Terms and Conditions
Article 1 General provisions
1.1 These general terms and conditions (“the General Terms and Conditions”) apply to all legal relationships (including quotations, agreements and all pre-contractual situations) between Merkplaats B.V. and any third party (“the client”) who instructs the Merkplaats to perform any work by de Merkplaats B.V.
1.2 Amendments and additions to any provision in the General Terms and Conditions or in each agreement to which they have been declared applicable (“the agreement”) are only valid if de Merkplaats B.V. has accepted them explicitly in writing. Changes and additions only apply to the relevant agreement (s).
1.3 If any provision of the General Terms and Conditions or the agreement is not valid, the other provisions in the General Terms and Conditions or the agreement respectively remain in force for the remainder. The invalid provision concerned will be replaced by another valid provision that will approximate the consequences intended by the invalid provision as closely as possible.
Article 2 Establishment of the agreement
2.1 The agreement between Merkplaats B.V. and the client is established at the moment that the client gives an order in writing or orally to Merkplaats to perform any services and the Merkplaats B.V. accepts this assignment. With regard to the activities for which, due to the nature and scope, no order confirmation is sent, the invoice also applies as order confirmation, which is deemed to represent the agreement correctly and completely.
2.2 All agreements and / or actions that are entered into or performed as a result of the provisions of 2.1, are entered into or are performed in connection with it, are deemed to be an implementation of the agreement.
2.3 In the case of assignments or offers and commitments from Merkplaats that are not written by Merkplaats B.V. have been confirmed, unless proof to the contrary from the client, an explanation of the content and scope of the agreement will be given exclusively by De Merkplaats. If and insofar as the client wishes to derive rights from the assignment, the assignment must be confirmed in writing.
2.4 De Merkplaats reserves the right to refuse orders without giving any reason.
2.5 the Merkplaats is entitled - if the Merkplaats deems this necessary or desirable - to engage third parties for the proper execution of the assignment given to it, the costs of which will be passed on to the client.
Article 3 Rates
3.1 The fees for the work to be performed by the Merkplaats will take place: a. For costs of intervention in registrations and other notes in trademark and design registers, including drawing up the applicable taxes, fees and any fees of foreign agents / correspondents: according to fixed rates (excl. VAT), or in accordance with the amounts specifically offered by the Merkplaats; b. for activities other than those referred to in 3.1.a: on the basis of the hours spent on the agreed upon according to an hourly rate set by the Merkplaats (excl. VAT). The applicable rates are the rates stated in the most recent rate lists or by the Merkplaats B.V. prices confirmed to the client.
3.2 The rates do not include the costs for printing plates, extra classes, drawings, document data, register extracts, legalizations, translations, classifications [etc.], which vary from case to case. / filing may arise due to publication, granting, negotiations with third parties or other activities, such as costs arising from ex officio objections or due to oppositions by third parties against the applicant. These costs are charged separately to the client. Cost estimates provided by the Merkplaats to the client are indicative and without obligation.
3.3 If prices and / or rates of price-determining factors such as, for example, taxes, wages and insurance rates undergo an increase, for whatever reason, the Marking Place is entitled to increase the rates accordingly and pass them on to the client.
Article 4 Payment
4.1 The Merkplaats will, at its own discretion, charge the client for the work to be performed by it and the costs to be incurred by it on the basis of advance invoices, interim invoices and final invoices. Overpaid monies will be refunded to the client after completion of the work.
4.2 Unless explicitly agreed otherwise in writing, advance invoices must be sent to Merkplaats B.V. within 8 days after the date of dispatch. to be paid. Interim invoices and final invoices must be paid to Merkplaats within 14 days of the invoice date. Payment must be made without any discount, deduction or settlement. The client is not entitled to suspend its payment obligations.
4.3 The value day stated on the bank / giro statements is regarded as the day of payment. Disputes of any nature whatsoever are without prejudice to the aforementioned payment obligations.
4.4 Each invoice or claim is regarded as a separate claim of de Merkplaats B.V. considered on the client.
4.5 The client remains liable at all times for the payment of the outstanding invoices in the name of the client, even if the client has indicated that it has given the assignment on behalf of a third party. If the client gives an assignment on behalf of a third party and does not wish to assume any independent obligations, this must be stated explicitly and in writing when the assignment is given.
4.6 If the client does not pay within the terms stated in Article 4.2, the client will be in default by the mere expiry of that term, without further notice of default being required. In that case, the client owes interest to Merkplaats B.V. due on outstanding claims of de Merkplaats B.V. of 1.5% on the amount due per month or part thereof, without prejudice to the Merkplaats's right to compensation on the basis of the law. As additional security for the payment of all that has become or will be owed by the client to the Merkplaats, the client grants a first right of pledge to the Merkplaats to be deposited by the Merkplaats for or on behalf of the client by granting the order. brands or models, the acceptance of these general terms and conditions by the client will provide proof of the existence of this right of pledge. de Merkplaats B.V. will be entitled in the event of default in payment by the client to enter this right at the expense of the client in the relevant registers. The right of pledge lapses upon payment by the client of all that the client owes the Merkplaats. de Merkplaats B.V. will then revoke any registration of the right of pledge at the expense of the client.
4.7 All costs of collection of the costs owed by the client, both judicial and extrajudicial costs, are for the account of the client. The amount of the amount paid Extrajudicial collection costs owed will be calculated in accordance with the applicable collection rates of the Netherlands Bar Association, or the amount of the costs actually incurred, whichever is higher. The collection costs are calculated over the entire amount owed by the client, including the aforementioned interest of 1.5%.
Article 5 Activities / warranty
5.1 the Merkplaats guarantees that it will perform the agreed work to the best of its ability.
5.2 The client explicitly agrees with the following:
a. With regard to investigations into trademarks, models, trade names, etc. to be carried out by the Merkplaats or through its intervention, no completeness is guaranteed by De Merkplaats, nor is any other guarantee given with regard to the results of such investigations. Any advice regarding the availability of a brand or model will be provided without obligation by de Merkplaats B.V. given. The decision whether or not to use a trademark or design or have it used, as well as all other decisions as a result of an investigation, are taken entirely by and at the expense and risk of the client.
b. In the case of investigations, the task of de Merkplaats B.V. limited to examining trademarks and / or designs and / or trade names, depending on the order of the client, which are registered in the relevant trademark or design registers, and which have been made public by the relevant authorities. The client must itself take measures for market surveys and other surveys that (partly) determine or may determine the admissibility or availability of a trademark.
c. In the event of requests to register a trademark or design in a trademark or design register, it is the task of de Merkplaats B.V. limited to drawing up the necessary documents or having them drawn up and submitting them to the competent authorities. The client is at all times responsible for the timely and proper delivery to Merkplaats B.V. of all documents, prints and data required by it. In particular, Merkplaats B.V. not obliged to perform actions in advance on its own initiative with regard to the availability and / or admissibility and / or protectability of a trademark or design.
d. No guarantee is given by the Merkplaats B.V. information regarding the completeness of the monitoring.
e. If a term is set for the submission of documents or data, or for any action whatsoever, de Merkplaats B.V. take the necessary action in a timely manner to the best of our ability In all cases, the client is responsible for the timely delivery of the required documents or data. de Merkplaats B.V. in the absence of clear instructions from the client, is at all times entitled, but never obliged, to act at its own discretion, such at the expense and risk and at the expense of the client. The client hereby grants an express power of attorney for this purpose. Unless explicitly agreed otherwise in writing, Merkplaats B.V. are not obliged to perform the work assigned to it before or at a specific time.
f. In the event of renewal of trademark or design registrations or other actions necessary to maintain rights, De Merkplaats B.V. try to remind the client of the relevant term. However, the client is responsible for keeping such deadlines. The client is obliged to immediately notify the change of address to Merkplaats B.V. to pass.
g. Unless explicitly agreed to the contrary in writing, official investigations carried out by the Benelux Trademarks Office must have a purely informative character (determined by the Benelux Trademarks Office) and the Merkplaats B.V. cannot take any responsibility for the completeness of these studies. Any assessment of these studies takes place without any obligation.
Article 6 Liability
6.1 De Merkplaats B.V. does not guarantee the correctness and / or completeness of the information provided by or on behalf of the client to Merkplaats B.V. information provided and does not accept any liability for this or for the consequences thereof. The provision of incorrect and / or incomplete information by or on behalf of the client (also in the case of provision in good faith) gives De Merkplaats B.V. the right to apply Article 8 (termination).
6.2 Due to the nature of the activities of the Merkplaats B.V. and the subjective assessment aspects that always play a role is de Merkplaats B.V. not liable for any damage resulting from its activities, except in the case of intent or gross negligence.
6.3 For damage of whatever nature caused by acts or omissions by personnel employed by Merkplaats B.V. or other persons whose services Merkplaats B.V. makes use, including advice by these persons, is de Merkplaats B.V. not liable except in case of intent and / or gross negligence.
6.4 Without prejudice to the provisions of the General Terms and Conditions, the total liability of de Merkplaats B.V. that could nevertheless arise, always limited to a maximum of the amount of the cover of the insurance by de Merkplaats B.V. professional and business liability insurance taken out in this respect.
6.5 The burden of proof with regard to any alleged liability of de Merkplaats B.V. rests with the client. The client accepts this burden of proof.
6.6 The client will pay Merkplaats B.V. indemnify against claims from third parties for damage related to or ensuing from the agreement or any by de Merkplaats B.V. trademark application or other act performed pursuant to the agreement.
Article 7 Force majeure
7.1 In case of force majeure, Merkplaats B.V. is entitled, without judicial intervention, to either suspend the performance of the agreement as long as the circumstance causing the force majeure continues, or to terminate the agreement in whole or in part, without being obliged to pay any compensation or fine. In case of suspension, Merkplaats B.V. are still entitled to terminate the agreement in whole or in part.
7.2 Force majeure includes all circumstances as a result of which Merkplaats B.V. is temporarily or permanently unable to fulfill its obligations, such as the lack of sufficient information or the provision of incorrect information by the client or the lack of sufficient cooperation by the client as well as fire, floods, strikes, disturbances, obstructions in the transport, mobilization, war, computer failure and failures in postal and telecommunication activities, non-provision of facilities by public utility companies and furthermore all circumstances in which not reasonably from de Merkplaats BV it can be expected that it (further) fulfills its obligations towards its client.
7.3 de Merkplaats B.V. is always entitled to demand payment for the activities or disbursements that have been carried out or that have become due in the performance of the agreement concerned before the circumstances causing force majeure arose.
Article 8 Termination / suspension / compensation
8.1 If the client:
applies for his own bankruptcy, is declared bankrupt, assigns an estate, submits a request for suspension of payments; or
b. proceeds to discontinue or liquidate his company or an important part thereof, or if a decision is taken to do so; or
c. any obligations under the law or contractual conditions towards Merkplaats B.V. not or not properly or not on time; the client is deemed to be in default by operation of law and any (remaining) debt will be owed to Merkplaats B.V. immediately due and payable.
8.2 de Merkplaats B.V. is entitled in the cases referred to in paragraph 1, without any obligation to pay compensation and without prejudice to its other rights, such as rights with regard to fines already expired, interest and the right to compensation, and without notice of default or judicial intervention being required:
a. to terminate the agreement in whole or in part by means of a written notification to that effect to the client and / or
b. any by the client to Merkplaats B.V. immediately claim the amount due in full and / or
c. to obtain security from the client for (timely) fulfillment of his payment obligations before further performing the agreement.
Article 9 Obligation to provide information
The client is obliged to take the Merkplaats B.V. to be immediately informed if (one of) the circumstances referred to in Article 8 paragraph 1 under a and b occur (s), or in case of force majeure on the basis of which the client fulfills his obligations towards de Merkplaats B.V. is unable to comply or is unable to provide information about facts and circumstances that can (partly) influence the assessment of a situation about which de Merkplaats B.V. will give advice.
Article 10 Applicable law and competent court
10.1 At all between Merkplaats B.V. agreements concluded and / or actions performed by the client are exclusively governed by Dutch law.
10.2 Disputes between the parties will in the first instance be exclusively submitted for settlement to the competent court in Amsterdam, without prejudice to the law of de Merkplaats B.V. to bring any disputes before the competent court according to the law.