General Terms and Conditions Merkenbureau Heemskerk B. V.
Article 1 – General
Merkenbureau Heemskerk BV, hereinafter referred to as “the Trademark Agency”, is particularly engaged in the registration of trademarks and design rights, copyrights and domain names and research into the availability and monitoring thereof and the provision of (legal) advice on intellectual property, hereinafter referred to as “the Services”.
Article 2 – Applicability
2.1 These terms and conditions ( “General Conditions”) apply to all legal relationships (including tenders, contracts and all pre-contractual situations) between the Trademark Agency and any third party (“the Client”) which orders the Trademark Agency to perform any work in particular services. 2.2 These General Conditions are also stipulated for other third parties, whether or not employed with the Trademark Agency, enabled in the execution of a contract by the Trademark Agency or who may be liable in connection therewith.
2.3 If any provision of the General Conditions is found to be invalid, the remaining provisions will remain in force. The relevant invalid provision shall be replaced by a provision that will be valid and that shall be as close to the intended purpose of the replaced provision as possible.
Article 3 – Performance of our activities
3.1 The Trademark Agency shall perform the agreed activities to the best of its abilities and knowledge. There is a commitment on the part of Trademark Agency. There is no obligation to guarantee a certain result.
3.2 If a contract, an offer or other promise by the Trademark Agency is not confirmed in writing by the Trademark Agency, the Client can not derive any rights to the contract or commitment.
3.3 Subject to evidence proving otherwise by the Client, the explanation by the Trademark Agency of the content and scope of the agreement prevail.
3.4 The Trademark Agency reserves the right to refuse given instructions without giving reasons. 3.5 The Trademark Agency is authorized to engage third parties in the execution of the contract without prior notice to the client. Concurring costs are charged to Client.
3.6 The Trademark Agency does not guarantee the accuracy or completeness of its (or its intervention) carried out consultancy and research (and results) regarding trademarks, designs, trade names, domain names and other intellectual property rights. Client acknowledges that the activities of the Trademark Agency are of an advisory nature.
3.7 Advice regarding the possible availability of a trademark, design, domain name or other intellectual property right given by the Trademark Agency is given without commitment.
3.8 The consequences of a decision by a client to start or refrain from using a trademark, design, trade name or domain name, and any other decisions following advice given by the Trademark Agency, shall be borne by Client.
3.9 The Trademark Agency is not held to perform assigned instructions before a certain date, unless otherwise agreed in writing.
Article 4 – Liability and damages
4.1 The Trademark Agency can not be held liable to the Client for any damages, except those subject to gross negligence and intent. For any liability claim against the Trademark Agency by the Client, the burden of proof regarding the relevant liability and damages, rests entirely with the Client and the Client accepts this burden.
4.2 If the Trademark Agency – without prejudice to the extent of the foregoing – is deemed to be liable to Client on any ground whatsoever, such liability is always limited to the value of the corresponding invoice of the contract, which gave rise to the injury. In no event shall thecompensation provided in this paragraph be more than € 2000.00.
4.3 The Trademark Agency accepts no liability for damages arising from or related to the inaccuracy or untimely information provided by Client to the Trademark Agency. Providing false and/or incomplete data by Client (even though in good faith) is a deficiency which could cause the Trademark Agency to terminate the agreement.
4.4 If circumstances lead to claims by third parties against the Trademark Agency, the Client will indemnify the Trademark Agency for these. The Trademark Agency shall never be liable for consecutive or punitive damages.
Article 5 Force Majeure
5.1 In case of force majeure, the Trademark Agency is entitled, without judicial intervention, to suspend the performance of the Services during the existence of the force majeure, or to – either in whole or partially – dissolve the agreement without any compensation or penalty to be taken. 5.2 Force majeure includes all circumstances that are beyond the control of the Trademark Agency and which temporarily or permanently prevent performance of an obligation under the Agreement. Force majeure shall be understood to include: sickness with the Trademark Agency and the situation that the Trademark Agency does not have enough information or false information, provided by the Client.
5.3 The Trademark Agency is entitled to demand payment of the work, which in the exercise of the agreement was done prior to the circumstances causing the force majeure. The Client is always obliged to pay compensation to the Trademark Agency for the activities which during the exercise of the agreement were performed and also for the costs incurred before the circumstances leading to the force majeure started.
Article 6 Insolvency/moratorium/damages
6.1 If (I) insolvency proceedings are filed, a moratorium is applied for or a debt rescheduling arrangement is made by or with respect to the Client, or (ii) the Client ceases or proceeds to wind up its enterprise or a material part thereof, or a resolution is adopted to do so, or (iii) the Client fails to fulfil one or more obligations towards the Trademark Agency, or fails to do so properly or in time, all other (remaining) debts the Client owes the Trademark Agency shall become immediately due and payable.
6.2 The Trademark Agency shall be entitled, in the instances mentioned in paragraph 1, without being bound to pay any compensation and without prejudice to any of its other rights and without prior notice of default being required, to dissolve the Agreement, or a part of it, out of court, or to demand security from the Client for the (timely) fulfilment of the payment obligations before executing the rest of the Agreement.
Article 7 Duty to inform
The Client shall notify the Trademark Agency immediately if one of the instances referred to in article 6, paragraph 1, occurs, or if the Client is unable to fulfil his obligations towards the Trademark Agency due to an event of force majeure.
Article 8 Applicable law; competent court
All agreements and performed services between the Trademark Agency and the Client are governed exclusively by Dutch law. The competent court in Amsterdam is entitled to all disputes between Trademark Agency and Client.