Terms of service

These General Terms and Conditions of Melli Mello B.V. (hereinafter "Melli Mello") are registered with the Chamber of Commerce in The Netherlands under number 64927016.

Article 1. Definitions

The following terms shall have the meaning assigned to them herein:
1. Agreement: the entire content of these General Terms and Conditions and the document(s) offered concerning the Project and/or the sale and delivery of Products and/or the granting of the Licence.

2. Customer: the (legal) person or entity who enters into a contract with Melli Mello.

3. Customer: all materials, information, photographs, writings and other creative content provided by Customer for use in the preparation and/or inclusion of the Products.

4. Customer Products: the Customer Products which are supplied under the trademark(s);

5. Deliverables: the services and work products which will be delivered by Melli Mello to the Customer in the form and media specified in the quotation.

6. Final Art: all creative content developed or created by Melli Mello, or commissioned by Melli Mello, exclusively for the Project and included in and delivered as part of the Final Deliverables, including and by way of example, but not limited to, all visual designs, visual elements, graphic design, illustration, photography, typographic edits and text, modifications to Client Content, and Melli Mello's selection, arrangement and coordination of such elements along with Client Content and/or Third Party Materials.

7. Final Deliverables: the final versions of the Deliverables delivered by Melli Mello and accepted by the Client.

8. General Terms and Conditions: the present general terms and conditions of Melli Mello.

9. Melli Mello: the designer Melli Mello B.V., a private company with limited liability incorporated under Dutch law, having its registered office in Veenendaal, at the Ravelijn 14, 3905 NV in the Netherlands, registered with the Dutch Chamber of Commerce under number 64927016 (KvK).

10. Licence: the granting of a non-transferable right and licence to use the Brands;

11. Preliminary Works: all works of art including, but not limited to, concepts, sketches, visual presentations, or other alternative or preliminary designs and documents developed by Melli Mello, which may or may not be shown and delivered to the Customer against payment, but which do not form part of the Final Art.

12. Products: the products of Melli Mello which are supplied under its brand(s);

13. Project: the scope and purpose of the identified use of the work product by the client as described in the offer or in any other proposal.

14. Services: all services and the work product to be supplied by Melli Mello to the Customer as described and further described in the Quotation.

15. Third Party Materials: proprietary materials of third parties incorporated into the Final Deliverables, including but not limited to stock photographs or illustrations.

16. Trademarks: all registered or to be registered trademarks, trade names, words, symbols, designs, logos or other devices or designs of Melli Mello.

Article 2. Applicability

1. The General Terms and Conditions apply to all offers, quotations, agreements and contracts from Melli Mello, unless otherwise stated.

2. The general terms and conditions apply to all offers and to the realization, content and execution of all contracts between the Customer and Melli Mello.

3. These general terms and conditions apply with the explicit rejection of the general terms and conditions of the Customer and/or any other third party.

4. Invalidity or unenforceability of any provision of the Contract and/or the General Terms and Conditions does not affect the validity of the remaining provisions. If any provision of the Agreement and/or the General Terms and Conditions proves to be invalid or unenforceable, the Parties agree that it will be replaced by a legally valid and enforceable provision that has the same or the most equivalent legal and/or economic effect.

5. Melli Mello may change the terms and conditions of the General Terms and Conditions from time to time without the consent of the Customer.


Article 3. Offers

1. Offers are made on the basis of information and specifications provided by the Customer and are based on the Services and/or delivery of Products within normal time periods and under normal circumstances.

2. The Customer cannot derive any rights from any errors in an offer.

3. The offers and quotations made by Melli Mello are without obligation and do not constitute a binding contract between Melli Mello and the recipient of the offer. Furthermore, the mentioned offer is only valid during thirty (30) days from the date mentioned on it, unless otherwise stated.

4. The formation of a Contract is effected by written acceptance of the offer by the Customer, with the proviso that Melli Mello may revoke the offer within three (3) days of receiving the acceptance, in which case no contract shall be deemed to have been formed.

5. If the Customer places a Project and/or Product order which is binding on the Customer, the Agreement is concluded at the time of acceptance of the order by Melli Mello, without prejudice to the right of Melli Mello to revoke the acceptance, in which case no agreement shall be deemed to have been concluded.

Article 4. Performance

1. Melli Mello undertakes to perform the Services to the best of its knowledge, ability and expertise, taking into account the purpose of the Project as specified by the Customer.

2. Unless expressly stated otherwise, the agreed delivery time in the offer is an estimate.

3. Melli Mello shall give priority to the performance of the Services if necessary or as identified in the quotation, and shall use commercially reasonable efforts to perform the Services within the time(s) identified in the quotation.

4. Melli Mello is permitted to engage and/or use external designers or other service providers as independent contractors in connection with the Services.

5. Customer agrees to review the Products within the time specified for such reviews and to either (i) approve the Products in writing or (ii) provide written comments and/or corrections sufficient to address Customer's concerns, objections or corrections to Melli Mello.

6. Melli Mello has the right to request written clarification of any concerns, objections or corrections. Such written notice is sufficient to bring any objections, corrections or changes clearly to light and Melli Mello will undertake to implement them in a timely manner and on a commercial basis. All objections, corrections, changes or modifications are subject to the General Terms and Conditions. In the absence of such notification from the Customer, the Delivery is deemed to have been accepted.


Article 5. Delivery of Products

1. The provisions of this article apply only if Melli Mello sells and delivers Products under the Agreement to the Customer.

2. Unless Melli Mello has confirmed otherwise in writing, delivery will be made FCA (Incoterms 2010).

3. All dates stated for delivery of the Products are approximate only and Melli Mello shall not be liable for any loss or damage suffered by the Customer as a result of delay in delivery or non-delivery of the Products, however caused.

4. If the Customer fails to take delivery of the Products on time - or if the Customer fails to give instructions for delivery - Melli Mello shall at its option either extend the time of delivery or shipment of the Products, storing the Products at the Customer's risk and expense until actual delivery, or cancel the Contract or any part of it, in either case without prejudice to any other right or remedy available to Melli Mello.

5. The Customer undertakes to comply strictly with Melli Mello's instructions regarding customs clearance of the Products and to provide Melli Mello, upon Melli Mello's request, with all relevant documents, including, but not limited to, export/import documents from EU member states and/or third countries necessary for entitlement to export refunds or other subsidies. The Customer is liable for and shall indemnify Melli Mello and its affiliates for all costs and damages suffered or incurred by Melli Mello and its affiliates as a result of the Customer's breach of this undertaking.

6. Immediately upon receipt of the Products, Customer shall thoroughly examine the Products to verify that the Products are in accordance with the Agreement and complete.

7. The Customer loses the right to invoke the non-conformity or loss of the Products if the Customer does not inform Melli Mello of this in writing without delay, but within seven (7) calendar days after receipt of the Products, stating the nature of the non-conformity or loss, or as soon as possible after the Customer has discovered or should have discovered the non-conformity or loss.

8. Ownership of the delivered Products shall not pass to the Customer until Melli Mello has received all payments invoiced to the Customer in connection with the delivery of the Products.

9. In case of overdue payment, Melli Mello is entitled to take back the delivered goods without further notice and without judicial intervention. The client authorizes Melli Mello in advance to gain access to all sites in and around the premises of the client.

10. Customer is responsible for compliance with all laws, administrative rules and/or regulations applicable to the import of the Products into the country of distribution and the subsequent processing, marketing, distribution, resale and/or use thereof.

Article 6. Responsibilities of the Customer

Customer acknowledges that it is responsible for the reasonable and timely performance of the following:

1. coordinating the decision making process with parties other than Melli Mello; providing, without further preparation, Customer's Content in a form suitable for reproduction or incorporation into the Deliverables, unless otherwise expressly provided for in the quotation; providing other accurate and complete information and materials upon Melli Mello's request and final proofreading and in the event that Customer has approved Deliverables but errors, such as, for example, non-restriction, typographical errors or spelling errors, remain in the final product, the cost of correcting such errors shall be borne by Customer.

2. The Customer acknowledges and agrees that Melli Mello's ability to meet all schedules is entirely dependent upon the Customer's prompt performance of its obligations to provide materials and written approvals and/or instructions within the scope of the quotation and that any delay in performance by the Customer or any change to the Services or the Products requested by the Customer may delay delivery of the Products. Any such delay caused by the Customer shall not constitute a breach of any term, condition or obligation of Melli Mello under the General Terms and Conditions or the Contract.

Article 7. Amendments

1. Unless otherwise specified in the quotation, and unless otherwise provided herein, the Customer shall pay additional charges for changes requested by the Customer which are outside the scope of the Services on a time and materials basis at Melli Mello's standard hourly rate. These costs are in addition to all other amounts payable under the quotation, notwithstanding any maximum budget, contract price or final price stated in the quotation. Melli Mello may extend or change any delivery schedule or deadlines in the Quotation and Deliverables if required by such changes.

2. If the Customer requests or orders changes that amount to a revision in or near fifty percent (50%) of the time required to produce the Deliverables, and or the value or scope of the Services, Melli Mello shall be entitled to submit a new and separate quotation to the Customer for written approval. Work will not commence on the revised Services until a fully signed revised Quotation and, if necessary, any additional advances have been received by Melli Mello.


Article 8. Fees and expenses

1. As consideration for the Services to be provided by Melli Mello, the Licence granted and/or the Products supplied, the Customer shall pay to Melli Mello fees in the amounts and according to the payment schedule specified in the offer, and all applicable sales, use or turnover taxes (VAT).

2. Costs incurred by Melli Mello in connection with the Contract shall be paid by the Customer as follows: incidental and out-of-pocket costs, including but not limited to the cost of postage, shipping, courier services, service bureaus, printing, blueprints, models, presentation materials, photocopies, computer costs and, where applicable, travel reimbursement per kilometre (including parking fees and tolls) or other travel costs incurred by Melli Mello (including transportation, meals and lodging), with the prior consent of the Customer.

3. The price of the project only includes the Melli Mello fee. All external costs, including, but not limited to, equipment rental, photographer's fees and expenses, photography and/or artwork licenses, prototype production costs, agency fees, licenses and online access or hosting costs, will be charged to the Customer, unless otherwise expressly stated in the quotation.

Article 9. Payment

1. All invoices are payable within fourteen (14) days of receipt, unless otherwise stated in a written agreement between Melli Mello and the Customer.

2. Unless otherwise agreed, payment in respect of the Agreement must be made to Melli Mello's bank account by bank transfer or other means of payment agreed between the Customer and Melli Mello.

3. The currency of all payments is in Euros unless another currency is stated in the Contract or on the invoice.

4. If payment is not made on time, the Customer is legally in default.

5. A monthly service charge of one percent (1%) shall be payable on all overdue balances. Payments shall first be credited for the cost of the overdue payments and then for the unpaid balance.

6.The customer is responsible for all collection costs or legal fees necessary for the payment of the amount due.

7. Melli Mello reserves the right to suspend delivery ("suspend") and any transfer of ownership of work in progress if accounts are not current or overdue. 8. Any grant of a licence to use or transfer of ownership of any Intellectual Property Rights under the Contract (including a Licence) is conditional on receipt of payment in full, including all outstanding additional charges, taxes, expenses and fees, costs or the cost of modifications.

8. To the extent permitted by applicable law, the Customer may not assert any rights to set off claims against its payment obligations under the Agreement. 9. The payment obligation under the Agreement is absolute and unconditional.


Article 10. Duration, default and termination

1. The Agreement shall commence upon the acceptance of the offer and shall remain in force until the Services and/or the delivery of Products have been completed and delivered.

2. If the Agreement relates to the granting of a Licence, it is entered into for an indefinite period, unless it follows from the content, nature or tenor of the Agreement that it has been entered into for a definite period. In that case, a notice period of three

(3) calendar months will apply to each of the parties. Notice of termination must be given in writing. Melli Mello is in no way obligated to any compensation for damages as a result of the termination of the Agreement.

3. If Melli Mello suspects that the Customer will not be able to fulfil its obligations under the Agreement, the Customer is obliged to provide sufficient security for the fulfilment of all its obligations in respect of the Agreement, at the first request of Melli Mello, in a manner to be specified by Melli Mello.

4. Without prejudice to any other right or remedy available to Melli Mello, Melli Mello is entitled to terminate the Agreement in writing with immediate effect in the following cases:

4a. If, after entering into the Agreement, Melli Mello has doubts about the Customer's necessary liquidity and the Customer cannot remove these doubts by providing adequate evidence or sufficient security;

4b. If a receiver, administrator, conservator or liquidator is appointed for all or a substantial part of the Customer's assets;

4c. If the Client is declared bankrupt or granted a suspension of payments, or if a request is made to that effect; or

4d. If the Client's business is wound up or terminated.

4e. If the Client is in default, due to the breach of any of its material responsibilities or obligations under the agreement, which has not been met within ten (10) days of receipt of a written notice ("notice of default") specifying the matter or matter in default.

5. In the event of termination, Melli Mello shall be compensated for the Services performed up to the date of termination in the amount of (a) any advance payment, (b) a pro rata share of the fees due, or (c) hourly rates for work performed by Melli Mello or Melli Mello's agents from the date of termination, whichever is greater; and the Customer shall pay all Charges, fees, out of pocket and any additional expenses incurred by and up to the date of termination.

6. On expiry or termination of the Agreement each party shall return or, at the request of the disclosing party, destroy the Agreement. Confidential information of the other party, and other than as provided herein, all rights and obligations of each party under the Agreement, excluding the Services, shall survive.


Article 11. Confidential Information

1. Each Party acknowledges that it may receive certain confidential or proprietary technical and business information and materials from the other Party in connection with the Agreement, including but not limited to Preliminary Works.
2. Each Party, its agents and employees shall treat and keep all Confidential Information in the strictest confidence, shall not disclose any Confidential Information to any third party and shall not use any Confidential Information except as necessary to fulfil its obligations under the Offer, except as required by a court or governmental authority.
3. Notwithstanding the foregoing, confidential information shall not include information which is public or is made public through no fault of the receiving party, or is otherwise duly received from a third party without an obligation of confidentiality.


Article 12. Accreditation/promotion

1. All displays or publications of the deliverables will bear an accreditation and/or copyright notice in the name of Melli Mello in the form, size and location as included by Melli Mello in the deliverables, or as otherwise indicated by Melli Mello.

2. Melli Mello reserves the right to reproduce, publish and display the Deliverables in Melli Mello's portfolios and websites, and in galleries, design magazines and other media or exhibitions for the purpose of recognizing creative excellence or professional advancement, and to be credited with the authorship of the Deliverables in connection with such use.

3. Melli Mello may describe its role in relation to the Project and, if applicable, the Services provided to the Customer on its website and in other promotional materials, and, if no express objection is made, include a link to the other party's website.

Article 13. Intellectual Property

1. The Customer's content, including all existing trademarks, shall remain the exclusive property of the Customer or his respective suppliers, and the Customer or his suppliers shall be the sole owner of all rights relating thereto. The Customer hereby grants to Melli Mello a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Customer Content solely in connection with the performance of the Services by Melli Mello and the limited promotional use of the Products as authorized in the Agreement.

2. All third party materials are the exclusive property of their respective owners. Melli Mello shall inform the Customer of any Third Party Materials which may be required to perform the Services or which are otherwise incorporated into the Definitive Agreement. In such circumstances, Melli Mello shall inform Customer of any need to license, at Customer's expense, and unless otherwise determined by Customer, Customer shall obtain the license(s) necessary to permit Customer's use of the Third Party Materials in accordance with the use rights granted herein.

3. If Client fails to obtain or otherwise arrange for the necessary licenses or order the use of Third Party Materials, Client shall indemnify, save and hold Melli Mello harmless from and against all damages, liabilities, costs, losses or expenses arising from any claim, demand or action by a third party as a result of Client's failure to obtain copyrights, trademarks, publicity, privacy, libel or other releases or permissions in respect of materials included in the Final Artwork.

4. Melli Mello retains all (copy) rights in and to all Provisional Works. Client must return all Preliminary Works to Melli Mello within thirty (30) days of completion of the Services and all rights in and to all Preliminary Works shall remain the exclusive property of Melli Mello.

5. Melli Mello retains all (copy) rights and title to all original works containing Final Art, including all rights to display or sell such works. Client shall return all original artwork to Melli Mello within thirty (30) days of completion of the Services.

6. Melli Mello retains all right, title and interest in and to all of its trademarks.

7. Unless otherwise agreed, Melli Mello grants to the Customer the exclusive, perpetual and worldwide right and license to use, reproduce and display the Work solely in connection with the Project as defined in the tender and in accordance with the various terms and conditions of the Agreement and the General Terms and Conditions. The rights granted to the Client are solely intended for the use of the Final Art in its original form. The Client is not permitted to cut, deform, manipulate, reconfigure, imitate, animate, create derivative works from, remove parts of, or in any other way modify the End Art.

8. All goodwill in connection with the use of the Final Act and/or the Trademarks shall belong to Melli Mello.

9. If the Client becomes aware of a third party infringing or attempting to infringe any rights in and to the Trade Marks or other intellectual property rights of Melli Mello, the Client shall notify Melli Mello immediately upon becoming aware of the alleged infringement of the Trade Marks or other intellectual property rights and shall provide Melli Mello with all aid and assistance reasonably necessary to decide whether to prosecute the alleged infringer in connection with the alleged infringement and to commence any such proceedings that Melli Mello decides to commence.

10. The Customer shall not institute any proceedings against an alleged infringer except at the direction of Melli Mello. However, Melli Mello shall not be obliged to take action against any alleged infringement and shall not be liable in any way to the Client for any failure to do so.

11. The Customer shall notify Melli Mello of any claim or proceeding brought, threatened or commenced against the Customer by a third party, whether or not for damages, and of any court order, arising from the exploitation by the Customer of the rights granted by the Agreement, immediately after such claim or proceeding is brought, threatened or commenced, and the Customer shall permit Melli Mello to participate in its defence.


Article 14. Licence

1. The terms of this Article only apply, and take precedence, if Melli Mello grants the Customer a separate License for the use of the Trademarks in connection with the production, packaging, sale, marketing and distribution of the Customer's Products, as defined in the offer and in accordance with the various terms of the Agreement.

2. Melli Mello is entitled to limit the use of the Trademarks to a geographical area.

3. The Customer shall pay Melli Mello the royalty rate specified in the offer. Melli Mello has the right to terminate the Agreement immediately in writing if Licensee has not paid the royalty within thirty (30) days from the due date.

4. Within 30 days after March 31, June 30, September 30 and December 31 of each calendar year during the term of the Agreement, Customer shall submit to Melli Mello a sales report. Each report shall state, with respect to the preceding quarterly period, the total gross amount invoiced by the Customer for all sales of the Customer's Products under the Marks.

5. To permit verification of the report, Customer shall keep complete and accurate books and records relating to the purchase, manufacture, sale and other disposition of all Customer Products and shall keep such books and records available for a period of five (5) years after the purchase, manufacture, sale or other disposition of such Customer Products.

6. Melli Mello is entitled to inspect the Customer's books and records from time to time for the purpose of verification of the report.

7. Such inspection will be carried out by a certified public accountant appointed by Melli Mello. The Client must be willing to cooperate and provide all assistance in connection with such inspection.

8. Melli Mello's right of inspection shall survive termination or expiry of the Licence Agreement for a period of five (5) years after termination or expiry.

9. Unless otherwise agreed, in case of an (early) termination of the Licence Agreement, a reduction period of six (6) months will apply. During the phasing-out period, Customer is permitted to sell its stock of customer products. Customer is not permitted to produce new Customer Products during this period. For the avoidance of doubt, the provisions relating to Customer's royalty obligations and other post-contractual obligations relating to audit and financial control in accordance with the Licence Agreement will remain in force during the phase-out period.


Article 15. Limitation of Liability

1. Melli Mello's total liability arising out of or in connection with the Agreement is limited to a maximum of the amounts paid by the Customer to Melli Mello in connection with the Delivery Products, the License, the Services and the Work Product.

2. Melli Mello is not liable for any damage suffered by the Customer as a result of the use of the Deliverables, Licence, Services, Final Deliverables and Work Product or as a result of negative publicity.

3. In all circumstances, Melli Mello's maximum liability to the Customer for damages from any cause and the Customer's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, is limited to the maximum total amount that Melli Mello's liability insurer will pay in the relevant case, even if this would amount to a breach of Melli Mello's obligations under the Agreement. The Customer shall indemnify and hold Melli Mello harmless from and against any such claims in excess of this amount.

4. In no event shall Melli Mello be liable for loss of data or content, loss of profits, business interruption or for any indirect, incidental, special, consequential, reputational, exemplary or punitive damages arising out of or in connection with the Agreement, even if Melli Mello has been advised of the possibility of such damages, and notwithstanding the failure of the essential purpose of a limited remedy.

5. Any claim against employees or persons engaged by Melli Mello is excluded. Employees and persons employed by Melli Mello may at any time invoke this third party beneficiary clause.

6. The Customer must submit any claims based on this clause to Melli Mello within one (1) year after they arise, otherwise all rights to compensation will expire ("Statute of Limitations").


Article 16. Miscellaneous

1. No waiver by Melli Mello of any breach by the Customer, or Melli Mello's failure to insist on the Customer's compliance, shall be deemed a waiver of any subsequent breach of the same or any other provision.

2. Melli Mello shall not be deemed to be in breach of the Contract if Melli Mello is unable to complete the Services or any part thereof as a result of fire, earthquake, industrial dispute, acts of God or public enemy, death, illness or incapacity of Melli Mello or any local, state, federal, national or international law, governmental order or regulation or any other event beyond the control of Melli Mello. Upon the occurrence of any such force majeure event, Melli Mello shall notify the Client of its inability to perform the Services or of any delay in their completion and Melli Mello shall propose revisions to the schedule for the completion of the Services.

3. The parties expressly acknowledge that the Agreement does not create an exclusive relationship between the parties. Melli Mello shall be entitled to offer and provide design services to others, solicit other customers and otherwise advertise the services offered by Melli Mello.

4. Nothing in the relationship between Melli Mello and the Customer shall create any agency, partnership or joint venture between the parties and in particular the Customer shall not be entitled to make any representation or warranty on behalf of Melli Mello.

5. Neither party may transfer, assign or encumber its rights or obligations under this contract or allow them to be transferred by operation of law or otherwise without the prior written consent of the other party.

6. The Agreement may not be assigned, nor may the Customer sublicense the Agreement, without the prior written consent of Melli Mello, both with respect to the assignment or grant of such sublicense and with respect to the detailed terms and conditions thereof.

7. Melli Mello shall be entitled to assign all of its rights and obligations under the Agreement to a third party and, to the extent necessary, the Client hereby expressly consents to such assignment. The Client shall furthermore provide all reasonable assistance necessary to effectuate the transfer of rights and/or obligations.

8. In the event of any conflict between a translation of the Agreement and/or the General Terms and Conditions, the English text shall be binding.

9. In the event of contradiction between a Dutch legal term used in these General Terms and Conditions and the English translation, the Dutch legal term will prevail.


Article 17. Applicable law

1. All Agreements, the General Terms and Conditions and other legally binding transactions between the Customer and Melli Mello are governed by Dutch law.

2. The United Nations Convention on Contracts for the International Sale of Goods (CISG) also applies to the delivery of Products under the Agreement.

3. In the event of a dispute arising from this Agreement, the parties agree to attempt to resolve the dispute through negotiation between the parties.

4. If they are unable to resolve the dispute, the dispute will be settled by the District Court in the Netherlands, Midden-Nederland, Utrecht.

5. Contrary to the above, Melli Mello is at all times entitled to commence legal proceedings against the Customer in the country where the Customer's registered office is located.

6. In case of conflicting provisions between these General Terms and Conditions and the License Agreement between the Customer and Melli Mello, the provision of the License Agreement will prevail.