not suspend the payment obligation. In that case the Other Party shall also remain obliged to take delivery and pay for any other goods that are to be delivered under the Agreement.
e) If it is established that a good is defective and a timely complaint has been made, the parties will consult on a solution of the defect. The Publisher shall make every effort to remedy the defect or to provide a replacement (partial) performance. The payment of damages is excluded, unless otherwise agreed in writing.
f) If it is established that a complaint is unfounded, the costs, including the costs of investigation, incurred on the part of the Publisher as a result, shall be borne in full by the Other Party.

9) Force majeure
a) The Publisher is not obliged to fulfil any obligation towards the Other Party if it is hindered to do so as a result of a circumstance for which it is not to blame, and which is not for its account by virtue of the law, a legal act or generally accepted views.
b) In these general terms and conditions, force majeure means, in addition to what is understood in this respect by law and case law, all external causes, foreseen or unforeseen, over which the Publisher has no influence, but which prevents the Publisher from fulfilling its obligations. The Publisher also has the right to invoke force majeure if the circumstance preventing (further) fulfilment of the Agreement occurs after the Publisher should have fulfilled its obligation.
c) The Publisher may suspend its obligations under the Agreement during the period of force majeure. If this period lasts longer than three months, either party will be entitled to dissolve the Agreement, without any obligation to compensate the other party for damages.
d) If the Publisher has already partially fulfilled its obligations under the Agreement or will be able to fulfil them at the time the force majeure occurs, and the part already fulfilled or to be fulfilled, respectively, has independent value, the Publisher shall be entitled to invoice separately the part already fulfilled or to be fulfilled. The Other Party will be obliged to pay this invoice as if it were a separate agreement.

10) Liability
a) If the Publisher should be liable on account of defective performance of the Agreement, such liability shall be limited to what is provided for in this provision.
b) The Publisher shall not be liable for damage of any nature whatsoever arising from the fact that the Publisher has relied on incorrect and/or incomplete Material and/or other data supplied by or on behalf of the Other Party.
c) The Publisher will only be liable for direct damage.
d) Direct damage is exclusively understood to mean: the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these General Terms and Conditions; any reasonable costs incurred to make the Defective Performance of the Publisher comply with the Agreement, insofar as these can be attributed to the Publisher; reasonable costs incurred to prevent or limit damage, insofar as the Other Party demonstrates that these costs have led to a limitation of direct damage as referred to in these General Terms and Conditions.
e) The Publisher shall never be liable for indirect damage, including consequential damage, loss of profit and damage due to business stagnation or other stagnation.
f) If the Publisher should be liable for any damage, the liability of the Publisher shall be limited to a maximum of the invoice value of the Agreement with a maximum of € 25000 (twenty-five thousand Euros), at least to that part of the Agreement to which the liability relates.
g) The Publisher’s liability shall in any event always be limited to the amount paid out by its insurer, if any.

11) Termination
a) The Publisher shall be entitled to suspend performance of the obligations or to dissolve the Agreement immediately, if:

  • The Other Party does not fulfil its obligations under the Agreement or does not fulfil them fully or on time;
  • after the Agreement has been concluded, circumstances come to the attention of the Publisher which give good reason to fear that the Other Party will not fulfil its obligations;
  • When concluding the Agreement, the Other Party was requested to provide security for the fulfilment of its obligations under the Agreement and this security is not provided or is insufficient;
  • If, as a result of the delay on the part of the Other Party, the Publisher can no longer be required to fulfil the Agreement at the originally agreed conditions, the Publisher will be entitled to dissolve the Agreement, and;
  • If circumstances arise of such a nature that fulfilment of the Agreement is impossible or unaltered maintenance of the Agreement cannot reasonably be required of the Publisher.

b) The Publisher shall be entitled to compensation for direct and indirect damage, including costs, arising as a result of the dissolution of the Agreement.
c) If the Agreement is dissolved, the claims of the Publisher against the Other Party will be immediately due and payable. If the Publisher suspends fulfilment of the obligations, it will retain its claims under the law and the Agreement.
d) If the Publisher proceeds to suspension or dissolution on the grounds set out in this article, it will not be obliged to pay compensation for damage and costs incurred as a result, whereas the Other Party will be obliged to pay compensation or indemnification on the grounds of breach of contract.

12) Confidentiality

(a) Information which comes to the knowledge of the Parties in the Agreement is considered confidential and should therefore be treated as such.

13) Applicable law and disputes
a) The Agreement between the Publisher and the Other Party shall be governed by Dutch law. Applicability of the Vienna Sales Convention is excluded.
b) If the parties fail to resolve any dispute between them amicably, the court in Amersfoort shall have exclusive jurisdiction to hear the dispute.