Terms and conditions
1. Agreement, quotation and confirmation
1.1 These general terms and conditions apply to the conclusion, content and fulfilment of all agreements concluded between the client and the contractor, to the exclusion of any purchasing or other conditions of the client.
1.2 Quotations are without obligation and are valid for 2 months. Price quotations may be subject to change due to an unforeseen change in the work. Prices are exclusive of VAT and other government levies. The rates and offers stated do not automatically apply to future orders.
1.3 Orders must be confirmed in writing by the client. If the client fails to do so, but nevertheless agrees that the contractor will commence the execution of the order, the contents of the quotation will be deemed to have been agreed. Additional verbal agreements and stipulations only bind the contractor after they have been confirmed in writing by the contractor.
1.4 If the client wishes to simultaneously issue the same assignment to parties other than this contractor or has previously issued the assignment to another party, he must inform the contractor of this, stating the names of these other parties.
2. Execution of the agreement
2.1 The contractor will make every effort to execute the assignment carefully and independently, to promote the interests of the client to the best of his knowledge and to strive for a result that is useful to the client. To the extent necessary, the contractor will keep the client informed of the progress of the work.
2.2 The client is obliged to do everything that is reasonably necessary or desirable to enable timely and correct delivery by the contractor, in particular by providing complete, sound and clear data or materials in a timely manner.
2.3 A term specified by the contractor for completing the design is indicative, unless the nature or content of the agreement shows otherwise. In the event of exceeding the specified term, the client must give the contractor written notice of default.
2.4 Unless otherwise agreed, the performance of tests, the application for permits and the assessment of whether the client's instructions comply with statutory or quality standards are not part of the contractor's assignment.
2.5 Before production, reproduction or publication takes place, the parties must give each other the opportunity to check and approve the final models, prototypes or proofs of the design. If the contractor, whether or not in the name of the client, gives orders or instructions to production companies or other third parties, the client must confirm his above-mentioned approval in writing at the request of the contractor.
2.6 Complaints must be communicated to the contractor in writing as soon as possible, but in any case within ten working days after completion of the assignment, failing which the client will be deemed to have fully accepted the result of the assignment.
3. Involvement of third parties
3.1 Unless otherwise agreed, orders to third parties, in the context of the creation of the design, are issued by or on behalf of the client. At the request of the client, the contractor can act as an authorized representative, at the expense and risk of the client. The parties can agree on a fee to be agreed upon for this.
3.2 If the contractor draws up an estimate for third-party costs at the request of the client, this estimate will only be indicative. If desired, the contractor can request quotations on behalf of the client.
3.3 If, in the execution of the order, the contractor, in accordance with an express agreement, purchases goods or services from third parties at its own expense and risk, after which these goods or services are passed on to the client, the provisions of the general terms and conditions of the supplier with regard to the quality, quantity, nature and delivery of these goods or services will also apply to the client.
4. Intellectual property rights and property rights
4.1 Unless otherwise agreed, all intellectual property rights arising from the assignment – including patent rights, design rights and copyright – shall belong to the contractor. Insofar as such a right can only be obtained by means of a deposit or registration, only the contractor shall be authorised to do so.
4.2 Unless otherwise agreed, the assignment shall not include conducting research into the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties. The same applies to any research into the possibility of such forms of protection for the client.
4.3 Unless the work does not lend itself to this, the contractor shall at all times be entitled to (have) his/her name mentioned on or near the work or to have it removed, and the client shall not be permitted to publish or reproduce the work without mentioning the name of the contractor without prior permission.
4.4 Unless otherwise agreed, the working drawings, illustrations, prototypes, models, molds, designs, design sketches, films and other materials or (electronic) files created by the contractor in the context of the assignment shall remain the property of the contractor, regardless of whether they have been provided to the client or to third parties.
4.5 After completion of the assignment, neither the client nor the contractor shall have any obligation to retain the materials and data used.
5. Use and license
5.1 When the client fully complies with his obligations under the agreement with the contractor, he obtains an exclusive license to use the design insofar as this concerns the right of publication and reproduction in accordance with the purpose agreed upon in the assignment. If no agreements have been made about the purpose, the granting of the license will be limited to that use of the design for which there were firm intentions at the time the assignment was placed. These intentions must demonstrably have been made known to the contractor before the agreement was concluded.
5.2 Without the written permission of the contractor, the client is not entitled to use the design more widely or in a different manner than agreed. In the event of a broader or different use that has not been agreed upon, including any modification, mutilation or infringement of the preliminary or final design, the contractor shall be entitled to compensation for infringement of his/her rights of at least three times the agreed fee, or at least compensation that is reasonably and fairly proportionate to the infringement committed, without prejudice to the right of the contractor to claim compensation for the actual damage suffered.
5.3 The client is not (any longer) permitted to use the results made available and any license granted to the client in the context of the assignment shall lapse:
a. from the moment that the client does not (fully) comply with his (payment) obligations under the agreement or is otherwise in default, unless the client's failure to perform is of minor importance in light of the entire assignment;
b. if the assignment is terminated prematurely for whatever reason, unless the consequences thereof are contrary to reasonableness and fairness.
5.4 The contractor has the freedom to use the design for his own publicity or promotion, taking into account the interests of the client.
6. Payment
6.1 Payments must be made within 14 days of the invoice date. If the contractor has not received (full) payment after this period, the client is in default and owes interest equal to the statutory interest. All costs incurred by the contractor, such as legal costs and extrajudicial and judicial costs, including the costs of legal assistance, bailiffs and collection agencies, incurred in connection with late payments, shall be borne by the client. The extrajudicial costs are set at at least 10% of the invoice amount with a minimum of € 150,- excl. VAT.
6.2 The contractor has the right to charge his fee monthly for work performed and costs incurred for the purpose of executing the assignment.
6.3 The client makes the payments owed to the contractor without discount or settlement, except for settlement with deductible advances relating to the agreement, which he has provided to the contractor. The Client is not entitled to suspend payment of invoices for work already performed.
7. Termination and cancellation of the agreement
7.1 If the client terminates an agreement, he must pay, in addition to compensation, the fee and the costs incurred in relation to the work performed up to that point.
7.2 If the agreement is terminated by the contractor due to an attributable failure in the performance of the agreement by the client, the client must pay, in addition to compensation, the fee and the costs incurred in relation to the work performed up to that point. Conduct of the client on the basis of which the contractor can no longer reasonably be expected to complete the assignment shall in this context also be considered as attributable failure.
7.3 The compensation referred to in the previous two paragraphs of this article shall at least include the costs arising from the obligations entered into by the contractor in his own name with third parties for the fulfillment of the assignment, as well as at least 30% of the remaining part of the fee that the client would owe if the assignment had been fully completed.
7.4 Both the contractor and the client have the right to immediately terminate the agreement in whole or in part in the event of bankruptcy or (provisional) suspension of payment of the other party. In the event of bankruptcy of the client, the contractor has the right to terminate the granted right of use, unless the consequences thereof are contrary to reasonableness and fairness.
7.5 In the event of termination by the client due to attributable failure to comply with the obligations by the contractor, the services already provided and the associated payment obligation will not be subject to cancellation, unless the client proves that the contractor is in default with respect to those services. Amounts that the contractor has invoiced before the termination in connection with what he has already properly performed or delivered in execution of the agreement, remain due in full, subject to the provisions of the previous sentence, and become immediately due and payable at the time of termination.
7.6 If the contractor's work consists of repeatedly performing similar work, the agreement applicable to that work will apply for an indefinite period, unless otherwise agreed in writing. This agreement can only be terminated by written notice, with due observance of a reasonable notice period of at least three months.
8. Guarantees and indemnities
8.1 The contractor guarantees that the delivered work has been designed by or on behalf of him/her and that, if the design is subject to copyright, he/she is considered the creator within the meaning of the Copyright Act and can dispose of the work as the copyright holder.
8.2 The client indemnifies the contractor or persons engaged by the contractor for the assignment against all claims by third parties arising from the applications or use of the result of the assignment.
8.3 The client indemnifies the contractor against claims relating to intellectual property rights on materials or data provided by the client, which are used in the execution of the assignment.
9. Liability
9.1 The contractor is not liable for:
a. errors or shortcomings in the material provided by the client.
b. misunderstandings, errors or shortcomings with regard to the performance of the agreement if these are caused by actions of the client, such as the failure to provide complete, sound and clear data/materials on time or not at all.
c. errors or shortcomings of third parties engaged by or on behalf of the client.
d. defects in quotations from suppliers or for exceeding price quotations from suppliers.
e. errors or shortcomings in the design or the text/data, if the client has given his approval in accordance with the provisions of art. 2.5, or has been given the opportunity to carry out an inspection and has not made use of this.
f. errors or shortcomings in the design or text/data, if the client has failed to create or have a specific model, prototype or test executed, and these errors would have been noticeable in such a model, prototype or test.
9.2 The contractor is only liable for direct damage attributable to him. Direct damage is understood to mean only:
a. reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions;
b. any reasonable costs necessary to have the contractor's defective performance comply with the agreement;
c. reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to a limitation of the direct damage as referred to in these general conditions. The contractor's liability for all other damage than the aforementioned, such as indirect damage, including consequential damage, lost profit, mutilated or lost data or materials, or damage due to business stagnation, is excluded.
9.3 Except in the case of intent or deliberate recklessness on the part of the contractor or the management of the contractor - subordinates therefore excluded -, the liability of the contractor for damage under an agreement or of an unlawful act committed against the client is limited to the invoice amount relating to the part of the assignment that was carried out, reduced by the costs incurred by the contractor for engaging third parties, provided that this amount will not exceed € 45,000 and in any case at all times limited to a maximum of the amount that the insurer pays out to the contractor in the event in question.
9.4 Any liability shall lapse after one year from the moment the assignment is completed.
9.5 The client is obliged, if reasonably possible, to retain copies of materials and data provided by him until the assignment has been completed. If the client fails to do so, the contractor cannot be held liable for damage that would not have occurred if these copies had existed.
10. Other provisions
10.1 The client is not permitted to transfer any right under an agreement concluded with the contractor to third parties, other than in the event of transfer of its entire company.
10.2 The parties are obliged to treat confidentially facts and circumstances that come to the attention of the other party in the context of the assignment. Third parties involved in the execution of the assignment will be bound to the same confidential treatment with regard to these facts and circumstances originating from the other party.
10.3 The headings in these general terms and conditions are only intended to promote readability and do not form part of these terms and conditions.
10.4 The agreement between the contractor and the client is governed by Dutch law. The court to hear disputes between the contractor and the client is the competent court in the district where the contractor is established, or the competent court according to the law, at the contractor's discretion.