Terms and Conditions
Loes van Esch & Simone Trum
3014 PX Rotterdam
L 06 26 804 921
S 06 26 130 980
1 Agreement, quotation and confirmation
1.1 These general terms and conditions apply, with the exclusion of purchase or other conditions of the client, to the establishment, content and fulfillment of all agreements concluded between the client and the contractor.
1.2 Quotations are without obligation and are valid for 2 months. Quotations may be subject to change due to an unforeseen change in the work. Prices are exclusive of VAT and other government levies. Mentioned rates and offers do not automatically apply to future assignments.
1.3 Orders must be confirmed in writing by the client. If the client fails to do so, but nevertheless agrees that the contractor will start executing the order, the content of the quotation will be deemed to have been agreed. Further oral agreements and stipulations are only binding on the contractor after they have been confirmed in writing by the contractor.
1.4 If the client simultaneously gives the same assignment to parties other than the contractor or has already given the order to another party, he must inform the contractor, stating the names of these others.
2 The execution of the agreement
2.1 The contractor will make every effort to carry out the assignment carefully and independently, to represent the client’s interests to the best of his knowledge and to strive for a result that is useful for the client. To the extent necessary, the contractor will
keep the client informed of the progress of the work.
2.2 The client is obliged to do everything that is reasonably necessary or desirable to enable a timely and correct delivery by the contractor, in particular by the timely delivery of complete, sound and clear data or materials.
2.3 A term specified by the contractor for completing the design is indicative, unless the nature or content of the agreement shows otherwise. The client must give the contractor written notice of default if 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, duplication or publication, the parties must give each other the opportunity to share the latest models, prototypes or samples of the design for check and approval. If the contractor, whether or not in the name of the client, will give orders or instructions 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 as soon as possible, but in any case within ten working days after completion of the assignment, failing which the client is deemed to have fully accepted the result of the assignment.
3 Enabling third parties
3.1 Unless otherwise agreed, assignments to third parties, within the framework of the
of the design, provided by or on behalf of the client. At the client’s request, the contractor may act as an authorized representative at the client’s expense and risk. The parties can agree on a further payment to be made for this.
3.2 If the contractor draws up a budget for the costs of third parties at the request of the client, this budget will only have an indicative purpose. If desired, the contractor can request quotes on behalf of the client.
3.3 If, in the performance of the assignment, the contractor purchases goods or services from third parties in accordance with an explicit agreement at its own expense and risk, after which these goods or services are passed on to the client, the provisions of the supplier’s general terms and conditions with regard to the quality, quantity, quality and delivery of these goods or services also apply to the client.
4 Intellectual property rights and proprietary rights
4.1 Unless otherwise agreed, all intellectual property rights arising from the order – including patent law, 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 conducting 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 is not suitable for it, the contractor is at all times entitled to mention or remove his/her name on or near the work and the client is not allowed to remove, publish or reproduce the name of the contractor in the work without prior permission.
4.4 Unless otherwise agreed, the working drawings, illustrations, prototypes, models, moulds, designs, design sketches, films and other materials or (electronic) files created by the contractor in the context of the assignment remain the property of the contractor, regardless of whether these have been made available to the client or to third parties.
4.5 After completion of the assignment, neither the client nor the contractor have a retention 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 purpose agreed in the assignment. If no agreements have been made about the destination, the licensing will be limited to that use of the design for which there were firm intentions at the time the order was awarded. These intentions must be demonstrably made known to the contractor before the agreement is concluded.
5.2 Without the written permission of the contractor, the client is not entitled to use the design more widely or in a different way than has been agreed. In the event of wider or other use not agreed, including alteration, 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 fee that is reasonably and fairly proportionate to the infringement committed, without prejudice to the right of to claim compensation from the contractor for the damage actually suffered.
5.3 The client is not (any longer) permitted to use the results made available and any license granted to the client in the context of the assignment will lapse:
a. from the moment that the client does not (fully) fulfill his (payment) obligations 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 of this are contrary to reasonableness and fairness.
5.4 The contractor has the freedom to use the design for its own publicity or promotion, taking into account the interests of the client.
6 Fee and additional costs
6.1 In addition to the agreed fee, the costs incurred by the contractor for the execution of the assignment are also eligible for reimbursement.
6.2 If the contractor is forced to perform more or different work due to the late or non-delivery of complete, sound and clear data/materials or due to an amended or incorrect assignment or briefing, these activities must be honored separately, based on the usual fees charged by the contractor.
6.3 If the fee is made dependent in any way on facts or circumstances that must be apparent from the client’s administration, the contractor has the right, after a statement from the client, to have the client’s administration checked by an accountant to be chosen by the contractor. If the outcome 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 audit 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 term, the contractor has not yet received (full) payment, the client will be 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 excl. VAT.
7.2 The contractor has the right to charge his fee monthly for work performed and costs incurred for the performance of the assignment.
7.3 The client shall make the payments owed to the contractor without discount or set-off, except for set-off against deductible advances relating to the agreement, which he has provided to the contractor. The client is not entitled to suspend payment of invoices for work already performed.
8 Termination and dissolution of the agreement
8.1 When the client cancels an agreement, he must pay, in addition to compensation, the fee and the costs incurred with regard to the work performed up to that point.
8.2 If the agreement is dissolved by the contractor due to an attributable shortcoming in the fulfillment of the agreement by the client, the client must pay, in addition to compensation, the fee and the costs incurred with regard to the work performed up to that point. Conduct 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 commitments entered into by the contractor in its own name with third parties for the fulfillment of the assignment, as well as at least 30% of the remaining part of the fee that the the client would owe upon complete fulfillment of the order.
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) suspension of payments of the other party. In the event of the client’s bankruptcy, the contractor has the right to terminate the right of use granted, unless the consequences of this 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 associated payment obligation shall not be subject to cancellation, 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 he has already properly performed or delivered for the execution of the agreement, will remain due in full with due observance of the provisions 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 repeatedly performing similar work, the agreement applicable thereto will, unless otherwise in writing has been agreed, apply for an indefinite period of time. This agreement can only be terminated by written notice, with due observance of a reasonable notice period of at least three months.
9 Warranties and Disclaimers
9.1 The contractor guarantees that the delivered goods have been designed by or on behalf of him/her and that, if the design is subject to copyright, he/she is regarded as the creator within the meaning of the Copyright Act and can dispose of the work as copyright holder.
9.2 The client indemnifies the contractor or persons engaged by the contractor for the assignment against all third-party claims 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 rights
of intellectual property on materials or data provided by the client, which are used in the execution 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 execution of the agreement if these find their cause or cause in actions of the client, such as the
late or non-delivery of complete, sound and clear data/materials.
c. errors or shortcomings engaged by or on behalf of the client and third parties.
d. defects in quotations from suppliers or for exceeding quotations of
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 the opportunity
was told to carry out an inspection and did not make use of it.
f. errors or shortcomings in the design or the text/data, if the client
has failed to produce or have a particular model, prototype or test performed, and these errors would have been observable in such model, prototype or test.
10.2 The Contractor is solely liable for direct damage attributable to it. Direct damage only includes:
a. reasonable costs to determine the cause and extent of the damage, insofar as the
determination relates to damage within the meaning of these terms and conditions;
b. any reasonable costs necessary to compensate for the defective performance of the contractor
to comply with 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.
The contractor’s liability for all damage other 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 the event of willful misconduct or willful recklessness on the part of the contractor or the management of the contractor – therefore with the exception of subordinates -, the contractor’s liability for damage under an agreement or an unlawful act committed against the client is limited to the invoice amount. that on
the performed part of the assignment, less the amount paid by the assignment
costs incurred by the contractor for engaging third parties, on the understanding that this amount will not exceed € 5,000 and in any case limited at all times to a maximum of the amount that the insurer pays out to the contractor in the appropriate case.
10.4 Any liability expires one year from the moment the assignment is completed.
10.5 The client is obliged, if reasonably possible, to keep copies of materials and data provided by him until the order 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 client is not permitted to transfer any right from an agreement concluded with the contractor to third parties, other than in the case of transfer of his entire company.
11.2 The parties are obliged to treat confidentially facts and circumstances that come to the attention of the other party in the context of the assignment. Third parties involved in the execution of the assignment will be bound by the same confidential treatment with regard to these facts and circumstances originating from the other party.
11.3 The headings in these general terms and conditions only serve to improve readability and do not form part of these terms and conditions.
11.4 Dutch law applies to the agreement between the contractor and the client. The court to take cognizance of disputes between the contractor and the client is the competent court in the district where the contractor is established, or the competent court according to the law, at the discretion of the contractor.