Terms and Conditions

1 – Definitions of 5 A.M. Studios
5 A.M. Studios: The private company with sole proprietorship 5 A.M. Studios, having its registered office and principal place of business, according to its Articles of Association, at Schaafstraat 26F in Amsterdam. Chamber of Commerce: 57493650 / VAT: NL0013.78.563.B82. (5 A.M. Studios | Chamber of Commerce).

Client: The party who gives an assignment to 5 A.M. Studios.
Supplier: The person, partnership or company providing products and/or services to 5 A.M. Studios.
Agreement: The agreement between 5 A.M. Studios and the Client and/or Supplier.
Activities: All services to be provided by 5 A.M. Studios for the Client and in particular the service provision in connection with developing the strategy, developing trademark identities, developing and carrying out branding and designing, developing and implementing advertisement and communication concepts. The Activities specified to a greater or lesser extent that 5 A.M. Studios intends to carry out for the Client as well as the estimate of the associated costs.
Fee: The remuneration agreed between 5 A.M. Studios and the Client in return for carrying out the Activities.

2 – Applicability
2.1 These General Conditions are applicable to all legal relationships between 5 A.M. Studios and the Client including all Activities provided by 5 A.M. Studios and in particular the services as described in the Offer.

2.2 All stipulations in these General Conditions are also formulated for all managing directors of 5 A.M. Studios and all persons working for 5 A.M. Studios and/or whom 5 A.M. Studios has engaged.

2.3 Any deviations from these General Conditions will only be valid if they have explicitly been agreed in writing. 5 A.M. Studios explicitly rejects the applicability of the general (purchase) conditions applied by the Client.

3 – Warranty
3.1 5 A.M. Studios will carry out the Agreement to the best of its understanding and ability and in accordance with the requirements of good workmanship.

3.2 In carrying out the Activities 5 A.M. Studios will observe the highest degree of care with regard to the interests of the Client. In particular, 5 A.M. Studios will observe secrecy with regard to all data and information provided by the Client in connection with the Agreement.

3.3 If and insofar as it is required for the proper performance of the Agreement, 5 A.M. Studios will be entitled to have the Activities carried out by third parties. To this end, the parties can arrange a fee further to be agreed.

3.4 The Client is aware and agrees that the Activities of 5 A.M. Studios do not include carrying out any investigation into the existence of patent rights, trademark rights, drawing or model rights, copyrights and portrait rights of third parties.

4 – Offers
4.1 All Offers are entirely without obligation and 5 A.M. Studios will only be bound to an Offer if the respective Offer has been signed by the Client and has been received by 5 A.M. Studios within fourteen (14) days. 5 A.M. Studios will be entitled to revoke the Offer immediately after receipt of the acceptance.

4.2 The prices stated in the Offer are excluding VAT and other levies by the authorities as well as any (out of pocket) costs to be incurred in connection with the Agreement including dispatch and administrative costs and travel expenses, unless otherwise stated in the Offer.

4.3 In the event that in performing the Agreement any deviations occur with regard to the Offer, 5 A.M. Studios must inform the Client of this as soon as possible.

5 – Performance of the Agreement
5.1 The Agreement is formed at the moment that either 5 A.M. Studios has received in return the Offer signed by the Client or when 5 A.M. Studios has begun to carry out the Activities with the Client’s approval. The signed Offer, these General Conditions and any additional written agreements jointly form the entire representation of the rights and obligations of the parties and replace any previously written and verbal estimates, announcements and all other correspondence.

5.2 If the acceptance differs, whether or not in minor points, from what has been stated in the Offer, 5 A.M. Studios will not be bound by this and the Agreement will not be formed in accordance with this different acceptance unless 5 A.M. Studios has indicated otherwise in writing.

5.3 Not meeting the expectations of the Client with regard to the Activities carried out by 5 A.M. Studios, will not be a reason to review and/or carry out the Activities again free of charge.

5.4 In the event that the Client wants to amend the contents of the Agreement, the Client has to inform 5 A.M. Studios immediately in writing of the amendments it requires. The amendments in the Agreement must then be accepted in writing by 5 A.M. Studios. All extra costs as a result of such amendments will be at the expense of the Client.

5.5 The Client must ensure that all data that 5 A.M. Studios has indicated are desirable or that the Client should reasonably understand are necessary for the performance of the Agreement must be provided to 5 A.M. Studios within due time. If the data required for the performance of the Agreement have not been provided to 5 A.M. Studios within due time, 5 A.M. Studios will be entitled to suspend the performance of the Agreement and charge the Client for the costs arising from this according to the usual rates.

5.6 5 A.M. Studios will not be liable for loss of any nature whatsoever that has been caused by 5 A.M. Studios basing itself on the inaccurate and/or incomplete information or documentation provided by the Client.

6 – Contract term and completion time
6.1 The Agreement is entered into for an indefinite period of time unless it otherwise arises from the nature of the Agreement or the parties have explicitly agreed otherwise in writing.

6.2 In the event that in connection with the performance of the Activities a period has been agreed between 5 A.M. Studios and the Client, this period will only be an approximation unless explicitly agreed otherwise in writing. With regard to the agreed delivery times, 5 A.M. Studios does not offer any guarantee and any late delivery does not entitle the Client to compensation, dissolution of the Agreement or suspension of any obligation towards 5 A.M. Studios.

7 – Fee and costs
7.1 In forming the Agreement the parties can agree a fixed Fee.

7.2 If no fixed Fee has been agreed, the Fee will be determined on the basis of the actual hours worked. The Fee will be calculated according to the usual hourly rates of 5 A.M. Studios applicable to the period in which the Activities have been performed.

7.3 5 A.M. Studios reserves the right to charge a surcharge in the event that 5 A.M. Studios- at the request of the Client – performs its Activities or a part of them in the evening or in the weekend.

7.4 With regard to an Agreement with a term of more than four (4) weeks the costs payable will be charged periodically. In addition, 5 A.M. Studios will be entitled in connection with an Agreement with a Fee of at least 5,000 euros to invoice the Client for 50% of the Fee prior to the performance of the Activities.

7.5 All (commercial) production and (ether) media costs must have been received by 5 A.M. Studios from the Client before the moment at which 5 A.M. Studios is obliged to pay these costs to third parties. 5 A.M. Studios must have received postage costs and other distribution costs of advertising mail from the Client before dispatch/distribution.

7.6 5 A.M. Studios is entitled to increase the Fee if it appears during the performance of the Activities that it cannot reasonably be expected of 5 A.M. Studios that 5 A.M. Studios carries out the agreed Activities for the Fee originally agreed.

7.7 5 A.M. Studios will be entitled to set-off any price changes with the Client that occurred after the Agreement has been entered into.

7.8 The agreed price between 5 A.M. Studios and the Supplier as represented in the Agreement is a fixed price that can only be adjusted after the prior written consent from 5 A.M. Studios.

8 – Payment
8.1 The Client is obliged to pay to 5 A.M. Studios all invoices of 5 A.M. Studios within the statutory payment period applicable between companies in the Netherlands of thirty (30) days after the invoice date. Any objections to the amounts of the invoices will not suspend the payment obligation of the Client.

8.2 If the Client remains in default of payment within the period of thirty (30) days, the Client will be in default by operation of law. In that case, the Client will owe the statutory interest applicable in the Netherlands on the amount due and payable. The interest on the amount due and payable will be calculated from the moment that the Client is in default until the moment that the amount has been paid in full.

8.3 Any payment by 5 A.M. Studios will only become due after delivery and a proper performance by its counterpart of its obligations has taken place unless explicitly otherwise agreed in writing.

9 – Complaints
9.1 Any complaints about the Activities must be reported by the Client in writing within eight (8) days after discovery but not later than within fourteen (14) days after completion of the respective Activities. Such a notice of default must include an as accurate as possible description of the failure alleged by the Client so 5 A.M. Studios will be able to respond adequately.

9.2 If at the discretion of 5 A.M. Studios a complaint is well founded, 5 A.M. Studios must be given the opportunity by the Client to carry out the Activities once again. Should it no longer be possible to perform the Activities again according to objective criteria, 5 A.M. Studios will only be liable within the limits of Clause 10.

10 – Liability
10.1 Considering the nature of the Activities and the subjective assessment aspects playing a role in the Activities, 5 A.M. Studios will not be liable for any loss suffered by the Client as a result of any conduct by 5 A.M. Studios in performing the Agreement or otherwise, except if there is intention or gross negligence. Consequential loss, including lost profits or losses suffered will never be eligible for compensation.

10.2 In the event that 5 A.M. Studios is liable for the loss suffered by the Client, the loss that 5 A.M. Studios is obliged to compensate shall never exceed the invoice value of the Activities of which the defect has been the cause of the loss or – if this cannot be ascertained – the invoice value of the Activities which 5 A.M. Studios carried out for the Client at the time that the event causing the loss occurred less the out of pocket expenses with regard to what has been supplied.

10.3 The Client shall indemnify 5 A.M. Studios against any claims by third parties for loss associated with or arising from the Agreement. All this does not affect the duty of care of 5 A.M. Studios as meant in Clause 3.

10.4 The exclusions and limitations of liability as stated in this Clause as well as the indemnities as meant in Clause 13 are also stipulated for, and for the benefit of, the subordinates of 5 A.M. Studios and any other person of whose assistance 5 A.M. Studios makes use in carrying out the Activities.

10.5 The liability for Activities for which 5 A.M. Studios instructed a third party, is limited to the extent that this third party effectively indemnifies 5 A.M. Studios.

11 – Intellectual property
11.1 Any intellectual property rights associated with or arising from the assignment given to 5 A.M. Studios and/or the Activities carried out by 5 A.M. Studios are at all times vested in 5 A.M. Studios.

11.2 The Client will acquire – but only after the Client has fulfilled all its payment obligations and exclusively in the case that the Agreement has not been terminated prematurely – a license to use anything that 5 A.M. Studios has created in the performance of the Activities for the Client, and as such has been chosen by the Client, for one (1) year in the Netherlands in the manner as determined in advance.

11.3 5 A.M. Studios and the Client can determine pursuant to the Agreement that the geographic area and period of time of the rights as meant in Clause 11.2 will be extended.

11.4 The Client and 5 A.M. Studios can determine for each assignment that the rights meant in Clause 11.1 will be transferred to the Client by means of a deed or that the right of use will be extended to other forms of operation.

11.5 If during the Agreement the Supplier, whether or not in cooperation with third parties, creates copyright protected works, the Supplier will guarantee towards 5 A.M. Studios that the Supplier will transfer to 5 A.M. Studios the full, global, unlimited and unencumbered copyright of these works, at any rate with regard to the contribution to it by the Supplier and the third parties engaged by the Supplier, including all powers and rights that are granted or will be granted to it by law, such as but not limited to any right to reproduce these works or have them reproduced and disclose them anywhere in the world and perpetually for any purpose, in any way and in any form whatsoever, which are already known now or will be known in future, for the duration of the copyright, which transfer has been accepted by 5 A.M. Studios.

11.6 The Supplier indemnifies 5 A.M. Studios against any and all claims by third parties in connection with the provisions set out in Clause 11.7.

11.7 The Supplier irrevocably waives any right to put up a defense against the disclosure of the works as meant in Clause 11.5 without stating its name, the disclosure of these works under any other name than its/his own and against any other change in the respective works (the so-called rights to personal recognition).

11.8 5 A.M. Studios is entitled to sign and/or use anything that has been created by 5 A.M. Studio for the promotion of its own organisation and service provision.

11.9 If the Activities consist (for instance) of organising an event, 5 A.M. Studios will exclusively be entitled to register the name of the event as a trademark. If such a trademark has been registered in the name of the Client, the Client shall at the first request transfer this trademark to 5 A.M. Studios free of charge.

12 – Force majeure
12.1 The term force majeure means any circumstance on the basis of which any (further) fulfillment of the Agreement by 5 A.M. Studios cannot reasonably be required. This includes in any event – but not exclusively – loss of data as a result of a computer failure, a virus infection or computer hacking by third parties, machine breakdown and other calamities preventing or restricting the business operations of 5 A.M. Studios.

12.2 In the event that 5 A.M. Studios is prevented by force majeure from carrying out all or part of the Activities, 5 A.M. Studios will be entitled without any judicial intervention, at its discretion, either to suspend the performance of the Activities or to consider the Agreement fully or partially dissolved, without 5 A.M. Studios being obliged to compensate any loss suffered by the Client.

12.3 In the event that at the time of a force majeure situation occurring 5 A.M. Studios has in the meantime already partly fulfilled its obligations to the Client arising from the Agreement and has partly performed Activities for the Client – and the Activities having already acquired an independent value – 5 A.M. Studios will be entitled to invoice the respective Activities separately. The Client will then be obliged to pay the respective invoice of 5 A.M. Studios.

13 – Indemnities
13.1 The Client indemnifies 5 A.M. Studios against any claims by third parties with regard to intellectual property rights to the materials or information provided by the Client that are being used in performing the Agreement.

13.2 If the Client has provided 5 A.M. Studios with information carriers, electronic files or software etc., the Client will guarantee that the information carriers, electronic files or software are free from viruses and defects.

14 – Secrecy
14.1 Both parties are obliged to observe secrecy with regard to all confidential information they obtain from each other or from another source in connection with the Agreement. Information is considered confidential if this has been communicated as such by the other party or if this arises from the nature of the information.

14.2 If 5 A.M. Studios – pursuant to a statutory provision of a court decision – is obliged to provide any third parties indicated by law or competent court with confidential information and in this connection 5 A.M. Studios cannot invoke any statutory privilege or a privilege acknowledged or allowed by the competent court, 5 A.M. Studios will not be obliged to pay compensation or damages and the Client will not be entitled to dissolve the Agreement.

15 – Termination
15.1 5 A.M. Studios is entitled to terminate the Agreement in whole or in part without any notice of default being required and without any obligation to pay compensation or – at its discretion – to suspend the further performance of the Agreement, if:

• The Client is declared bankrupt;
• The Client applies for a moratorium;
• The Client is winding up his business;
• The Client is placed under guardianship or dies; or
• The Client does not fulfill towards 5 A.M. Studios any statutory obligation or any obligation arising from the Agreement.

15.2 In the cases specified in Clause 15.1, 5 A.M. Studios will be entitled to demand the Fee payable by the Client to 5 A.M. Studios. immediately and in full.

15.3 The Client is obliged to inform 5 A.M. Studios immediately if a circumstance within the sense of Clause 15.1 occurs. In the event that a circumstance as meant in Clause 15.1 under e. occurs, the Client will be in default by operation of law and any debt to 5 A.M. Studios will become immediately due and payable.

16 – Transfer and obligations
16.1 Subject to the prior written consent of 5 A.M. Studios the Client will not be entitled to transfer in whole or in part the rights and obligations arising from the Agreement entered into under these General Conditions to any third parties.

17 – Applicable law and competent court
17.1 These General Conditions are effective as from 1 September 2004 onwards.

17.2 In the event that any provision in these General Conditions would be invalid or would be annulled, this will not affect the validity of the other provisions. In that case 5 A.M. Studios and the Client will consult each other in order to new provisions to replace the invalid or annulled provisions, observing as much as possible the purpose and purport of the original provision.

17.3 The legal relationship between the Client and 5 A.M. Studios is governed by Dutch law. All disputes between the Client and 5 A.M. Studios which might arise as a result of or in connection with the Agreement will with the exclusion of any other be settled by the competent court in Amsterdam.