General terms and conditions
1. Agreement, offer and confirmation
1.1. These general terms and conditions shall apply, to the exclusion of any purchase or other terms and conditions of the client, to the conclusion, content and performance of all agreements concluded between the client and the contractor.
1.2. Quotations are non-binding and are valid for 2 months. Quotations may undergo changes due to an unforeseen change in the work. Prices are exclusive of VAT and other government levies. Mentioned rates and offers do not automatically apply to future assignments.
1.3. Assignments must be confirmed by the client in writing. If the client fails to do so but nevertheless consents to the contractor commencing work on the order, the contents of the offer will be deemed to have been agreed. Further oral agreements and stipulations shall not bind the contractor until they have been confirmed in writing by the contractor.
1.4. If the client wishes to award the same order to others than this contractor at the same time or has already awarded the order to another, he must inform the contractor, stating the names of these others.
2. Performance of the agreement
2.0. The contractor shall endeavour to carry out the assignment carefully and independently, to represent the client's interests to the best of his knowledge and to strive for a result that is useful to the client. To the extent necessary, the contractor shall keep the client informed of the progress of the work.
2.1. The client shall be obliged to do everything that is reasonably necessary or desirable to enable the contractor to deliver on time and correctly, in particular by supplying (or having supplied) complete, sound and clear data or materials on time.
2.3. Any deadline specified by the contractor for completion of the design will be indicative only, unless the nature or content of the agreement indicates otherwise. If the stated period is exceeded, the client must give the contractor written notice of default.
2.4. Unless otherwise agreed, carrying out tests, applying for licences and assessing whether instructions from the client comply with legal or quality standards are not part of the contractor's remit.
2.5. Before proceeding with production, reproduction or publication, the parties must give each other the opportunity to check and approve the latest models, prototypes or proofs of the design. If the contractor shall give orders or instructions to production companies or other third parties, whether or not in the client's name, the client shall, at the contractor's request, confirm his aforementioned approval in writing.
2.6. Complaints should be communicated in writing to the contractor as soon as possible, but in any case within ten working days of completion of the assignment, failing which the client shall be deemed to have fully accepted the result of the assignment.
3. Engaging third parties
3.1. Unless otherwise agreed, instructions to third parties, in the context of the realisation of the design, will be given by or on behalf of the client. At the client's request the contractor may act as agent at the client's risk and expense. The parties may agree on a fee for such services.
3.2. If the contractor prepares an estimate for third-party costs at the client's request, such estimate shall be indicative only. If desired, the contractor may request quotations on behalf of the client.
3.3 If, in the performance of the order, the contractor procures goods or services from third parties at its own expense and risk by express agreement, after which these goods or services are passed on to the employer, the provisions of the general terms and conditions of the supplier with regard to the quality, quantity, capacity and delivery of these goods or services shall also apply against the employer.
4. Intellectual property and property rights
4.1 Unless otherwise agreed, all intellectual property rights arising from the order - including patent, design and copyright rights - shall accrue to the contractor. Insofar as such rights can be acquired only by filing or registration, the contractor shall have the sole and exclusive power to do so.
4.2 Unless otherwise agreed, the assignment does 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 investigation into the possibility of such forms of protection for the client.
4.3 Unless the work does not lend itself to it, the contractor shall at all times be entitled to mention or remove his/her name on or near the work, or to have it mentioned, and the client shall not be permitted to publish or reproduce the work without mentioning the contractor's name without prior permission.
4.4 Unless otherwise agreed, all work drawings, illustrations, prototypes, scale models, templates, designs, design sketches, films and other materials or (electronic) files made by the contractor in the course of executing the work commissioned will remain the contractor's property, irrespective of whether they were made available to the client or to third parties.
4.5 After completion of the order, neither the client nor the contractor shall have any duty of retention towards each other in respect of the materials and data used.
5. Use licence
5.1 Once the client has fulfilled all his obligations under the agreement with the contractor, he will acquire an exclusive licence to use the design solely for purposes of publication and reproduction as agreed when the work was commissioned. If no such purposes have been agreed, the licence will be limited to that manner of use of the design on which firm intentions existed on the date the work was commissioned. Such intentions must have been demonstrably known to the contractor prior to the conclusion of the agreement.
5.2 Without the contractor's written approval, the client will not be entitled to any use of the design that is broader or different from the use agreed. In the event of broader or different use on which no agreement was reached, including any amendment, mutilation or infringement on the provisional or final design, the contractor will be entitled to compensation due to infringement of his/her rights of at least three times the agreed fee, or a fee that is reasonably and fairly proportional to the infringement committed, without prejudice to the contractor's right to claim reimbursement of the damage actually incurred.
5.3 The client shall not (any longer) be permitted to use the results made available and any licence granted to the client in the context of the assignment shall lapse:
a. from the moment the client fails to (fully) fulfil his (payment) obligations under the agreement or is otherwise in default, unless the client's default is of minor significance in the light of the assignment as a whole;
b. if the assignment, for whatever reason, is terminated early, unless the consequences are contrary to reasonableness and fairness.
5.4 With due regard to the client's interests, the contractor shall be free to use the design for his own publicity or promotion.
6. Fees and additional costs
6.1 In addition to the agreed fee, the costs incurred by the contractor in carrying out the assignment shall also be eligible for reimbursement.
6.2 If the Contractor is forced to provide more or
perform other work, such work shall be charged separately, based on the contractor's customary fee rates.
6.3 If the fee is in any way dependent on facts or circumstances, which must be evident from the Client's records, the Contractor will have the right, after a statement from the Client, to have the Client's records audited by an accountant of the Contractor's choice. If the result of the accountant's audit differs by more than 2% or €100 from the Client's statement and settlement, the Client shall bear the costs of this audit.
7. Payment
7.1 Payments must be made within 30 days of the invoice date. If no payment or full payment has been received by the contractor after the expiry of this period, the client will be in default and will owe interest equal to the statutory interest rate. 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 will be set at at least 10% of the invoice amount with a minimum of € 150,-excluding VAT.
7.2 The contractor is entitled to charge his fee monthly for work performed and costs incurred for the execution of the order.
7.3 The client shall make the payments due to the contractor without any discount or set-off, except for set-off against offsettable advance payments relating to the agreement which he has made to the contractor. The Client shall not be entitled to suspend payment of invoices for work already performed.
8. Termination and dissolution of the agreement
8.1 If the client terminates an agreement, he must pay, in addition to compensation, the fee and costs incurred in relation to the work carried out until then.
8.2 If the agreement is dissolved by the contractor on account of an attributable breach in the performance of the agreement by the client, the client must pay, in addition to damages, the contractor's fee and the costs incurred in relation to the work performed until that date. In this context, conduct by the client on the grounds of which the contractor can no longer reasonably be required to complete the assignment shall also be regarded as attributable failure.
8.3 The damages referred to in the previous two paragraphs of this article will include at least the costs arising from obligations entered into by the contractor in his own name with third parties for the performance of the order, as well as at least 30% of the remaining part of the fee that the client would owe if the order were fully completed.
8.4 Both the contractor and the client will have the right to immediately terminate the agreement in whole or in part in the event of bankruptcy or (provisional) suspension of payments of the other party. In the event of the client's bankruptcy, the contractor will have the right to terminate the right of use granted, unless the consequences are contrary to reasonableness and fairness.
8.5 In the event of dissolution by the client on account of breach in the performance of the contractor's obligations, the performance already delivered and the related payment obligation will not be subject to cancellation, unless the client proves that the contractor is in default in respect of that performance. Amounts that the contractor has invoiced before the dissolution in connection with what he has already duly performed or delivered in performance of the agreement will remain due in full with due observance of the provisions of the previous sentence and will become immediately payable at the time of dissolution.
8.6 Where the Contractor's work consists of the repeated performance of similar work, then, unless otherwise agreed in writing, the agreement in force for this purpose will be for an indefinite period. This agreement may only be terminated by written notice, subject to a reasonable notice period of at least three months.
9. Warranties and indemnities
9.1 The contractor guarantees that the work delivered was designed by him/her or on his/her behalf and that, if the design is subject to copyright, he/she is deemed to be the creator within the meaning of the Copyright Act and may dispose of the work as the copyright owner.
9.2 The client shall indemnify the contractor or persons engaged by the contractor in the performance of the order against all third-party claims arising from the applications or use of the result of the order.
9.3 The client shall indemnify the contractor against claims relating to intellectual property rights on materials or data provided by the client and used in the performance of the order.
10. Liability
10.1 The contractor shall not be 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 they have their origin or cause in acts of the client, such as failure to deliver complete, sound and clear data/materials on time or at all.
c. errors or shortcomings of third parties engaged by or on behalf of the client.
d. defects in suppliers' quotations or for exceeding suppliers' quotations.
e. errors or shortcomings in the design or the text/data, if the client has given his approval in accordance with the provisions of Article 2.5, or has been given the opportunity to carry out an inspection and has not availed himself of this opportunity.
f. errors or shortcomings in the design or the text/data, if the customer has omitted to create or have created a certain model, prototype or test and these errors would have been noticeable in such model, prototype or test.
10.2 The Contractor shall only be liable for direct damage attributable to him. Direct damage means 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 terms and conditions; Contractor's liability for all damage other than the aforementioned, such as indirect damage, including consequential damage, loss of profit, mutilated or lost data or materials, or damage due to business stagnation, is excluded.
b. any reasonable costs necessary to make the contractor's defective performance conform to the agreement;
c. reasonable costs incurred to prevent or limit damage, to the extent that the client demonstrates that these costs led to limitation of the direct damage referred to in these general terms and conditions.
10.3 Save in the event of intent or wilful recklessness on the part of the contractor or the contractor's management - therefore excepting employees - the contractor's liability for damage under an agreement or any wrongful act committed against the client will be limited to the invoice amount relating to the portion of the work performed, less the costs incurred by the contractor in engaging third parties, on the understanding that this amount will not exceed € 45.000,= and in any event at all times limited to a maximum of the amount paid by the insurer to the contractor in the relevant case.
10.4 Any liability shall expire by the lapse of one year from the time the order is completed.
10.5 The client is obliged, if reasonably possible, to retain copies of materials and data provided by him until the order has been fulfilled. 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.
11. Other provisions
11.1 The client is not allowed to transfer any right under an agreement concluded with the contractor to third parties, other than in the event of transfer of its entire business.
11.2 The parties are bound to treat as confidential facts and circumstances which come to the knowledge of the other party in the context of the assignment. Third parties involved in the performance of the assignment shall be bound to the same confidential treatment in respect of such facts and circumstances originating from the other party.
11.3 The headings in these general terms and conditions are for readability purposes only and do not form part of these terms and conditions.
11.4 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 has its registered office, or the court with jurisdiction under the law, at the contractor's discretion.