General Terms and Conditions

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1 Applicability

1.1
These general terms and conditions (hereinafter: “General Terms and Conditions”) apply to all offers and to the formation, content, and performance of all agreements concluded between the client and the contractor (hereinafter: “designer”). Deviations from these General Terms and Conditions may only be agreed in writing between the client and the designer.
1.2
Offers are non-binding and valid for two months. Quotations may be subject to change due to unforeseen alterations in the work. Prices are exclusive of VAT. Stated rates and offers do not automatically apply to future assignments. The client warrants the accuracy and completeness of the data provided by or on behalf of the client to the designer, on which the designer bases the quotation.
1.3
Assignments must be confirmed in writing by the client. If the client fails to do so but nonetheless agrees that the designer commences execution of the assignment, the content of the quotation shall be deemed agreed upon and these General Terms and Conditions shall apply. Further oral agreements and stipulations shall only be binding upon the designer after written confirmation by the designer.

2 Performance of the Agreement

2.1
The designer shall endeavour to execute the assignment carefully and independently, to safeguard the interests of the client to the best of his/her knowledge, and to strive for a result that is useful to the client, as may reasonably be expected from a competent and professional designer. Where necessary, the designer shall keep the client informed of the progress of the work.
2.2
The client shall do all that is reasonably necessary or desirable to enable timely and proper delivery by the designer, such as timely providing (or having provided) complete, sound, and clear data or materials, of which the designer indicates, or of which the client understands or should reasonably understand, that they are necessary for the performance of the agreement.
2.3
Any time period stated by the designer for completing the assignment is indicative, unless otherwise agreed in writing.
2.4
Unless otherwise agreed, the designer’s assignment does not include:
a. carrying out tests, applying for permits, and assessing whether the client’s instructions comply with legal or quality standards;
b. investigating the existence of rights, including patent rights, trademark rights, design rights, copyrights, or portrait rights of third parties;
c. investigating the possibility of the protective forms referred to under b. for the client.
2.5
Before proceeding with execution, production, reproduction, or publication, the parties shall give each other the opportunity to check and approve the final models, prototypes, or proofs of the result.
2.6
Deviations in the (final) result compared to what was agreed shall not constitute grounds for rejection, discount, compensation, or dissolution of the agreement, if such deviations, taking all circumstances into account, are reasonably of minor significance.
2.7
Complaints must be 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 shall be deemed to have fully accepted the result of the assignment.

3 Engagement of Third Parties

3.1
Unless otherwise agreed, orders to third parties in connection with the execution of the assignment shall be placed by or on behalf of the client. At the request of the client, the designer may act as agent at the expense and risk of the client. The parties may agree on an additional fee for this.
3.2
If, at the client’s request, the designer prepares a cost estimate for third-party services, such estimate shall be indicative. If desired, the designer may request quotations on behalf of the client.
3.3
If, in the execution of the assignment, the designer, pursuant to explicit agreement, procures goods or services from third parties at his/her own expense and risk, which are then supplied to the client, the provisions of the general terms and conditions of and/or separate agreements with the supplier regarding warranty and liability shall also apply to the client.
3.4
If the designer, whether or not in the name of the client, gives orders or instructions to production companies or other third parties, the client shall, at the designer’s request, confirm in writing the approval referred to in Article 2.5 of these General Terms and Conditions.
3.5
The client shall not engage third parties without consultation with the designer where this may affect the execution of the assignment as agreed with the designer. In such cases, the parties shall consult on which other contractors are to be engaged and what work is to 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 they were introduced by the designer. The client must address such third parties directly. The designer may, if desired, provide assistance.

4 Intellectual Property Rights and Ownership Rights

4.1
All intellectual property rights arising from the assignment—including patent rights, trademark rights, design rights, and copyrights—on the results of the assignment shall vest in the designer. Insofar as such rights can only be obtained through filing or registration, only the designer is entitled to do so, unless otherwise agreed.
4.2
The parties may agree that the rights referred to in the first paragraph are wholly or partly transferred to the client. Such transfer, including the conditions under which it takes place, shall always be recorded in writing. Until the moment of transfer, a right of use shall be granted as provided in Article 5 of these General Terms and Conditions.
4.3
The designer shall at all times have the right to have his/her name mentioned or removed on, with, or in publicity relating to the result of the assignment—in the manner customary for that result. The client is not permitted, without prior consent of the designer, to disclose or reproduce the result without crediting the designer.
4.4
Unless otherwise agreed, the (originals of the) results created by the designer in the context of the assignment (such as designs, sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photographs, prototypes, models, moulds, (partial) products, films, (audio and video) presentations, source codes, and other materials or (electronic) files, etc.) shall remain the 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 shall be under any duty to retain the materials and data used, unless otherwise agreed.

5 Use of the Result

5.1
Once the client has fully complied with his obligations under the agreement with the designer, the client acquires the right to use the result of the assignment in accordance with the agreed purpose. If no agreements have been made regarding the purpose, the right of use shall remain limited to the use that could reasonably have been intended when the assignment was given. The right of use is exclusive, unless the nature of the agreement dictates otherwise or unless otherwise agreed.
5.2
If the result also relates to works subject to third-party rights, the parties shall make additional arrangements on how the use of such works will be regulated.
5.3
The client is not entitled, without written permission, to adapt, extend, reuse, or otherwise exploit the result of the assignment beyond what was agreed, or to allow third parties to do so. The designer may attach conditions to such consent, including the payment of a fair compensation.
5.4
In the event of unauthorized broader or different use, including alteration, mutilation, or impairment of the provisional or final result, the designer shall be entitled to compensation for infringement of his/her rights amounting to at least three times the agreed fee, or at least a compensation that is reasonable and fair in relation to the infringement committed, without prejudice to any other rights.
5.5
The client is no longer permitted to use the results provided, and any right of use granted to the client in connection with the assignment shall lapse, unless the consequences thereof would be contrary to reasonableness and fairness:
a. from the moment the client fails to meet his (payment) obligations under the agreement, either in whole or in part;
b. if the assignment is terminated prematurely for reasons referred to in Article 8.1 of these General Terms and Conditions;
c. in the event of the client’s bankruptcy, unless the rights concerned have been transferred to the client in accordance with Article 4.2 of these General Terms and Conditions.
5.6
Subject to due regard for the interests of the client, the designer shall be free to use the results for his/her own publicity, acquisition of assignments, promotion—including competitions and exhibitions—and to borrow them, in the case of physical results.

6 Fees and Costs

6.1
The designer is entitled to a fee for performing 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 remuneration agreed upon by the parties.
6.2
In addition to the agreed fee, the costs incurred by the designer in performing the assignment—such as office expenses, travel and accommodation expenses, costs for prints, copies, (printing) proofs, prototypes, and third-party costs for advice, production, and supervision, etc.—shall also be reimbursed. These costs shall be itemized in advance as much as possible, unless a percentage surcharge has been agreed.
6.3
If, due to late or incomplete provision of sound and clear data/materials, a changed or incorrect assignment or briefing, or external circumstances, the designer is required to perform additional or different work, such work shall be compensated separately, on the basis of the designer’s customary rates. The designer shall inform the client of this in advance, unless this is not possible due to the circumstances or the nature of the work does not allow for delay.
6.4
If the execution of the assignment is delayed or interrupted due to circumstances not attributable to the designer, the client shall be obliged to reimburse any costs incurred as a result. The designer shall make every effort to limit such costs.

7 Payment and Suspension

7.1
All payments must be made without deduction, set-off, or suspension, within 30 days from the invoice date, unless otherwise agreed in writing or otherwise stated on the invoice.
7.2
All items delivered to the client shall 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.
7.3
If the client defaults in full or partial payment of the amounts due, the client shall owe statutory interest and extrajudicial collection costs, which shall amount to at least 10% of the invoice amount with a minimum of €150 excluding VAT.
7.4
The designer shall ensure timely invoicing. In consultation with the client, the designer may invoice the agreed fee and costs as an advance payment, interim, or periodic instalments.
7.5
The designer may suspend performance of the assignment once the payment term has expired and, after the client has been given written notice to pay within 14 days, the client still fails to do so, or when the designer must reasonably conclude from a communication or behaviour of the client that payment will not be made.

8 Termination and Dissolution of the Agreement

8.1
If the client terminates the agreement without attributable breach by the designer, or if the designer dissolves the agreement due to attributable breach by the client in the performance of the agreement, the client shall owe, in addition to the fee and the costs incurred in relation to the work performed up to that point, compensation for damages. Acts of the client as a result of which the designer can no longer reasonably be required to complete the assignment shall also be deemed attributable breaches in this respect.
8.2
The compensation referred to in the previous paragraph shall include at least the costs arising from commitments entered into by the designer in his/her own name with third parties for the fulfilment of the assignment, as well as at least 30% of the remaining portion of the fee that the client would have owed upon full performance of the assignment.
8.3
Both the designer and the client shall have the right to dissolve the agreement, in whole or in part, with immediate effect, and all amounts owed shall become immediately due and payable, if a petition for bankruptcy, (provisional) suspension of payment, or debt restructuring is filed with respect to the other party.
8.4
If the designer’s work consists of repeated performance of similar work, this shall be deemed a continuing performance agreement, unless otherwise agreed in writing. Such agreement may only be terminated by written notice, subject to a reasonable notice period of at least three months, during which the client shall continue to procure the usual amount of work from the designer, or else provide financial compensation.

9 Warranties and Indemnities

9.1
The designer warrants that the work delivered has been created by or on behalf of him/her and that, insofar as copyright subsists in the result, he/she qualifies as the author within the meaning of the Dutch Copyright Act and may dispose of the work as the copyright holder. The designer warrants that the result of the assignment, at the time of its creation, does not infringe any third-party rights or is otherwise unlawful, to the best of his/her knowledge or as he/she should reasonably know.
9.2
When the client uses the results of the assignment, the client shall indemnify the designer and any third parties engaged by the designer in the assignment against all third-party claims arising from the applications or use of the result of the assignment. This does not affect the liability of the designer towards the client for failure to comply with the warranties 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 shall indemnify the designer against claims concerning intellectual property rights in all materials and/or data provided by the client, which are used in the performance of the assignment.

10 Liability

10.1
In the event of an attributable failure, the designer must first be given notice of default in writing, with a reasonable period in which to still perform his/her obligations, to correct any errors, or to limit or remedy any damages.
10.2
The designer shall only be liable to the client for direct damages attributable to the designer. The designer shall not be liable for indirect damages, including consequential damages, lost profits, missed savings, mutilated or lost data or materials, or damages due to business interruption.
10.3
Except in cases of intent or deliberate recklessness on the part of the designer, the designer’s liability shall be 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 shall in any event always be limited to the maximum amount paid out to the designer by the insurer in the relevant case. The amount for which the designer is liable, if applicable, shall be reduced by any amounts insured by the client.
10.4
Any liability shall expire two years after the assignment has ended by completion, termination, or dissolution.

11 Miscellaneous Provisions

11.1
If the client wishes to award the same assignment simultaneously to parties other than the designer, or has previously awarded the assignment to another party, the client shall inform the designer of this, stating the names of these other parties.
11.2
The client is not permitted to transfer any right under an agreement concluded with the designer to third parties, except in the event of a transfer of the client’s entire business or with the written consent of the designer.
11.3
The parties are obliged to maintain confidentiality regarding all confidential information, facts, and circumstances that become known to them in the context of the assignment from each other or from another source, where it can reasonably be understood that disclosure to third parties could harm the designer or the client. Third parties involved in the performance of the assignment shall be bound by the same duty of confidentiality with respect to these facts and circumstances originating from the other party.
11.4
If any provision of these General Terms and Conditions is null and void or annulled, the remaining provisions shall remain in full force and effect. In such case, the parties shall consult with the aim of agreeing on new provisions to replace the void or annulled provisions, whereby the purpose and intent of the original provisions shall be observed as closely as possible.
11.5
The headings in these General Terms and Conditions are intended solely to facilitate 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. The parties shall in the first instance attempt to resolve any dispute by mutual consultation. Unless the parties have expressly agreed in writing to arbitration, the competent court according to the law, or the court in the district where the designer is established, at the designer’s discretion, shall have jurisdiction to hear disputes between the designer and the client.

12 Online Purchases and Illustrated Designs

12.1
Products offered for sale on the designer’s website are provided with original illustrated designs created by or on behalf of the designer. By placing an order through the website, the client accepts that minor variations in colour, size, or design may occur compared to the images shown online. Such variations do not constitute grounds for rejection, return, or compensation unless otherwise stated.
12.2
All illustrated designs remain the intellectual property of the designer in accordance with Articles 4 and 5 of these General Terms and Conditions. The purchase of a product does not entail the transfer of intellectual property rights. The client acquires only the right to personal use of the purchased product.
12.3
It is strictly prohibited to reproduce, copy, modify, distribute, or otherwise commercially exploit the designs, images, or illustrations without the prior written consent of the designer.
12.4
Orders placed through the website are binding upon confirmation of payment. Delivery times are indicative. The designer shall not be liable for delays caused by third-party delivery services or other circumstances beyond the designer’s reasonable control.
12.5
If a product is defective or damaged upon delivery, the client must notify the designer in writing within 7 days of receipt. In such cases, the designer shall, at its discretion, offer a replacement product or refund, provided the defect or damage is not the result of improper use by the client.