1 Agreement, offer and confirmation
1.1 These General Terms and Conditions (“General Terms and Conditions”) govern all offers andthe preparation, content and performance of all agreements concluded between the clientand the contractor (the “Designer”). Deviations from these General Terms and Conditionsmay be agreed on between the client and the Designer only in writing.1.2 All offers are without commitment and are valid for two months. Prices quoted may besubject to change due to unforeseen changes in the work. Prices are exclusive of VAT. Therates and offers quoted do not automatically apply to future commissions. The clientwarrants that the information provided to the Designer by it or on its behalf and on which theDesigner bases the offer is correct and complete.1.3 Commissions are confirmed in writing by the client. If the client fails to do so but consents tothe Designer commencing the work commissioned, the terms of the offer are deemed tohave been agreed on and these General Terms and Conditions apply. Any subsequent oralagreements and stipulations are not binding on the Designer until he has confirmed them inwriting.
2 Performance of the agreement
2.1 The Designer must make every effort to perform the work commissioned carefully andindependently, to promote the client’s interests to the best of his or her ability and to aim toachieve a result that is useful to the client, as can and may be expected of a reasonably andprofessionally acting designer. To the extent necessary the Designer must keep the clientinformed of the progress of the work.2.2 The client must do any and all things that are reasonably necessary or required to enable theDesigner to deliver punctually and properly, such as supplying (or causing the supply of)complete, sound and clear data or materials in a timely manner of which the Designer statesor of which the client understands or should reasonably understand that they are necessaryfor the performance of the agreement.2.3 Terms stated by the Designer for the performance of the work commissioned areapproximations only, unless otherwise agreed in writing.2.4 Unless otherwise agreed, the following do not form part of the work commissioned to theDesigner:a. performing tests, applying for permits and assessing whether the client’s instructionscomply with statutory or quality standards;b. investigating any existing rights, including patents, trademarks, drawing or design rightsor portrait rights of third parties; andc. investigating the possibility of the forms of protection referred to in (b) for the Client.2.5 Prior to performance, production, reproduction or publication, the parties must give eachother the opportunity to check and approve the final draft, prototypes or galley proofs of theresult.2.6 Differences between the (final) result and the agreements made cannot serve as grounds forrejection, discount, damages or dissolution of the agreement if those differences arereasonably of minor importance, taking all the circumstances into account.2.7 Any complaints must be filed with the Designer in writing at the earliest possible time but nolater than ten business days after completion of the work commissioned, failing which theclient is deemed to have accepted the result of the work commissioned in its entirety.
3 Engagement of third parties
3.1 Unless otherwise agreed, instructions to third parties in the context of the performance ofthe work commissioned are given by or on behalf of the client. At the client’s request theDesigner may act as an agent for the client’s account and risk. The parties may agree on afee for such agency.3.2 If the Designer provides an estimate of third-party costs at the client’s request, that estimateis an approximation only. If required, the Designer may apply for quotations at third partieson the client’s behalf.3.3 If the Designer procures goods or services from third parties in the performance of the workcommissioned, for the Designer’s own account and risk and on the basis of an expressagreement, whereby those goods or services are passed on to the client, these generalconditions of and/or any separate agreements made with that supplier with regard towarranties and liability also apply to the client.3.4 If the Designer gives commissions or instructions to production companies or other thirdparties in the client’s name or otherwise, the client will confirm in writing at the Designer’srequest the approval referred to in Article 2.5 of these General Terms and Conditions.3.5 The client may not engage any third parties without consultation with the Designer if thatmay influence the performance of the work commissioned as agreed on with the Designer.The Parties will consult, if necessary, as to which other contractors will be engaged andwhich work will be assigned to them.3.6 The Designer is not liable for any errors or defects of products or services of third parties engaged by or on behalf of the client, irrespective of whether they have been introduced bythe Designer. The client itself must hold those parties accountable. The Designer may assistin that regard if necessary.
4 Intellectual and other property rights
4.1 All intellectual property rights arising from the work commissioned – including patents,trademarks, drawing or design rights and copyrights – in respect of the results of the workcommissioned are vested in the Designer. Insofar as any of such rights can be acquired onlyby means of an application or registration, the Designer will have the sole and exclusivepower to effect that application or registration, unless otherwise agreed.4.2 The parties may agree that the rights referred to in paragraph 1 are transferred in whole or inpart to the client. Such transfer and the conditions, if any, on which the transfer takes placemust always be recorded in writing. Until the moment of transfer, a right of use is granted asregulated in Article 5 of these General Terms and Conditions.4.3 The Designer is entitled at any time to imprint his name on or in, or to remove it from, theresult of the work commissioned (or publicity related thereto) or to have his name imprintedon or in, or removed from, the result of the work commissioned, in a manner that iscustomary for that result. Without the Designer’s prior consent the client may not publish orreproduce the result without identifying the Designer by name.4.4 Unless otherwise agreed, the (original) results (such as designs, design sketches, drafts,advice, reports, budgets, estimates, specifications, design drawings, illustrations,photographs, prototypes, scale models, templates, prototypes, products and partialproducts, films audio and video or other presentations, source codes and other materials or(electronic) data files etc.) made by the Designer as part of the work commissioned remainthe Designer’s property, irrespective of whether they have been made available to the clientor to third parties.4.5 On completion of the work commissioned, neither the client nor the Designer will be underany custodian duty in respect of any of the materials and data used, unless otherwiseagreed.
5 Use of the result
5.1 Once the client has fulfilled all his obligations under the agreement with the Designer, heacquires the right to use the result of the work commissioned in accordance with the agreedpurpose. If no such specific purpose has been agreed on, the right of use is limited to thatuse of the design for which the commission was (manifestly) given. The right of use isexclusive, unless otherwise apparent from the nature of the agreement or otherwise agreed.5.2 If the result also relates to works that are subject to third-party rights, the parties will makeadditional agreements on how the use of those works will be regulated.5.3 Without the Designer’s prior written consent, the client is not entitled to change the result ofthe work commissioned, or to use or reuse it in a broader or different manner than agreed,or to allow third parties to do so. The Designer may make that consent subject to conditions,including payment of a reasonable fee.5.4 In the event of broader or different use on which no agreement was reached, including anymodification, mutilation or infringement on the provisional or final result, the Designer isentitled to compensation on the grounds of infringement of his/her rights of at least threetimes the agreed fee, or a fee that is reasonably proportional to the infringement committed,without losing any other rights.5.5 The client is not (or no longer) permitted to use the results made available, and any right ofuse granted to the client in the context of the work commissioned will lapse, unless theconsequences conflict with the rules of reasonableness and fairness:a. the moment that the client fails to perform or to fully perform his payment or otherobligations under the agreement, or is otherwise in default;b. if the work commissioned is terminated prematurely for the reasons referred to in Article8.1 of these General Terms and Conditions; orc. if the client is declared bankrupt, unless the rights in question have been transferred tothe client in accordance with Article 4.2 of These General Terms and Conditions.5.6 With due observance of the client’s interests, the Designer may use the results at hisdiscretion for his own publicity, to secure commissions, for promotional purposes, includingcompetitions and exhibitions, etc., and to obtain them on loan, if physical results areinvolved.
6 Fees and additional costs
6.1 The Designer is entitled to a fee for the performance of the work commissioned. That feemay consist of an hourly rate, a consultancy fee, a fixed amount, whether or not related tothe project sum, or any other fee agreed on between the parties.6.2 In addition to payment of the agreed fee, the Designer is entitled to reimbursement of anycosts incurred by him in the performance of the work commissioned, such as administrativeoverheads, travel and accommodation expenses, costs of prints, copies, (galley) proofs andprototypes, and costs of third parties related to advice, production, supervision, etc. Thosecosts must be itemised beforehand to the extent possible, unless a mark-up percentage isagreed on.6.3 If the Designer is required to perform more or other work due to late delivery or non-deliveryof complete, sound and clear information and/or materials, any change or error ininstructions or briefings, or any external circumstances, such additional work is chargedseparately on the basis of the Designer’s usual fees. The Designer will then inform the clientaccordingly beforehand, unless that is impossible due to circumstances or the nature of thework does not allow any delay.6.4 If the performance of the work commissioned is delayed or interrupted due to circumstancesbeyond the Designer’s control, the costs involved, if any, are payable by the client. TheDesigner must attempt to limit those costs to the extent possible.
7 Payment and suspension
7.1 All payments must be made without any deduction, set-off or suspension within 30 days ofthe invoice date, unless otherwise agreed in writing or stated in the invoice.7.2 All goods delivered to the client remain the Designer’s property until all the amounts that theclient owes the Designer under the agreement concluded between the parties have beenpaid to the Designer.7.3 If the client fails to pay all or part of the amounts due, it owes statutory interest and out-ofcourtcosts of collection, amounting to at least 10% of the invoice amount, subject to aminimum of € 150, excluding VAT.7.4 The Designer must arrange for timely invoicing. In consultation with the client the Designermay charge the agreed fee and costs as an advance, in the interim or periodically.7.5 The Designer may suspend the performance of the work commissioned after the term forpayment has expired and the client, after a written demand to make payment within 14 days,fails to make that payment, or if the Designer is forced to conclude on the grounds of astatement or act on the part of the client that payment will not be made.
8 Notice of termination and dissolution of the agreement
8.1 If the client gives notice of termination of the agreement, without any breach on the part ofthe Designer, or if the Designer dissolves the agreement on the grounds of breach by theclient in the performance of the agreement, the client is liable for damages in addition to theDesigner’s fee and the costs incurred in connection with the work performed until that time.In this context any conduct by the client on the grounds of which the Designer cannotreasonably be required to complete the work commissioned is also regarded as breach.8.2 The damages referred to in the preceding paragraph of this Article include at least the costsarising from obligations undertaken by the Designer in his own name with third parties forthe performance of the work commissioned, as well as at least 30% of the balance of the feethat the client would owe the Designer if the work commissioned were completed in full.8.3 Both the Designer and the client have the right to terminate the agreement in whole or inpart with immediate effect, and all amounts due are payable immediately, if a petition inbankruptcy or a petition for a suspension or provisional suspension of payment or forapplication of the debt rescheduling arrangement is filed in respect of the other party.8.4 If the Designer’s work consists of recurrently performing work of a similar nature, acontinuing performance agreement is involved, unless otherwise agreed in writing. Such anagreement may be terminated only by written notice given while observing a reasonablenotice period of no less than three months, during which period the client must continue topurchase the customary amount of work from the Designer or must provide financialcompensation.
9 Warranties and indemnities
9.1 The Designer warrants that the result has been designed by him or her or on his or herbehalf and, if the result is copyright-protected, that the Designer is the author within themeaning of the Auteurswet (Dutch Copyright Act) and as the copyright owner has power ofdisposition of the work. The Designer warrants that, as far as he/she knows or reasonablyought to know, the result of the work commissioned does not infringe any third-party rightsand is not otherwise unlawful.9.2 If the client uses the results of the work commissioned, it indemnifies the Designer orpersons engaged by the Designer in the performance of the work commissioned against anythird-party claims arising from the application or use of the result of the work commissioned.This is without prejudice to the Designer’s liability towards the client for failure to complywith the warranties referred to in the preceding paragraph and any other liability as referredto in Article 10 of these General Terms and Conditions.9.3 The client indemnifies the Designer against any claim or action relating to intellectualproperty rights in materials or information supplied by the client and used in theperformance of the work commissioned.
10.1 In the event of breach, the Designer must first be given written notice of default, setting areasonable term in which to perform his/her obligations, to correct any errors or to limit orreverse the loss.10.2 The Designer is liable towards the client only for direct damage attributable to the Designer.The Designer’s liability for indirect damage, including consequential damage, loss of profits,loss savings, mutilated or lost data or materials, or damage due to business interruption isexcluded.10.3 Except in the event of intent or wilful recklessness on the part of the Designer, the Designer’sliability is limited to the fee that he or she charged for the work commissioned, or in anyevent the part of the work commissioned to which the liability relates. That amount may notexceed EUR 75,000 and may in no event be higher than the benefit paid to the Designer bythe insurance company in the case in question. The amount for which the Designer is liablein the case in question is reduced by any sums insured by the client.10.4 Any and all liability expires two years from the date on which the work commissioned hasended on the grounds of completion, termination or dissolution.
11 Other provisions
11.1 If the client wishes to commission the work at the same time to parties other than theDesigner, or has previously already commissioned the work to another party, it must informthe Designer accordingly, stating the names of those third parties.11.2 The client is not permitted to transfer or assign to third parties any of the rights under anagreement concluded with the Designer, except in the event of transfer of the client’s entirebusiness or with the Designer’s written consent.11.3 Both parties must keep confidential any and all confidential information, facts andcircumstances that come to their knowledge in the context of the work commissioned, fromeach other or from any other source, of which they can reasonably understand that theirpublication or disclosure to third parties might damage the Designer or the client. The sameduty of confidentiality in respect of such facts and circumstances must be imposed on anythird parties engaged in the performance of the work commissioned.11.4 If any provision of these General Terms and Conditions is void or voided, the otherprovisions of these General Terms of Conditions continue to apply in full. In that case theparties will consult in order to agree on new provisions to replace the void or voidedprovisions that are as closely as possible in keeping with the purpose and scope of the voidor voided provisions.11.5 The headings of these General Terms and Conditions have been included for easy referenceonly and do not form part of these General Terms and Conditions.11.6 All agreements between the Designer and the client are governed by Dutch law. The partieswill first attempt to settle any dispute that arises in consultation. Unless the parties haveexpressly agreed in writing on arbitration, the court that has jurisdiction by law or the courtin the district in which the Designer has its registered office has jurisdiction to hear anddecide on any disputes between the Designer and the client.