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Terms and Conditions
Article 1: Definitions
In these General Terms and Conditions for Production Assignments (“Terms and conditions”), the following terms are understood to mean:
- "Creative Comet"
Creative Comet B.V., legally domiciled in Amsterdam and with offices at Houthavenweg 19 (1014 ZA) in Amsterdam; The legal entity that has accepted the assignment or has made a prior offer or proposal for a potential assignment.
- "Client"
The natural or legal person for whom Creative Comet executes an Assignment.
- "Assignment Agreement"
The written agreement of assignment in the sense of Article 7:400 et seq. of the Dutch Civil Code (BW) between Creative Comet and the Client through which Creative Comet undertakes to execute work on behalf of the Client within the context of an Assignment, including all agreed-upon written (including email) expansions and modifications thereto.
- "Assignment"
The work included in an offer or proposal from Creative Comet or described in the Assignment Agreement between Creative Comet and the Client, which Creative Comet will carry out on behalf of the Client.
- "Parties"
Client and Creative Comet.
Article 2: Offers and Proposals and Establishment of the Assignment Agreement
2.1 All offers, proposals, and prices from Creative Comet, published anywhere and in any form, are always without obligation unless expressly agreed otherwise in writing.
2.2 Creative Comet's offers are valid for a maximum of one month unless a different acceptance period is mentioned in the offer. The offer expires if it is not accepted within the specified period.
2.3 Delivery times in proposals are indicative and do not entitle the Client to dissolution or compensation if exceeded unless the parties have explicitly and in writing agreed otherwise.
2.4 Offers and proposals do not automatically apply to additional assignments. Parties must explicitly and in writing agree on this.
2.5 The Assignment Agreement is established at the moment of written agreement, via email or by signing the Assignment Agreement, or upon receipt of the order confirmation and the necessary data and information based on laws and regulations by Creative Comet.
Article 3: Prices
3.1 The prices mentioned in Creative Comet's offers, proposals, and invoices are:
a. Excluding any agreed travel, accommodation, and material costs;
b. Excluding agreed costs for any potential rental of audiovisual equipment, use of digital instruments, any potential accommodation rental, and other facilities;
c. Excluding VAT and any other government levies, unless expressly stated otherwise.
3.2 The prices of goods are based on the cost prices known at that time. Increases in these prices that Creative Comet could not foresee at the time of making the offer or at the time the agreement was concluded may lead to price increases.
3.3 Parties can agree on a fixed price for the execution of the assignment.
3.4 When no fixed price has been agreed, the rate for the services provided by Creative Comet can be determined based on the actual hours spent. The rate is calculated according to the usual hourly rates applicable for the period in which the work by Creative Comet is performed, unless a different hourly rate has been agreed.
Article 4: Applicability
4.1 These General Terms and Conditions apply to and form part of all offers, assignments, and agreements between Creative Comet and the Client within the context of executing assignments. In case of conflict between these General Terms and Conditions and any terms in a proposal from Creative Comet, the terms in that proposal will prevail.
4.2 Deviations from these General Terms and Conditions are only valid if and insofar as they are confirmed in writing by Creative Comet. No rights can be derived from such deviations regarding subsequently entered legal relationships.
4.3 The applicability of other general terms and conditions than these General Terms and Conditions is hereby expressly rejected.
4.4 If any provision of these General Terms and Conditions is void, declared void, or annulled, the remaining provisions will remain fully in force. Regarding the void, voided, or annulled provisions, the Parties will consult to agree on new provisions that reflect as closely as possible the purpose and intent of the original provisions.
4.5 If these General Terms and Conditions have once applied to a legal relationship between Creative Comet and the Client, the Client is deemed to have agreed in advance to the applicability of the General Terms and Conditions to agreements concluded thereafter.
Article 5: Agreement of Intent
5.1 The parties wish to contract exclusively with each other based on an Assignment Agreement in the sense of Article 7:400 et seq. BW.
5.2 The parties emphasize that they do not intend to enter into an employment contract in the sense of Articles 7:610 et seq. and 7:690 et seq. BW.
5.3 The parties explicitly wish to prevent the applicability of the fictitious employment relationship of intermediation.
5.4 The parties emphasize that Creative Comet executes the work entirely independently. The work within the context of the Assignment is carried out at the discretion of Creative Comet and without supervision or direction from the Client. The Client may provide instructions regarding the result of the Assignment.
Article 6: Execution of the Agreement
6.1 Creative Comet executes the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship that the Client may reasonably expect under normal circumstances, given the nature and scope of the Assignment.
6.2 Creative Comet has the right to have work carried out by third parties for the execution of the assignment.
6.3 The execution of the assignment takes place in mutual consultation and after written approval and payment of any agreed advance.
6.4 The Client is obliged to provide all data, information, and materials that Creative Comet deems necessary for the proper execution of the assignment or which the Client should reasonably understand to be necessary for the execution of the work, in a timely manner and in the desired form and manner.
6.5 The Client guarantees the accuracy, completeness, and reliability of the data and documents provided to Creative Comet, even if they originate from third parties, unless the nature of the assignment dictates otherwise.
6.6 If and insofar as the Client requests, Creative Comet will return the relevant documents and materials.
6.7 If the Client does not provide the information necessary for the execution of the assignment to Creative Comet in a timely manner, Creative Comet has the right to suspend the execution of the agreement and/or charge the additional costs resulting from the delay to the Client at the usual rates.
6.8 The Client is obliged to inform Creative Comet without delay of facts and circumstances that may be relevant in connection with the execution of the assignment.
6.9 If the parties agree on a deadline for the completion of certain work within the term of the agreement, this shall never be a strict deadline. In case of exceeding this deadline, the Client must notify Creative Comet in writing.
6.10 The Client shall enable Creative Comet to execute the Assignment properly.
6.11 If Creative Comet so requests, the Client must provide Creative Comet with adequate workspace, tools, materials, and information that are necessary for the proper execution of the Assignment. Creative Comet shall follow the instructions given by the Client for executing the Assignment, as well as safety measures.
Article 7: Duration and Modification of the Agreement
7.1 The agreement between the Client and Creative Comet is entered into for a fixed term and takes effect on the start date specified therein, unless the nature of the agreement indicates otherwise or the Parties have expressly and in writing agreed otherwise.
7.2 The start date and end date, as included in the Assignment Agreement, determine the period within which the work will be performed by Creative Comet or the result will be achieved.
7.3 If during the execution of the agreement it becomes apparent that it is necessary to modify or supplement the work to be performed for a proper execution of the Assignment, the Parties will timely and in mutual consultation adjust the Assignment Agreement accordingly.
7.4 If the Parties agree to modify or supplement the agreement, the end date may be affected. Creative Comet will inform the Client of this as soon as possible.
7.5 If the modification or supplementation of the Assignment Agreement has financial and/or qualitative consequences, Creative Comet will inform the Client about this as soon as possible.
7.6 If the Parties have agreed upon a fixed fee, Creative Comet will indicate the extent to which the modification or supplementation of the Assignment Agreement will result in an exceeding of this fee.
Article 8: Termination of the Agreement
8.1 The Parties may unilaterally terminate the Agreement prematurely if one of the parties believes that the execution of the Assignment can no longer take place according to the agreements made in the offer or the Assignment Agreement and any additional agreements. This must be communicated to the other party with reasons and in writing. The Parties may only use the right to premature termination if, due to force majeure, the completion of the assignment cannot reasonably be required.
8.2 If the Agreement is terminated by the Client, the Client is obliged to pay the hourly rate owed in connection with the work already performed and the expenses incurred concerning Creative Comet's assignment. Furthermore, Creative Comet has the right to recover any damages suffered or to be suffered due to the termination of the Assignment by the Client from the Client.
8.3 In the event of termination of the Assignment by Creative Comet, Creative Comet shall not be obliged to pay any compensation to the Client, unless the Parties have agreed otherwise.
8.4 The Agreement ends automatically without any (legal) action being required by delivering the agreed product or the expiration of the agreed duration of the Assignment, subject to the provisions below regarding termination. Extension of the Assignment is possible if Creative Comet and the Client have agreed in writing one month before the end of the Assignment period. The extended Assignment will then continue under the conditions as laid down in the Assignment, unless explicitly stated otherwise.
8.5 Notwithstanding the first and fourth paragraphs of this article, the Parties may terminate the Assignment with immediate effect without stating reasons in the following cases:
a. if the other Party is declared bankrupt;
b. if the other Party is granted (provisional) suspension of payments;
c. if the other Party is liquidated;
d. if an executory attachment is made on the movable and/or immovable property of the other Party; or
e. if the other Party, after a written notice of default with a reasonable period for remedying the default, has not remedied the default after the expiration of that period and remains in default concerning its obligations under the Assignment Agreement.
8.6 The termination of the Assignment Agreement for any reason whatsoever does not relieve the Client of the outstanding obligations under the Assignment Agreement at that time.
Article 9: Force Majeure
9.1 In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by Creative Comet to fulfill any obligation towards the Client cannot be attributed to Creative Comet in the event of an independent circumstance that prevents the fulfillment of its obligations towards the Client in whole or in part, or that prevents the fulfillment of its obligations from being reasonably expected from Creative Comet. These circumstances include, but are not limited to, failures of suppliers or other third parties, power outages, computer viruses, strikes, bad weather conditions, and work interruptions.
9.2 If a situation as described above occurs, as a result of which Creative Comet cannot fulfill its obligations towards the Client, those obligations will be suspended as long as Creative Comet is unable to fulfill its obligations. If the situation referred to in the previous sentence lasts for 30 calendar days, the parties have the right to dissolve the agreement in whole or in part in writing.
9.3 In the event referred to in the second paragraph of this article, Creative Comet is not obliged to compensate any damages, even if Creative Comet derives any benefit as a result of the force majeure situation.
Article 10: Fees and Payments
10.1 In respect of the services provided by Creative Comet under the Assignment, the Client shall owe Creative Comet a fee as agreed in the Assignment Agreement.
10.2 If the fee is based on an hourly rate, Creative Comet shall keep track of the hours spent during the Assignment using a time recording form, which will serve as the basis for calculating the fee for the provided services.
10.3 Creative Comet shall send the Client an invoice specifying the fee for the services at the agreed times. Invoices must be paid within 30 days of the invoice date, unless the parties have made other written arrangements or the invoice specifies a different payment term.
10.4 Payments shall be made without any appeal to suspension or set-off by transferring the amount due to the bank account number specified by Creative Comet.
10.5 If the Client does not pay within the agreed term, the Client shall be in default by operation of law, without any notice of default being required. From that moment, Creative Comet is entitled to suspend its obligations until the Client has fulfilled its payment obligations.
10.6 If the Client remains in default, Creative Comet will proceed with debt collection. The costs related to such collection will be borne by the Client. In the event of default, the Client is liable for not only the principal sum but also statutory (commercial) interest, extrajudicial collection costs, and other damages to Creative Comet. The collection costs are calculated according to the Decree on the reimbursement for extrajudicial collection costs.
10.7 In the event of liquidation, bankruptcy, attachment, or suspension of payments by the Client, Creative Comet's claims against the Client shall be immediately payable.
10.8 Objections to the accuracy of an invoice must be submitted in writing to Creative Comet within 14 days of the invoice date, failing which the Client is deemed to have accepted the entire invoice.
10.9 If the Client disputes the accuracy of an invoice, the Client remains obligated to pay the undisputed portion. Any right of the Client to invoke suspension (as referred to in Articles 6:52, 6:262, or 6:263 of the Dutch Civil Code) or set-off is expressly excluded.
10.10 Payments made by the Client are primarily applied to satisfy the amounts owed under subsection 6 of this article and thereafter will be deducted from the oldest outstanding claim.
10.11 Creative Comet is at all times entitled to request security from the Client for all amounts owed or to be owed under the Assignment.
Article 11: Intellectual Property
11.1 Unless otherwise agreed in writing by the parties, Creative Comet retains all intellectual property rights (including copyright, patent rights, trademark rights, design rights, etc.) to all designs, drawings, writings, data carriers, or other information, quotes, images, sketches, models, prototypes, etc., used by it in the performance of the assignment.
11.2 The aforementioned intellectual property rights may not be copied, shown to third parties, made available, or used in any other way, except in connection with the assignment, without the written permission of Creative Comet.
11.3 Creative Comet will make all reasonable efforts to transfer to the Client any intellectual property rights resulting from or derived from the work performed by Creative Comet in the context of the assignment, to the extent that they are not already directly vested in the Client by any statutory provision.
11.4 Unless otherwise agreed in writing, Creative Comet is permitted to use the Client's name and logo for Creative Comet's marketing purposes.
Article 12: Confidentiality
12.1 Each Party shall keep confidential the information received from the other Party (in any form) and any other information about the other Party that it knows or reasonably should suspect to be confidential or secret, or information whose disclosure could reasonably be expected to cause harm to the other Party, and shall take all necessary measures to ensure that its personnel or third parties engaged by it also maintain confidentiality.
12.2 The confidentiality obligation described in the first paragraph of this article does not apply to information:
a. that was public knowledge at the time the recipient received it or that subsequently becomes public without any breach of a confidentiality obligation by the receiving party;
b. that the receiving party can prove was already in its possession at the time it was provided by the other party;
c. that the receiving party obtained from a third party who was authorized to provide such information to the receiving party; or
d. that the receiving party is required to disclose by law.
12.3 The confidentiality obligation described in this article applies for the duration of this agreement and for a period of three years after its termination.
Article 13: Liability
13.1 The Parties each warrant to the other the proper fulfillment of all obligations relating to them under the agreements made regarding the Assignment.
13.2 The obligations that Creative Comet undertakes towards the Client are obligations of best effort.
13.3 Creative Comet is not liable for any damage suffered or to be suffered by the Client and/or a third party as a result of the work performed or to be performed by Creative Comet in the context of the Assignment or otherwise, unless such damage is due to its willful recklessness, intent, or gross negligence.
13.4 The Client indemnifies Creative Comet against all damage or claims from third parties related to the Assignment and all associated financial consequences, including liability under Articles 6:170 and 6:76 of the Dutch Civil Code.
13.5 To the extent that Creative Comet is deemed liable to the Client and/or a third party, such liability is at all times limited to the total amount of the invoices sent by Creative Comet in the context of the Assignment, but never more than the amount paid out by the relevant (professional) liability insurance, possibly increased by the deductible amount according to the applicable policy.
13.6 A condition for the right to any compensation under this article is that the Client must notify Creative Comet in writing and with reasons within 3 months after discovering or reasonably having been expected to discover the shortcoming. Any claim against Creative Comet under the Assignment expires on the earliest of the following dates: 12 months after the Client was or should have been aware of the damaging fact, or 12 months after the termination of the Assignment.
Article 14: Complaints
14.1 A complaint regarding the performed work or an invoice amount must be submitted to Creative Comet in writing within thirty days after the dispatch of the documents or information to which the Client objects, or, if the Client can demonstrate that the shortcoming could not reasonably have been discovered earlier, within thirty days after discovering the shortcoming. Failure to meet this deadline results in the forfeiture of all claims.
14.2 In the case of a valid complaint, Creative Comet has the option to adjust the invoice amount, make corrections free of charge, or redo the relevant work, or to wholly or partially cease performing the assignment.
Article 15: Applicable Law and Competent Court
15.1 Dutch law applies to the Assignment Agreement and these General Terms and Conditions.
15.2 Disputes arising from or related to the Assignment Agreement to which these General Terms and Conditions apply, as well as disputes regarding these General Terms and Conditions, shall be brought before the competent court in Amsterdam, or, at Creative Comet's sole discretion, before the competent court of the Client's place of residence or business.