These terms and conditions apply to any offer, quotation, application for or submission of a Design and every agreement between Design in the Crowd B.V. (operating as “OVG”) and the company or person who initiates a contest on the website www.ontwerpen-voor-geld.nl (“Principal”) or the company or person who adds a submission to such a competition (“Designer”), unless the parties expressly agreed otherwise in writing.
Article 1. Contract formation
The agreement between OVG and Principal is concluded as soon as OVG has confirmed
in writing or electronically the order by Principal to initiate a competition or in case Principal has confirmed in writing or electronically the order in its entirety and has
received a written or electronic confirmation from OVG.
The order for a competition must at least contain: a description of the competition, the term, the manner of payment and the prize to be paid for the winning design.
The agreement between OVG and Designer is concluded as soon as Designer submits a
design on the website www.ontwerpen-voor-geld.nl in connection with a competition.
OVG reserves the right to refuse offers or applications if in her professional judgment it
would be prudent to do so.
OVG reserves the right to charge reasonable administration or processing fees.
Article 2. Execution of the agreement
After conclusion of the agreement between OVG and Principal and payment of all
amounts due OVG shall publish the order for the competition on its website and advertise the competition. Subsequently designers can submit their Designs for the competition using the means provided by OVG to this end.
OVG shall facilitate the competition and retain and make available to Principal all submissions for the duration of the competition and a reasonable period thereafter.
Subsequently OVG has the right to remove all submissions and related competition data, without any liability for damages towards Principal or Designer for loss of data or otherwise.
Principal shall select after expiry of the term of the competition one Design from the available submissions as being the winning submission. In this manner Principal obligates itself to pay the prize to Designer or to VG (see article 5) for the winning submission. Principal is at all times solely responsible for the quality, term and approval of a Design.
In case Principal does not select a winning Design within a reasonable period in case of a Guaranteed Payment, OVG may on behalf of Principal select a winning Design. Principal shall accept this selection.
The application of articles 7:404 and 7:407 subsection 2 of the Dutch Civil Code is expressly rejected in the course of the agreement and in the relationship between Designer and Principal.
In case the Design of Designer is selected as winning, Designer shall within five working days thereafter supply the Design including all source files and source codes that are reasonably necessary or that are indicated by OVG or Principal to be necessary.
Principal must in all cases direct all complaints regarding the Design directly to Designer. Complaints with OVG can only be filed the performance of obligations by OVG as arising out of the agreement.
Article 3. Intellectual property
Designer guarantees OVG and Principal that the Design and all parts thereof do not infringe on any intellectual or industrial property rights. Furthermore Principal guarantees that he is entitled to initiate the competition and that the description thereof reasonably seen shall not lead to infringements of third-party rights. This clause shall survive termination of the agreement.
In case of reasonable doubt as to the accuracy of the guarantee of the previous clause, OVG is entitled to disqualify the submission or to suspend the competition until it is adjudicated by final decision that OVG by the placing of the Design has not infringed on any rights. After that OVG shall restore the submission(s). In case such doubts arise after the Design has been elected the winning submission, OVG can still withdraw the submission, after which Principal must elect a new winner.
All intellectual and industrial property rights regarding submissions shall rest with Designer. OVG receives a limited license for use of the Design in connection with the competition and for its own promotional purposes during and after the competition.
Designer shall transfer to Principal all intellectual and industrial property rights (such
as copyrights, neighboring rights and the like) regarding the Design that Principal has elected as winning submission. In case perfection of such transfer requires further acts (such as signing legal documents or registration with government agencies anywhere in the world) Designer will provide its reasonable cooperation with such acts. Any costs (such as fees or costs of notaries public) for such acts shall be borne by Principal, although Designer shall not receive any hourly fees for carrying out such acts.
In case transfer of such rights is impossible, Designer hereby grants Principal a perpetual, unlimited and exclusive license to use the Design for all purposes and in all media, anywhere in the world. This implies the loss of such rights by Designer to exploit the Design himself or to supply the Design to other customers.
In case no Guaranteed Payment has been chosen, Designer is not required to transfer any rights or grant any exclusive license as provided above until Principal has paid the prize for the winning Design.
Principal only receives the intellectual property rights of the winning Design. For all other Designs Principal expressly does not receive any rights.
Article 4. Changes to the agreement
In case during execution of the agreement it becomes clear that a proper execution requires changes or additions, the parties will jointly discuss the required changes. OVG is required to charge fees in case any changes to the agreement bring actual additional costs.
Without being in default OVG may refuse for any reason any change to the agreement.
Article 5. Payment
Principal must choose for every competition between a direct payment to Designer or through OVG as a Guaranteed Payment.
In case Principal has chosen for the Guaranteed Payment, Principal must pay the prize to OVG within five working days after the agreement enters into force, together with the supplement charged by OVG. After receipt of all payments OVG shall publish the competition on the website. In case the payments have not been received in time, OVG is entitled to cancel the agreement effective immediately.
In case of the Guaranteed Payment OVG shall pay the Designer the prize within at most ten working days after article 2.6 has been fulfilled. In case less than ten submissions have been received for a particular competition and Principal has indicated its desire not to elect a wining submission, OVG shall refund the payment to Principal and cancel the competition.
In case Principal has chosen for direct payment to Designer, Principal must pay the prize to Designer within ten working days after article 2.6 has been fulfilled. OVG is not liable towards Designer for any failure to pay by Principal.
Payments are carried out in accordance with the Uitbetaalde bedragen aan derden (IB 47) rule set by the Dutch Tax Authority. Designer must report the payments as appropriate himself. The party that has to pay to Designer is entitled to demand a Verklaring Arbeidsrelatie (VAR) before making any payout.
OVG is entitled to report any payments made to Designer together with Designer’s personal data to the Dutch Tax Authority.
Article 6. Disqualification, suspension and account removal
OVG reserves the right to suspend or cancel competitions, submissions or accounts at any time if deemed appropriate. In case OVG exercises this right, OVG will inform Principal or Designer at least 24 hours in advance.
In any case an appropriate reason is:
- Designer or Principal failing to fulfill any obligation under the agreement;
- Designer using an account in bad faith;
- Designer having colluded with Principal so as to win a competition;
- a competition or any submissions are insulting, libelous, immoral or unethical or threaten to negatively affect OVG’s reputation;
- a competition or submission obviously infringes third-party rights or in case Designer repeatedly has been accused by third parties to infringe their rights;
- an account is being used for illegal or fraudulent activities or in a manner that can be reasonably considered to be defamatory, libelous, slanderous, threatening, tortuous, vulgar, obscene or otherwise objectionable;
- a submission creating an unreasonable stress on the OVG servers.
After suspension OVG will consider a request for reinstatement by Principal or Designer
but OVG is not required to fulfill such a request.
OVG is not liable under any circumstances for the consequences of suspending or cancellation of a competition, submission or account.
In case Principal or Designer is negligent with any obligation under the agreement, OVG may remove the competition or submissions involved from the website and bar them from further participation.
Article 7. Liability of OVG
OVG accepts legal liability for damages only as provided by this article.
OVG is liable towards Principal or Designer only for an imputable failure to perform any of its obligations under the agreement, and then only for the value of the obligation in question.
Any liability for any other kind of damage is excluded, including but not limited to indirect damages, punitive damages, consequential damages or compensation for lost profits, damages as a result of delays in performance, damages due to loss of data, damages due to exceeding any time limits as a result of changed circumstances, damages as a result of insufficient cooperation, information or materials or damages as a result of advice or information provided outside the scope of this agreement.
Any compensation for damages shall be limited to the amount of the prize of the competition, except in case the damage was caused as a result of intentional acts or gross negligence.
Any liability of OVG for an imputable failure exists only if OVG has been put on notice of default in writing and OVG has not corrected its failure within a reasonable period afterward.
In case a correction of the failure is impossible, liability shall exist only after OVG has been put on notice of the existence of the failure.
Any liability for OVG shall expire within one year after the date the cause of damages occurred, in case OVG has not been properly put on notice in accordance with the previous clause.
Designer and Principal shall indemnify and hold harmless OVG for any third-party claims in connection with the order or the submission of a Design, except and to the extent Designer or Principal can prove that the damages were caused by intentional acts of OVG.
Article 8. Force majeure
A party shall not be obliged to perform any obligation if it is substantially prevented from doing so by a situation of force majeure, until such force majeure has been resolved.
In case a situation of force majeure exists for more than two months OVG may cancel the agreement without obligation to compensate Designer or Principal for any damages.
To the extent OVG has partially fulfilled any obligations under the agreement or is able to fulfill such obligations, OVG is entitled to separately invoice for those obligations. Principal must pay those invoices as if they were separately invoiced.
Article 9. Duration and termination
The agreement between OVG and Principal and between OVG and Designer is entered into for the duration of the competition and its resolution.
Principal may not cancel or withdraw a competition at any time, except as provided in article 5.3.
Designer is entitled to withdraw a submitted Design from the competition at any time and thereby end its participation.
In case the execution of certain activities or the delivery of certain goods by OVG is to be performed before a certain time limit, such time limit shall not be interpreted as fatal. In case of any time limits being exceeded Principal must first put OVG on notice in writing.
OVG is entitled to annul the agreement with immediate effect in case of Principal or Designer applies for a suspension of payment;
Principal or Designer enters a state of bankruptcy;
Principal or Designer imputable fails to perform any obligation under this agreement and does not rectify the failure within a reasonable term after being put on notice thereof.
Article 10. Changes to these terms and conditions
OVG has the right to change or add to these terms and conditions.
Changes shall apply to existing agreements 30 days after their announcement on the OVG website or after electronic notification to Principal or Designer.
In case Principal or Designer does not wish to accept any change in these terms and conditions, he may terminate the agreement with effect on the date the changes are to enter into force.
Article 11. Choice of law and venue
Dutch law applies to this agreement.
Except as provided by mandatory law, all disputes arising out of this agreement shall be brought before the competent courts for the principal place of business of OVG.
Article 12. Miscellaneous provisions
Deviations from these terms and conditions are valid only if and to the extent those have been confirmed in writing by OVG. In case OVG has agreed in writhing to such deviations any other conditions remain into force even if not expressly stated so in such writing.
In case any provision of this agreement is ruled invalid by a competent court, such invalidity shall not affect the remainder of this agreement. The parties in such a case shall negotiate a replacement provision that approximates the invalidated clause as closely as possible within the boundaries of the law.
In case of any unclarity regarding the interpretation of any provisions in these terms and conditions or a situation arises that is not addressed in these terms and conditions, any interpretation shall be done within the spirit of the existing provisions.
A failure to promptly or strictly enforce any provisions of the agreement does not imply that such provisions do not apply or that OVG would have lost the right to enforce such provisions in different situations.
The version of any communication as stored by OVG shall constitute binding proof of the content of such communication, unless Principal or Designer can provide counter-proof.
The parties shall keep each other informed in writing of any changes to name, postal address, e-mail address, phone number and if requested bank or postal account number.