1. Agreement, quotation and confirmation
1.1 All general terms and conditions are, with the exclusion of purchase or other conditions of the client, applicable to the formation, content and performance of all concluded between the client and the contractor. similarities.
1.2 Offers are without obligation and are valid for 30 days. Quotations can under go changes due to an unfore seen change in the work. Mentioned rates and offers do not automatically apply to future assignments.
1.3 Assignments must be confirmed in writing by the client. If the client fails to do so, but nevertheless agrees that the contractor commences the execution of the assignment, the content of the quotation will be deemed to have been agreed. Further verbal agreements and stipulations are only binding for the contractor after they have been confirmed in writing by the contractor.
1.4 If the client wishes to give the same assignment to others than this contractor at the same time or has already given the assignment to someone else before, he must inform the contractor, stating the names of these to notify others.
2. The execution of the agreement
2.1 The contractor will endeavor to carry out the assignment carefully and independently, to represent the interests of the client to the best of its knowledge and to strive for a result that is useful for the client. Insofar as necessary, the contractor will keep the client informed of the progress of the work.
2.2 The client is obliged to do all that is reasonably necessary or desirable to enable a timely and correct delivery by the contractor, in particular by providing complete, reliable and clear data or materials.
2.3 A term stated by the contractor for the completion of the design is indicative, unless the nature or content of the agreement indicates otherwise. The client must give the contractor written notice of default in the event that the specified term is exceeded.
2.4 Unless otherwise agreed, performing tests, applying for permits and assessing whether instructions from the client meet legal or quality standards are not part of the contractor's assignment.
2.5 Before proceeding to 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, whether or not in the name of the client, gives orders or directions to production companies or other third parties, the client must confirm his above-mentioned approval in writing at the request of the contractor.
2.6 Complaints must be communicated to the contractor in writing within 14 days after completion of the assignment, failing which the client will be deemed to have fully accepted the result of the assignment.
3. Engaging third parties
3.1 Unless otherwise agreed, assignments to third parties in the context of the realization of the design are issued by or on behalf of the client. At the request of the client, the contractor can act as an agent at the expense and risk of the client. The parties can agree on a further payment to be made for this.
3.2 If the contractor prepares a budget for the costs of third parties at the request of the client, this budget will only be indicative. If desired, the contractor can request quotations on behalf of the client.
3.3 If, in the performance of the assignment, the contractor obtains goods or services from third parties according to express agreement at his own expense and risk, after which these goods or services are passed on to the the provisions of the general terms and conditions of the supplier with regard to the quality, quantity, quality and delivery of these goods or services also apply to the client.
4. Intellectual property rights and property rights
4.1 Unless otherwise agreed, all intellectual property rights arising from the assignment - including patent right, design right and copyright - belong to the contractor. Insofar as such a right can only be obtained through a deposit or registration, only the contractor is authorized to do so.
4.2 Unless otherwise agreed, the assignment does not include 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 is at all times entitled to mention or remove his / her name on or near the work and it is the The client is not permitted to publish or reproduce the work without stating the name of the contractor without prior permission.
4.4 Unless otherwise agreed, the working drawings, illustrations, prototypes, models, molds, designs, design sketches, films and other materials or (electronic) files, property of the contractor, regardless of whether they have been made available to the client or third parties.
4.5 After completion of the assignment, neither the client nor the contractor have any obligation towards each other with regard to the materials and data used.
5. Use and license
5.1 When the client fully complies with his obligations under the agreement with the contractor, he obtains an exclusive license to use the design insofar as this concerns the right of publication and reproduction in accordance with the destination agreed upon in the order. If no agreements have been made about the destination, the granting of the license will be limited to that use of the design for which there were firm intentions at the time the assignment was given. These intentions must be demonstrably communicated to the contractor before the conclusion of the agreement.
5.2 Without the written permission of the contractor, the client is not entitled to use the design more widely or in any other way than agreed. In the event of non-agreed broader or different use, including modification, mutilation or damage to the provisional or final design, the contractor is entitled to compensation for infringement of his / her rights of at least three times the agreed fee, or at least a compensation. which is reasonably and fairly proportionate to the infringement committed, without prejudice to the right of the contractor to claim compensation for the damage actually suffered.
5.3 The client is no longer permitted to use the results made available and any license granted to the client in the context of the assignment will lapse:
from the moment that the client does not (fully) fulfill his (payment) obligations under the agreement or is otherwise in default, unless the shortcoming of the client is of minor importance in the light of the entire assignment.
b. if the assignment, for whatever reason, is terminated prematurely, unless the consequences thereof are contrary to reasonableness and fairness.
5.4 Taking into account the interests of the client, the contractor is free to use the design for its own publicity or promotion.
6. Fee and additional costs
6.1 s In addition to the agreed fee, the costs incurred by the contractor for the performance of the assignment are also eligible for reimbursement.
6.2 If the contractor is forced to perform more or other activities due to the late or non-delivery of complete, reliable and clear data / materials or due to an amended or incorrect assignment or briefing, these activities must be remunerated separately, on the basis of the usual fee rates applied by the contractor.
6.3 If the remuneration is in any way dependent on facts or circumstances, which must be apparent from the client's records, the contractor has the right, after a statement from the client, to keep the administration of the have the client audited by an accountant to be chosen by the contractor. If the result of the audit by the accountant deviates by more than 2% or € 100, = from the statement and settlement by the client, the costs of this check will be borne by the client.
7.1 Payments must be made within 30 days of the invoice date. If after the expiry of this period by the contractor no (full) payment has yet been received, the client is in default and will owe interest equal to the statutory interest. All costs incurred by the contractor, such as legal costs and extrajudicial and judicial costs, including the costs for legal assistance, bailiffs and collection agencies, incurred in connection with late payments, will be borne by the client. The extrajudicial costs are set at at least 10% of the invoice amount with a minimum of € 150, - excluding VAT.
7.2 The contractor has the right to charge his fee monthly for work performed and costs incurred for the execution of the assignment.
7.3 The client makes the payments due to the contractor without discount or set-off, except for set-off against the deductible advances related to the agreement, which he has made to the contractor. The client is not entitled to suspend payment of invoices for work already performed.
8. Cancellation and dissolution of the agreement
8.1 When the client cancels an agreement, he must, in addition to compensation, pay the fee and the costs incurred with regard to the work performed up to that time.
8.2 If the agreement is terminated by the contractor due to an attributable shortcoming in the performance of the agreement by the client, the client must, in addition to compensation, pay the fee and the costs incurred in relation to the to pay for work performed up to that point. Behavior of the client on the basis of which the contractor can no longer reasonably be expected to complete the assignment, are in this context also regarded as an attributable shortcoming.
8.3 The compensation referred to in the previous two paragraphs of this article will at least include the costs arising from the contractor's own name for the fulfillment of the 4/5 General Conditions BNO / January 2005. 1 assignment, commitments entered into with third parties, as well as at least 30% of the remaining part of the fee that the client would owe if the assignment was fully fulfilled.
8.4 Both the contractor and the client have the right to immediately dissolve the agreement in whole or in part in the event of bankruptcy or (provisional) moratorium of the other party. In the event of bankruptcy of the client, the contractor has the right to terminate the right of use granted, unless the consequences thereof are contrary to reasonableness and fairness.
8.5 In the event of dissolution by the client due to an attributable shortcoming in the fulfillment of the obligations by the contractor, the performances already delivered and the related payment obligation will not be subject to reversal, unless the client proves that the contractor is in default with regard to those performances. Amounts that the contractor has invoiced before the dissolution in connection with what it has already properly performed or delivered for the performance of the agreement will remain due in full with due observance of the previous sentence and will become immediately due and payable at the time of the dissolution.
8.6 If the work of the contractor consists of the repeated performance of similar work, the applicable agreement will be valid for an indefinite period, unless otherwise agreed in writing. This agreement can 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 delivered items have been designed by or on behalf of him / her and that, if the design is copyrighted, he / she is considered the creator within the meaning of the Copyright Act and as copyright owner can dispose of the work.
9.2 The client indemnifies the contractor or persons engaged by the contractor with the assignment against all claims from third parties arising from the applications or the use of the result of the assignment.
9.3 The client indemnifies the contractor against claims with regard to intellectual property rights on materials or data provided by the client that are used in the performance of the assignment.
10.1 The contractor is not 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 these are prompted or caused by actions of the client, such as the late or non-delivery of complete, reliable and clear data / materials.
c. Errors or shortcomings of third parties engaged by or on behalf of the client.
d. Defects in quotations from suppliers or for exceeding quotations from suppliers.
e. Errors or shortcomings in the design or the text / data, if the client, in accordance with the provisions of art. 2.5 has given its approval or has been given the opportunity to carry out an inspection and has not used it.
f. Errors or shortcomings in the design or the text / data, if the client has not created a particular model, prototype or test, and these errors are discernible in such a model, prototype or test. would have been.
10.2 The Contractor is only liable for direct damage attributable to him. Direct damage is only understood to mean:
a. Reasonable costs to determine the cause and extent of the damage.
b. Any reasonable costs necessary to have the contractor's defective performance conform to the agreement;
c. Reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to limitation of the direct damage as referred to in these general terms and conditions. Liability of the contractor for all other damage than the aforementioned, such as indirect damage, including consequential damage, loss of profit, mutilated or lost data or materials, or damage due to business interruption, is excluded.
10.3 Except in case of willful misconduct or willful recklessness on the part of the contractor or the contractor's management -subordinates therefore excluded-, the contractor's liability for damage under an agreement or of an unlawful act committed against the client, limited to the invoice amount that relates to the executed part of the assignment, less the costs incurred by the contractor for engaging third parties.
10.4 Any liability expires one year from the time the engagement is completed.
10.5 The client is obliged, if reasonably possible, to retain copies of materials and data provided by him until the assignment 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 parties are obliged to treat facts and circumstances that come to the knowledge of the other party in the context of the assignment confidentially. Third parties involved in the performance of the assignment will be bound by the same confidential treatment with regard to these facts and circumstances originating from the other party.
11.2 The agreement between the contractor and client is governed by Dutch law. The court for hearing disputes between the contractor and the client is the competent court in the district where the contractor is located, or the court competent according to the law, at the discretion of the contractor.
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