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General terms and conditions

General terms
and conditions

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 (hereinafter: 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 non-binding and are valid for 2 (two) months. Quotations may be subject to change due to an unforeseen change in the work. Prices do not include VAT. The rates and offers mentioned in the quotation or other quotations do not automatically apply to future orders. The Client guarantees the correctness and completeness of the information provided to the Designer by or on behalf of him/her on which the Designer bases the quotation.

1.3
Assignments will be 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.

1.4
Disclaimer: This translated version of the General Terms and Conditions is provided for reference purposes only. In case of any discrepancy between this translation and the original Dutch version, the Dutch version shall prevail.
2. The execution of the agreement
2.1
The Designer shall make every effort 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 to the Client, as can and may be expected from a Designer acting reasonably and professionally. Insofar as necessary, the Designer will keep the Client informed of the progress of the work.
 
2.2
The Client will do all that is reasonably necessary and/or desirable to enable a timely and correct delivery by the Designer, such as the timely delivery of complete, sound and clear data and/or materials.
 
2.3
A deadline 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:
carrying out tests, applying for permits and assessing whether instructions from the Client meet legal or quality standards;
investigating the existence of rights, including patent rights, trademark rights, design rights, copyrights or portrait rights of third parties; 
conducting research into the possibility of the possible forms of protection for the Client referred to in subsection b.
 
2.5
Before execution, production, reproduction or publication is carried out, the parties shall give each other the opportunity to check and approve the latest models, prototypes or proofs of the result.
 
2.7
Complaints will be communicated to the Designer in writing as soon as possible, but in any event within 10 (ten) working days after completion of the assignment, failing which the Client will be deemed to have accepted the result of the assignment in full.
 
3. Engaging Third Parties
3.1
Unless otherwise agreed, assignments will be given to third parties by or on behalf of the Client in the context of the execution of the assignment. At the Client's request, the Designer may, at the expense and risk of the Client, act as an authorised representative. The parties may agree on a fee to be agreed upon for this.

3.2
If, at the request of the Client, the Designer draws up an estimate for the costs of third parties, this estimate is indicative. If desired, the Designer can request quotations on behalf of the Client.
 
3.3
If, in the execution of the assignment, the Designer obtains goods or services from third parties at his own expense and risk in accordance with an explicit agreement with the Client, after which these goods or services are (re)supplied or resold to the Client, the provisions of the general terms and conditions of and/or separate agreements with the supplier also apply to the Client. The Designer shall enable the Client to take note of the general terms and conditions of and/or separate agreements with the Supplier.
 
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 shall, at the request of the Designer, 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 consulting the Designer if this may affect the execution of the assignment as agreed with the Designer. Where appropriate, the parties will discuss which third parties 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 they have been introduced by the Designer. The Client must address these parties itself. The Designer can provide assistance in this regard if desired.
4. Intellectual property rights and property rights
4.1
All intellectual property rights to the results resulting from the assignment belong to the Designer. Insofar as such a right can only be acquired by filing or registering, only the Designer is authorised to do so, unless otherwise agreed. "Intellectual property rights" is expressly understood to mean: copyrights, database rights, related rights, trademark rights, design rights, patents, domain name rights, know-how, trade knowledge, trade secrets and all similar rights, wherever in the world arise, whether or not subject to registration and including applications therefor.
 
4.2
The parties may agree that the rights referred to in the first paragraph shall 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 and payment of the agreed fee, a right of use is granted as provided for in Article 5 of these General Terms and Conditions.
 
4.3
The Designer has the right at all times to mention or remove his/her name on, at, or in publicity around the result of the assignment – in the manner customary for that result. The Client is not permitted to publish or reproduce the result without the Designer's prior permission without mentioning the Designer's name.
 
4.4
Unless otherwise agreed, the (originals of the) results (such as designs, design sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photographs, prototypes, models, moulds, (partial) products, films, (audio and video) presentations, source codes, source files and other materials or (electronic) files, etc.) 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 on a fee to be agreed upon for the transfer of the aforementioned results.
 
4.5
After completion of the assignment, the Client and the Designer have no obligation towards each other to retain the (originals of the) results as referred to in 4.4 created by the Designer, unless otherwise agreed.
5. Use of the result
5.1
When the Client fully fulfils his/her obligations arising from the agreement with the Designer, he/she acquires the right to use (license) the result of the assignment in accordance with the intended use. If no agreements have been made about the destination, the right of use is limited to the use for which the assignment has (apparently) been awarded. The right of use is exclusive, unless otherwise stipulated or agreed from the nature of the agreement.
 
5.2
If the result also relates to works that are subject to third-party rights, the parties will make additional agreements on how the use of these works will be arranged.
 
5.3
Without written permission, the Client does not have the right to adjust the result of the assignment, to use or perform it more broadly or in a different way than agreed, or to have this 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 unagreed wider or other use, including alteration, 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, or at least compensation that is proportionate to the infringement committed, without losing any other right.
 
5.5
Without prior consent from the Designer, the Client is not (any longer) allowed to use the result of the assignment or have it further developed, and any rights granted to the Client to use (license) within the scope of the assignment will expire, unless the consequences thereof are contrary to reasonableness and fairness:
a. from the moment the Client fails to fulfill or only partially fulfills his (payment) obligations under the agreement or is otherwise in default;
b. in the event the assignment is terminated prematurely for reasons mentioned in Article 8.1 of this;
c. in the case of the Client's bankruptcy, 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 regard to the interests of the Client, the Designer has the freedom to use the results for his own publicity, acquisition of assignments, promotion, including use on the internet, websites and social media, competitions, and exhibitions, etc., and to receive them on loan when it concerns physical results.

5.7
The Designer can use mock-ups to visually represent designed products or concepts. The purpose of mock-ups is to illustrate the possibilities and potential of the design, and not necessarily to depict the exact reality.

5.8
The Client understands that the use of mock-ups is focused on the visual representation of the design concept, and that any differences between the mock-up and the final product do not form the basis for liability or claims against the Designer. Mock-ups are merely representative visual depictions of the designed product, and minor variations in details and appearance may occur in the actual realization of the product.

5.9
The Designer retains the right, at their discretion and even after the project's completion, to create and use mock-ups for presentation purposes. The use of mock-ups for presentation purposes, both internally and externally, is permitted. This includes the use of mock-ups for promotional purposes, such as on websites, social media, presentations, portfolios, and other promotional channels. The Designer reserves the right to use mock-ups for self-promotion, acquiring new projects, participating in competitions and exhibitions, and other related purposes.
6. 6 Fees and costs
6.1
The Designer is entitled to a fee for carrying out the assignment. This may consist of an hourly rate, a consultancy fee, a fixed amount, or any other agreed-upon compensation between the parties.

6.2
When the Designer is required to perform additional or different work due to the late or incomplete provision of data/materials, a modified or incorrect assignment or briefing, or external circumstances, these additional tasks will be separately compensated based on the customary fee rates applied by the Designer. The Designer will inform the Client about this in advance, unless circumstances make it impossible or the nature of the work does not allow for a delay.
7. Payment and Suspension
7.1
The Designer ensures timely invoicing. In consultation with the Client, the Designer may invoice the agreed-upon fees and costs as an advance payment, interim payments, or periodically.

7.2
All payments must be made without deduction, set-off, or suspension, within 14 days from the invoice date, unless otherwise agreed upon in writing or stated differently on the invoice.

7.3
All items delivered to the Client remain the property of the Designer until all amounts owed by the Client to the Designer under the agreement between the parties have been fully paid.

7.4
If the Client is in default with the full or partial payment of the amounts due, the Client shall be liable for statutory interest and extrajudicial collection costs, which amount to at least 10% of the invoice amount with a minimum of €150, excluding VAT.

7.5
The Designer may suspend the execution of the assignment after the payment term has expired, and the Client, after being notified in writing, fails to make the payment within 14 days or when the Designer, due to a communication or behavior of the Client, reasonably believes that payment will not be made.
8. Breach, Termination, and Dissolution of the Agreement
8.1
In case of a attributable breach, the parties shall first notify each other in writing and allow the other party a reasonable period to fulfill its obligations, rectify any errors, or limit or eliminate any damage. The notice of breach should include the most detailed description of the breach as possible.

8.2
If the Client terminates the agreement (prematurely) without there being an attributable breach by the Designer or if the Designer terminates the agreement due to an attributable breach by the Client in the performance of the agreement, the Client is liable to pay, in addition to the fee and costs incurred for the work performed up to that point, damages. In this context, actions of the Client due to which it can no longer reasonably be expected from the Designer to complete the assignment are also considered as an attributable breach.

8.3
The damages referred to in the previous clause shall include, at the very least, the costs resulting from commitments entered into by the Designer with third parties in their name for the fulfillment of the assignment, as well as 30 (thirty) % of the remaining part of the fee that the Client would owe upon complete fulfillment of the assignment.

8.4
Both the Designer and the Client have the right to immediately terminate the agreement in its entirety or in part, and all amounts owed become immediately due and payable when a request for bankruptcy, (provisional) suspension of payment, or debt restructuring is filed with respect to the other party, or if the other party passes away.

8.5
If the Designer's work consists of repeatedly performing similar tasks, this constitutes a continuing agreement unless otherwise agreed in writing. This agreement can only be terminated by written notice with a reasonable notice period of at least 3 (three) months, during which the Client will continue to request the usual amount of work from the Designer or compensate the Designer financially for the missed revenue and incurred costs.
9. Warranties and Indemnities
9.1
The Designer guarantees that the delivered work has been designed by them or on their behalf, and if the work is protected by copyright, they are considered the creator under the Copyright Act and have the copyright to the work. The Designer guarantees that, to the best of their knowledge or as they should reasonably know, the result of the assignment, at the time of its creation, does not infringe on the rights of third parties or is otherwise unlawful.

9.2
The Client indemnifies the Designer, or third parties engaged by the Designer for the assignment, against all claims from third parties arising from the applications or use of the results of the assignment. This does not affect the Designer's liability towards the Client for non-compliance with the warranties as mentioned in the preceding clause and other liability as specified in Article 10 of these General Terms and Conditions.

9.3
The Client indemnifies the Designer against claims related to intellectual property rights in all materials and/or data provided by the Client, which are used in the execution of the assignment.
10. Liability
10.1 The Designer is only liable for direct damage suffered by the Client, which is the direct and exclusive result of a shortcoming in the execution of the assignment that can be attributed to the Designer. The Designer's liability for consequential and indirect damage, including but not limited to lost profits, missed savings, damage to reputation, mutilated or lost data or materials, or damage due to business interruption, is excluded.

10.2
Except in cases of willful intent or gross negligence by the Designer, the total liability of the Designer is limited to the Designer's fee for the assignment, or that portion of the assignment to which the liability relates. This amount is not higher than €75,000 and is, in any case, always limited to the maximum amount that the insurer pays to the Designer in the given case. The amount for which the Designer is liable in the given case is reduced by any sums insured by the Client.

10.3
Any liability expires two years after the completion, termination, or dissolution of the assignment.
11. Privacy
1.1
If, in the context of the services to be performed, the Designer is required to process personal data of (customers of) the Client, the Designer will be regarded as a "processor" and the Client as a "controller" within the meaning of the General Data Protection Regulation (GDPR) and a processing agreement will be concluded.
12. Force Majeure
12.1
If one of the parties fails to fulfill their obligations, but this cannot be attributed to them (force majeure), that party shall not be liable, and the performance of that obligation shall be suspended for the duration of the force majeure situation.

12.2
Force majeure includes, but is not limited to, weather conditions, fire, strikes, illness, pandemics, epidemics, (war) violence, hacks, cyberattacks, or other technical failures, and circumstances resulting from these, such as government interventions, including quarantine measures, that reasonably prevent one of the parties from fulfilling their obligations and lead to delays, as well as delays or failures by suppliers and/or other third parties involved in the execution of the agreement.

12.3
If one of the parties invokes force majeure, they must notify the other party as soon as possible in writing, with reference to the necessary evidence/reasons.

12.4
If the force majeure situation has lasted for 60 (sixty) days, both parties have the right to terminate the agreement in whole or in part, to the extent justified by the force majeure situation.

12.5
In the case of force majeure, the Designer is entitled to that portion of the fee for the work performed by them and to reimbursement of costs already incurred or that are unavoidable, such as those related to orders and contracts with third parties that cannot be canceled without incurring liability.
13. Miscellaneous
13.1
If the Client wishes to assign the same assignment to parties other than the Designer at the same time or has already assigned the assignment to another party previously, they shall notify the Designer in advance.

13.2
The Client is not allowed to transfer any rights from an agreement with the Designer to third parties, except in the case of a transfer of their entire business or with the prior written consent of the Designer.

13.3
Parties are obliged to maintain confidentiality regarding all confidential information, facts, and circumstances that come to their knowledge in the context of the assignment, from each other or from other sources, and from which it can reasonably be understood that disclosure or communication to third parties could harm the Designer or the Client. Parties shall impose the same duty of confidentiality on their employees or third parties involved in the execution of the assignment with respect to these facts and circumstances originating from the other party.

13.4
If any provision of these General Terms and Conditions is null and void or is annulled, the remaining provisions of these General Terms and Conditions shall remain in full force. In such a case, the parties shall enter into consultations with the aim of agreeing on new provisions to replace the null and void or annulled provisions, while taking into account the purpose and intent of the null and void or annulled provisions as much as possible.

13.5
The headings in these General Terms and Conditions are solely for readability and are not part of these General Terms and Conditions.

13.6
These General Terms and Conditions can be amended at any time. The Designer will inform the Client about this.

13.7
The agreement between the Designer and the Client is governed by Dutch law. Initially, the parties will try to resolve a dispute through mutual consultation. Unless the parties have expressly agreed on arbitration in writing, the competent court according to the law, or the court in the district where the Designer is located, at the Designer's choice, will have jurisdiction over disputes between the Designer and the Client.
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