1. agreement, quotation and confirmation
1.1 These general terms and conditions (hereinafter: General Terms and Conditions) apply to all quotations and the formation, content and fulfillment of all agreements concluded between the client and the contractor (hereinafter: designer). Deviations from these General Terms and Conditions can only be agreed in writing between the client and the designer.
1.2 Quotations are without obligation and are valid for 2 months. Quotations may be subject to change due to an unforeseen change in the work. Prices are exclusive of VAT. Mentioned rates and offers do not automatically apply to future assignments. The client guarantees the correctness and completeness of the information provided by or on behalf of it to the designer on which the designer bases the quotation.
1.3 Orders are confirmed in writing by the client. If the client fails to do so, but nevertheless agrees that the designer will start carrying out the assignment, the content of the quotation will be deemed to have been agreed and these General Terms and Conditions will apply. Further verbal agreements and stipulations are only binding on the designer after they have been confirmed in writing by the designer.
2. The implementation of the agreement
2.1 The designer makes every effort 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 for the client, as can and may be expected from a designer acting reasonably and professionally. expected. Insofar as necessary, the designer will keep the client informed of the progress of the work.
2.2 The client does everything that is reasonably necessary or desirable to enable a timely and correct delivery by the designer, such as the timely delivery of complete, sound and clear data or materials, of which the designer indicates or of which the client understands or should reasonably understand that these are necessary for the performance of the agreement.
2.3 A term specified by the designer for the execution of the assignment is indicative, unless otherwise agreed in writing.
2.4 Unless otherwise agreed, the designer’s assignment does not include:
a. performing tests, applying for permits and assessing whether instructions from the client comply with legal or quality standards;
b. conducting research into the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties;
c. conducting research into the possibility of the in sub b. intended possible forms of protection for the client.
2.5 Before proceeding with execution, production, duplication or publication, the parties shall give each other the opportunity to check and approve the latest models, prototypes or tests of the result.
2.6 Deviations in the (final) result compared to what has been agreed are not grounds for rejection, discount, compensation or dissolution of the agreement, if these deviations, taking all circumstances into account, are reasonably of minor importance.
2.7 Complaints are communicated to the designer in writing as soon as possible, but in any case within ten working days after completion of the assignment, failing which the client is deemed to have fully accepted the result of the assignment.
3. Engage third parties
3.1 Unless otherwise agreed, orders are given to third parties in the context of the execution of the order by or on behalf of the client. At the request of the client, the designer can act as an authorized representative at the expense and risk of the client. The parties can agree on a further fee for this.
3.2 If the designer draws up a budget for the costs of third parties at the request of the client, this budget is indicative. If desired, the designer can request quotes on behalf of the client.
3.3 If in the execution of the assignment the designer purchases goods or services from third parties in accordance with an explicit agreement at his own expense and risk, after which these goods or services are passed on to the client, then the provisions of the general terms and conditions of and/or separate agreements apply. with the supplier with regard to the guarantee and liability also towards the client.
3.4 If the designer, whether or not in the name of the client, issues orders or instructions to production companies or other third parties, the client will confirm the approval referred to in Article 2.5 of these General Terms and Conditions in writing at the designer’s request.
3.5 The client will not engage third parties without consultation with the designer if this may affect the execution of the assignment as agreed with the designer. If the occasion arises, the parties will discuss which other contractors will be engaged and which activities will be assigned to them.
3.6 The designer is not liable for errors or defects in products or services of third parties engaged by or on behalf of the client, regardless of whether these have been introduced by the designer. The client must address these parties itself. The designer can provide assistance with this if desired.
4. Intellectual property and property rights
4.1 All intellectual property rights arising from the assignment – including patent right, trademark right, drawing or design right and copyright – to the results from the assignment belong to the designer. Insofar as such a right can only be obtained through a deposit or registration, the designer is exclusively authorized to do so, unless otherwise agreed.
4.2 The parties may agree that the rights referred to in the first paragraph will be transferred in whole or in part to the client. This transfer and any conditions under which the transfer takes place are always recorded in writing. Until the moment of transfer, a right of use is granted as regulated in article 5 of these General Terms and Conditions.
4.3 The designer has the right at all times to mention or have his/her name mentioned or removed on, with, or in publicity surrounding the result of the assignment, in the usual manner for that result. The client is not permitted to publish or reproduce the result without mentioning the name of the designer without the prior consent of the designer.
4.4 Unless otherwise agreed, the results (originals of the) created by the designer in the context of the assignment (such as designs, design sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photos, prototypes , models, moulds, prototypes, (part) products, films, (audio and video) presentations, source codes and other materials or (electronic) files, etc.) property of the designer, regardless of whether they have been made available to the client or to third parties .
4.5 After completion of the assignment, neither the client nor the designer have a retention obligation towards each other with regard to the materials and data used, unless otherwise agreed.
5. Use of the result
5.1 When the client fully complies with his obligations under the agreement with the designer, he acquires the right to use the result of the assignment in accordance with the agreed destination. If no agreements have been made about the destination, the right of use will be limited to that use for which the order has (apparently) been issued. The right of use is exclusive, unless the nature of the agreement dictates otherwise or otherwise agreed.
5.2 If the result also relates to works to which the rights of third parties rest, the parties will make additional agreements about how the use of these works will be arranged.
5.3 Without written permission, the Client is not entitled to adjust the result of the assignment, to (re)use or to perform it in a wider or other way than has been agreed, or to have this done by third parties. The designer can attach conditions to this permission, including the payment of a fair compensation.
5.4 In the event of wider or other use not agreed, including changes, mutilation or impairment of the provisional or final result, the designer is entitled to compensation for infringement of his/her rights of at least three times the agreed fee, at least a compensation that is in reasonableness and fairness proportionate to the infringement committed, without losing any other right.
5.5 The client is not (any longer) permitted to use the results made available and any right of use granted to the client in the context of the assignment will lapse, unless the consequences thereof are contrary to reasonableness and fairness:
a. from the moment that the client does not or does not fully comply with its (payment) obligations under the agreement or is otherwise in default;
b. if the assignment is terminated prematurely for reasons stated in Article 8.1 of these General Terms and Conditions;
c. in the event of bankruptcy of the client, unless the relevant rights have been transferred to the client in accordance with Article 4.2 of these General Terms and Conditions.
5.6 With due observance of the interests of the client, the designer has the freedom to use the results for his own publicity, acquisition of assignments, promotion, including competitions and exhibitions, etc. is going.
6. Honorary and costs
6.1 The designer is entitled to a fee for the execution of the assignment. This may consist of an hourly rate, a consultancy fee, a fixed amount, whether or not related to the project sum or any other fee to be agreed between the parties.
6.2 In addition to the agreed fee, the costs incurred by the designer for the execution of the assignment, such as office, travel and accommodation costs, costs for prints, copies, (printing) proofs, prototypes, and costs of third parties for advice, production and guidance, etc., are eligible for reimbursement. These costs are specified in advance as much as possible, unless a surcharge percentage is agreed.
6.3 If the designer is forced to perform more or different work due to late or non-delivery of complete, sound and clear data/materials, due to an amended or incorrect assignment or briefing, or due to external circumstances, these activities will be honored separately. , on the basis of the usual fees charged by the designer. The designer will inform the client about this in advance, unless this is not possible due to circumstances or the nature of the work does not allow for a postponement.
6.4 If the execution of the assignment is delayed or interrupted by circumstances that cannot be attributed to the designer, the client is obliged to reimburse any costs that this entails. The designer will try to limit the costs as much as possible.
7. payment and suspension
7.1 All payments must be made without deduction, settlement or suspension, within 2 weeks of the invoice date, unless otherwise agreed in writing or otherwise stated on the invoice.
7.2 All goods delivered to the client remain the property of the designer until all amounts owed by the client to the designer under the agreement concluded between the parties have been paid in full to the designer.
7.3 If the client is in default with the full or partial payment of the amounts owed, the client owes statutory interest and extrajudicial collection costs, which amount to at least 10% of the invoice amount with a minimum of € 150 excl. VAT.
7.4 The designer is responsible for timely invoicing. In consultation with the client, the designer may charge the agreed fee and costs as an advance, interim or periodic.
7.5 The designer may suspend the execution of the order after the payment term has expired and the client, after having been given a written reminder to pay within 14 days, fails to do so, or if the designer must understand through a statement or behavior of the client that payment will be left behind.
8. Termination and termination of the agreement
8.1 If the client terminates the agreement without culpable failure on the part of the designer, or if the designer dissolves the agreement due to an attributable shortcoming in the fulfillment of the agreement by the client, then the client, in addition to the fee and the costs with regard to the work performed up to that point, will owe compensation. Behavior on the part of the client on the basis of which the designer can no longer reasonably be expected to complete the assignment, are also regarded as an attributable shortcoming in this regard.
8.2 The compensation referred to in the previous paragraph includes at least the costs arising from the commitments entered into by the designer 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 will receive upon full fulfillment of the contract. the order would be due.
8.3 Both the designer and the client have the right to immediately dissolve the agreement in whole or in part, and all amounts owed become immediately due and payable when a petition for bankruptcy, (provisional) suspension of payments or debt restructuring is submitted with regard to the other party.
8.4 If the work of the designer consists of repeatedly performing similar work, then there is a continuing performance contract, 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, during which period the client continues to purchase the usual amount of work from the designer or will compensate financially.
9. warranties and disclaimer
9.1 The designer guarantees that the delivered goods have been designed by or on behalf of him/her and that, if the result is subject to copyright, he/she is regarded as the creator within the meaning of the Copyright Act and can dispose of the work as copyright holder. The Designer guarantees that the result of the assignment at the time of its realization, insofar as he/she knows or should reasonably know, does not infringe the rights of third parties or is otherwise unlawful.
9.2 When the client uses the results of the assignment, the client indemnifies the designer or third parties engaged by the designer for the assignment against all third-party claims arising from the applications or the use of the result of the assignment. This does not affect the designer’s liability towards the client for non-compliance with the guarantees as referred to in the previous paragraph and other liability as referred to in Article 10 of these General Terms and Conditions.
9.3 The client indemnifies the designer against claims with regard to intellectual property rights on all materials and/or data provided by the client, which are used in the execution of the assignment.
10. liability
10.1 In the event of an attributable shortcoming, the Designer must first be given written notice of default, with a reasonable term to fulfill his/her obligations, or to repair any errors or to limit or eliminate damage.
10.2 The designer is solely liable towards the client for direct damage attributable to the designer. The designer’s liability for indirect damage, including consequential damage, lost profit, lost savings, mutilated or lost data or materials, or damage due to business interruption, is excluded.
10.3 Except in the case of intent or willful recklessness on the part of the designer, the designer’s liability is limited to the designer’s fee for the assignment, at least that part of the assignment to which the liability relates. This amount does not exceed €75,000 and is in any case limited at all times to a maximum of the amount that the insurer pays to the designer in the appropriate case. The amount for which the designer is liable in the appropriate case is reduced by any sums insured by the client.
10.4 Any liability lapses two years from the moment the assignment is terminated by completion, cancellation or dissolution.
11. other provisions
11.1 If the client wishes to grant the same assignment to others than the designer at the same time or has already given the assignment to another party, he will inform the contractor, stating the names of these others.
11.2 The client is not permitted to transfer any right from an agreement concluded with the designer to third parties, other than in the case of transfer of his entire company or with the written permission of the designer.
11.3 The parties are obliged to maintain secrecy with regard to all confidential information, facts and circumstances that come to the knowledge of the other party in the context of the assignment, from each other or from another source, of which it can reasonably be understood that disclosure or communication to third parties could cause damage to the designer or the client. Third parties involved in the execution of the assignment will be bound by the same confidential treatment with regard to these facts and circumstances originating from the other party.
11.4 If any provision of these General Terms and Conditions is void or voided, the other provisions of these General Terms and Conditions will remain in full force and effect. In that case, the parties will consult with the aim of agreeing new provisions to replace the void or voided provisions, whereby the purpose and intent of the void or voided provisions will be taken into account as much as possible.
11.5 The headings in these General Terms and Conditions only serve to improve readability and do not form part of these General Terms and Conditions.
11.6 The agreement between the designer and the client is governed by Dutch law. In the first instance, the parties will try to resolve a dispute that has arisen in mutual consultation. Unless the parties have expressly agreed to arbitration in writing, the competent court according to the law, or the court in the district where the designer is established, will take cognizance of disputes between the designer and the client at the discretion of the designer.