1 Agreement, quotation and confirmation
1.1 These general terms and conditions (hereinafter: General Terms and Conditions) apply to all offers and the conclusion, content and fulfilment of all agreements concluded between the client (hereinafter: the Client) and the contractor (hereinafter: the Designer). Deviations from these General Terms and Conditions may only be agreed in writing between the Client and the Designer.
1.2 Quotations are without obligation and are valid for 2 (two) months. Prices quoted may be subject to change owing to unforeseen changes in the work. Prices are exclusive of VAT. The rates and offers included in the quotation or other communications do not automatically apply to future assignments. The Client guarantees the correctness and completeness of the information provided by or on behalf of the Client to the Designer on which the Designer has based the offer.
1.3 Assignments are confirmed by the Client in writing. If the Client fails to do this, but nevertheless agrees that the Designer begin to execute the order, the content of the quotation shall be deemed to have been agreed and these General Terms and Conditions shall apply. Further verbal agreements and stipulations are binding on the Designer only after they have been confirmed in writing by the Designer.
2 The execution of the agreement
2.1 The Designer shall endeavour to carry out the assignment carefully and independently, to represent the interests of the Client in good faith and to strive for a result that is useful to the Client, as can and may be expected from a reasonable and professional Designer. To the extent necessary, the Designer shall keep the Client informed of the progress of the work.
2.2 The Client shall do everything reasonably necessary or desirable to enable a timely and correct delivery by the Designer, such as the timely provision of complete, sound and clear data and materials, which the Designer has indicated or which the Client understands or should reasonably be expected to understand are necessary for the agreement’s execution.
2.3 The Client shall do all that is reasonably necessary and/or desirable to enable timely and correct delivery by the Designer, such as the timely provision of complete, sound and clear data and/or materials.
2.4 Unless otherwise agreed, the Designer’s assignment does not include:
a. conducting tests, applying for permits or assessing whether the Client’s instructions meet legal or quality standards;
b. investigating the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties;
c. investigating for the Client the possibility of the potential forms of protection referred to in sub b.
2.5 Before execution, production, reproduction 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 (end) result from what had been agreed are no reason for rejection, discount, compensation or dissolution of the agreement, if these deviations, all circumstances taken into account, are of minor significance.
2.7 Complaints should be communicated to the Designer in writing as soon as possible, but in any case, within 10 (ten) working days after completion of the assignment, failing which the Client shall be deemed to have fully accepted the result of the assignment.
Third-party involvement
3.1 Unless otherwise agreed, assignments may be given to third parties in the context of the execution of the assignment, by or on behalf of the Client. At the Client’s request, the Designer may act as an authorised representative at the expense and risk of the Client. The parties may agree on a fee for such services.
3.2 If the Designer draws up a budget for third-party costs at the Client’s request, this budget shall be deemed indicative. If desired, the Designer may request quotations on the Client’s behalf.
3.3 If, for the execution of the assignment, the Designer purchases goods or services from third parties at his/her own expense and risk with the express agreement of the Client, and these goods or services are subsequently (re)delivered or resold to the Client, the provisions of the General Terms and Conditions and/or separate agreements with the supplier shall also apply to the Client. The Designer shall inform the Client of the General Terms and Conditions and/or separate agreements with the supplier.
3.4 If the Designer issues orders or instructions to production companies or other third parties, whether or not on the Client’s behalf, the Client shall confirm the approval referred to in Article 2.5 of these General Terms and Conditions in writing upon the Designer’s request.
3.5 The Client shall not engage third parties without consultation with the Designer when this may affect the execution of the assignment as agreed with the Designer. In such cases, the parties shall discuss which third parties should be engaged and which activities should be entrusted 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 himself. If desired, the Designer shall provide assistance in this regard.
4 Intellectual property rights and property rights
4.1 All intellectual property rights to the results arising from the assignment belong to the Designer. Insofar as such a right may only be extended by means of a filing or registration, only the Designer is authorised to do so, unless agreed otherwise. ‘Intellectual property rights’ are expressly understood to mean: copyrights, database rights, related rights, trademark rights, design rights, patents, domain name rights, know-how, commercial knowledge, trade secrets and all similar rights, anywhere in the world, whether or not susceptible to registration and including applications for registration.
4.2 The Parties may agree to transfer the rights referred to in the first paragraph in whole or in part to the Client. This transfer and any conditions under which the transfer takes place must always be recorded in writing. Until the time of transfer and payment of the fee agreed for this purpose, a right of use shall be provided as stipulated 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 on, at or in publicity about the result of the assignment – in the usual way for that result – or removed from that publicity. The Client is not permitted to publish or reproduce the result without the prior consent of the Designer without mentioning the name of the Designer.
4.4 Unless otherwise agreed, the (originals of) the results (such as designs, design sketches, concepts, opinions, reports, budgets, estimates, specifications, working drawings, illustrations, photos, prototypes, models, moulds, [partial] products, films, presentations, source codes, source files and other materials or [electronic] files and the like) created by the Designer in the context of the assignment remain the property of the Designer, regardless of whether they have been made available to the Client or to third parties. The parties may agree a further fee to be arranged for the transfer of the aforementioned results.
4.5 After completion of the assignment, the Client and the Designer have no obligation to retain the results achieved by the Designer (originals of the results) as mentioned in 4.4, unless otherwise agreed.
5 Use of the result
5.1 If the Client fully complies with his/her obligations arising from the agreement with the Designer, he/she acquires the right of use (licence) of the result of the assignment in accordance with its purpose. If no agreements have been made about the purpose, the right of use is limited to the use for which the assignment was (apparently) granted. The right to use is exclusive, unless the nature of the agreement dictates otherwise or is agreed otherwise.
5.2 If the result also relates to works on which rights of third parties are based, the parties should make additional agreements on how the use of these works should be governed.
5.3 Without written permission, the Client does not have the right to adjust the result of the assignment, to use or reuse, or execute it more widely, or in any other way than has been agreed, or to let that be done by third parties. The Designer may attach conditions to this consent, including the payment of an additional fee.
5.4 In the event of non-agreed broader or other use, including modification, mutilation or damage to 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, or at least compensation that is proportional to the infringement committed, without otherwise losing any other rights.
5.5 Without the prior consent of the Designer, the Client is not (or no longer) permitted to use the result of the assignment or develop it (or have it developed) further and any right of use (licence) granted to the Client in the context of the assignment shall lapse, unless the consequences thereof are contrary to reasonableness and fairness:
a. from the moment that the Client does not or does not fully fulfil his/her (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 the 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 The Designer, taking into account the Client’s interests, has the freedom to use the results for his/her own publicity, acquisition of orders, promotion, including use on the Internet, websites and social media, in competitions and exhibitions, etc., and to get them on loan when it comes to physical results.
6. Fees and expenses
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 or any other fee agreed between the parties.
6.2 In addition to the agreed fee, the expenses incurred by the Designer for the execution of the assignment, such as office, travel and accommodation expenses, expenses for prints, copies, (print) tests, prototypes, and expenses of third parties for advice, production and guidance, etc. are also eligible for reimbursement. These expenses will be specified as much as possible in advance, except when a surcharge percentage is agreed.
6.3 If the Designer is forced to perform more or other work due to the late or non-delivery of complete, sound and clear data/materials, due to a changed or incorrect commission or briefing, or due to external circumstances, this work will be remunerated separately on the basis of the Designer’s customary fee rates. The Designer shall inform the Client in advance, unless this is not possible due to circumstances or the nature of the work does not permit postponement.
7 Payment and deferral
7.1 The Designer shall ensure timely invoicing. In consultation with the Client, the Designer may charge agreed fees and expenses as an advance, interim or periodic fee.
7.2 All payments must be made without deduction, set-off or deferral, within 30 days of the invoice date, unless otherwise agreed in writing or the invoice states otherwise.
7.3 All goods delivered to the Client remain the property of the Designer until all amounts owed by the Client to the Designer pursuant to the agreement concluded between the parties have been paid to the Designer in full.
7.4 If the Client defaults on the full or partial payment of the amounts due, the Client shall be liable for statutory interest and extrajudicial collection costs, amounting to at least 10% of the invoice amount with a minimum of €150 excl. VAT.
7.5 The Designer may suspend the execution of the assignment after the payment period has expired and the Client has failed to pay within 14 days of receiving notification to do so, or if the Designer understands by means of a notification by or action of the Client that payment will not be made.
8 Attributable shortcoming, termination and dissolution of the agreement
8.1 In the event of an attributable shortcoming, the parties will first give each other written notice of default and enable the other party, subject to a reasonable period of time, to still fulfil his/her obligations or to repair any errors or to limit or remedy damage. The notice of default must contain as detailed a description as possible of the shortcoming.
8.2 If the Client terminates the agreement (in the interim) without there being an attributable shortcoming by the Designer, or if the Designer dissolves the agreement due to an attributable shortcoming in the fulfilment of the agreement by the Client, the Client shall be liable for damages in addition to the fee and expenses incurred with regard to the work performed up to that point. Any conduct by the Client which becomes grounds for the Designer to no longer be reasonably expected to complete the assignment shall also be regarded as an attributable shortcoming in this context.
8.3 The compensation referred to in the previous paragraph includes at least the expenses arising from the obligations entered into by the Designer in his/her own name for the fulfilment of the assignment with third parties, as well as 30 (thirty) % of the remaining part of the fee for which the Client would be liable upon full fulfilment of the assignment.
8.4 Both the Designer and the Client have the right to immediately dissolve the agreement in whole or in part with all amounts owed immediately due and payable, if a bankruptcy declaration, (provisional) suspension, or debt restructuring is submitted to the other party, or if the other party dies.
8.5 If the work of the Designer consists of the repetition of similar work, the contract shall be deemed permanent, 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 3 (three) months, during which period the Client shall continue to purchase the usual amount of work from the Designer, or shall compensate the Designer financially for the missed turnover and costs incurred.
9 Guarantees and indemnifications
9.1 The Designer guarantees that the design supplied to the Client was made by him/her or on his/her behalf and, if the design is protected by copyright, that he/she is the maker within the meaning of the Dutch Copyright Act (Auteurswet) and the copyright holder of the work. The Designer guarantees that the result of the assignment at the time of its completion, insofar as he/she knows or should reasonably know, does not infringe upon the rights of third parties or is not otherwise unlawful.
9.2 The Client shall indemnify the Designer, or third parties engaged on the assignment by the Designer, against all claims of third parties arising from the applications or the use of the results of the assignment. This does not affect the Designer’s liability to the Client for non-compliance with the guarantees referred to in the preceding paragraph and other liability as referred to in Article 10 of these General Terms and Conditions.
9.3 The Client shall indemnify the Designer for any claim or action relating to intellectual property rights on materials and/or data supplied by the Client and used for the execution of the assignment.
10 Liability
10.1 The Designer is only liable for direct damage suffered by the Client that is the direct and exclusive result of a shortcoming attributable to the Designer in the execution of the assignment. Liability of the Designer for consequential damage and indirect damage, including but not limited to lost profits, lost savings, image damage, damaged or perished data or materials, or damage due to business stagnation, is excluded.
10.2 Except in the case of intent or deliberate recklessness on the part of the Designer, the total liability of the Designer is limited to the Designer’s fee for the assignment, or at least that part of the assignment to which the liability relates. This amount shall not exceed €75,000 and is in any case and at all times limited to a maximum of the amount paid by the insurer to the Designer when appropriate. The amount for which the Designer is liable shall be reduced by any sums insured by the Client.
10.3 Liability shall lapse two years from the moment that the assignment ends through completion, termination or dissolution.
11 Privacy
When the Designer needs to process personal data of (customers of) the Client in the context of the services to be provided, the Designer is regarded as a ‘processor’ and the Client as a ‘controller’ within the meaning of the General Data Protection Regulation (GDPR) and a processor agreement is concluded.
12 Force majeure
12.1 If one of the parties fails to fulfil its obligations, through no fault of his/her own (force majeure), that party is not liable and the fulfilment of that obligation is suspended for the duration of the force majeure.
12.2 Force majeure includes (but is not limited to) weather conditions, fire, strike, illness, pandemic, epidemic, (war) violence, hacks, cyberattacks or other technical failures and circumstances resulting from the above, such as government interventions including quarantine measures that reasonably prevent one of the parties from complying and that lead to delays, as well as delays or shortcomings from suppliers and/or other third parties engaged in the implementation of the agreement.
12.3 If one of the parties invokes force majeure, he/she must inform the other party in writing as soon as possible, with reference to the necessary supporting documents/reasons.
12.4 If the state of force majeure has lasted 60 (sixty) days, both parties have the right to terminate the agreement in whole or in part, insofar as the state of force majeure justifies this.
12.5 In the event of force majeure, the Designer is entitled to that part of the fee for the work performed by him/her and to reimbursement of the expenses already incurred by the Designer or that are unavoidable, for example, in connection with orders already made and orders to third parties that can no longer be cancelled without liability for damages.
13 Other provisions
13.1 If the Client wishes to give the same assignment to others than the Designer at the same time or has already given the assignment to another person, he/she shall inform the Designer of this beforehand.
13.2 The Client is not permitted to transfer any rights from an agreement concluded with the Designer to third parties, other than when transferring his/her entire company or with the prior written consent of the Designer.
13.3The parties are obliged to maintain the confidentiality of 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, where it can reasonably be understood that disclosure or communication to third parties could cause damage to the Designer or the Client. The parties will bind their employees or third parties involved in the execution of the assignment to the same duty of confidentiality with regard to these facts and circumstances originating from the other party.
13.4 If any provision of these General Terms and Conditions is invalid or unenforceable, the remaining provisions of these General Terms and Conditions will remain in full force. In that case, the parties shall consult each other with the aim of agreeing new provisions to replace the provisions deemed null and void, taking into account as much as possible the purpose and scope of the provisions deemed null and void.
13.5 The headings in these General Terms and Conditions have been included for easy reference only and are no part of these Terms and Conditions.
13.6 These General Terms and Conditions may be amended at any time. The Designer shall inform the Client about this.
13.7 The agreement between the Designer and the Client is governed by Dutch law. The parties shall initially try to resolve any dispute in mutual consultation. Unless the parties have expressly agreed to arbitration in writing, the court with jurisdiction according to the law, or the court in the district where the Designer is established, shall be chosen
March 2021 Filed at the Chamber of Commerce by the BNO.
Disclaimer: this translation is provided for informational purposes only. The wording of the original Dutch Algemene Voorwaarden is binding in all respects.