Unit040 General Terms and Conditions
1. Agreement, offer and confirmation
1.1 These general terms and conditions (hereinafter referred to as: the(se) GTC) will apply to all offers and the formation, contents and performance of all agreements entered into between the client and Unit040 Ontwerp B.V., a private limited company incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid), having its offices in (5626 DC) Eindhoven, the Netherlands, at the address of Hooge Zijde 30, registered with the Dutch chamber of commerce (Kamer van Koophandel) under number 17196056 (hereinafter referred to as: Prespective), hereinafter jointly referred to as: the Parties.
1.2 The (partial) applicability of any general terms and conditions, for example those of the client, other than these GTC is hereby explicitly excluded. Other general terms and conditions can only be (partially) applicable to any agreement entered into with Prespective after prior written approval thereof is given by Prespective.
1.3 All oral or written offers, irrespective of their form, will be subject to contract and will be valid for two (2) months, unless provided otherwise. Quotations may be subject to changes due to an unforeseen change in the work. Prices will be in euros and net of turnover tax (VAT). Said prices and (other) offers will not automatically apply to future assignments and/or agreements entered into by Prespective. The client warrants to Prespective that any and all information that has been or will be provided by him/her to Prespective is correct and complete, since Prespective may base her offer to the client on said information.
1.4 Mistakes and typing, printing and/or calculation errors will entitle Prespective to (i) revisit and/or modify her offer(s) to the client or, (ii) if the agreement has already been formed, unilaterally amend said agreement. Prespecive has to report her usage of the rights described above to the client immediately after discovery of the relevant mistake or error.
1.5 Agreements will be confirmed in writing by the client. Should the client fail to do so, but nevertheless agree to Prespective commencing the performance of the assignment, the contents of the offer will be deemed agreed and these GTC will be applicable. Any further oral agreements and clauses will not legally bind Prespective until confirmed to the client in writing by Prespective.
2. Performance of the Agreement
2.1 Prespective will perform her work on the basis of an obligation to perform to the best of her ability. Prespective will use her best efforts to perform the assignment carefully and independently, to promote the client’s interests to the best of its knowledge, and to endeavour to create a work and/or provide the services (whichever is applicable under the agreement) usable for the client, as may be expected from a professional in the field of business in which Prespective is exploiting her business. To the extent necessary, Prespective will keep the client informed of the progress of the work.
2.2 The client will do everything reasonably necessary or desirable to enable timely and correct provision of the assignment under the agreement by Prespective, e.g. the timely supplying, or causing the timely supply of, such complete, sound and clear data, materials, specifications or designs and/or the provision of the services as Prespective indicates or the client understands, or should reasonably understand, that these are necessary for the performance of the agreement. In the event of identification of imperfections in the correctness, completeness and consistency of the data, materials, specifications or designs made available to Prespective, Prespective will have the right to suspend its work until the imperfections described above have been remedied by the client, all at Prespective’s sole discretion.
2.3 A deadline stated by Prespective for performing the agreement as a whole, or a specific assignment under the agreement, will be indicative and not a strict deadline (fatale termijn), unless agreed otherwise in writing.
2.4 Unless agreed otherwise, Prespective’s assignment under the agreement will not include:
the carrying out of technically calculated and/or approved tests, applying for licences and assessing whether instructions given by the client meet statutory or quality standards;
carrying out searches as to the existence of third-party rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights; and
studying the possibility of the possible forms of protection for the client as referred to under b.
2.5 If it has been agreed that (the work under) the assignment will be carried out in phases, Prespective will have the right to suspend the commencement of the work pertaining to a particular phase until the work of the previous phase has been fully and unconditionally approved by the client.
2.6 In the event that employees of Prespective perform work at the client’s location, the client will, free of charge, provide the facilities reasonably required by such employees, e.g. a working space with computer, data and telecommunications facilities. The work space and facilities will satisfy all statutory and other applicable requirements regarding employment conditions. The client will indemnify Prespective against claims of any third parties, including, but not limited to, employees of Prespective who, in connection with the performance of the agreement, suffer damage resulting from acts or omissions on the part of the client or from unsafe situations in the latter’s organisation. The client will, before commencement of the work, communicate to Prespective the house and security rules applicable within its organisation to the employees engaged by Prespective.
2.7 Prior to performance, production, reproduction or publication, the Parties will allow each other the opportunity to inspect and approve the latest models, prototypes or trials of the work. Prespective is legally entitled to suspend its work until the client has fully and unconditionally approved the models, prototypes or trials described above in writing.
2.8 Derogations in the work from what has been agreed will not be reason for rejection, discount, damages or dissolution of the agreement, if such derogations, all circumstances considered, are reasonable and/or of minor significance.
2.9 Complaints with regard to the work, the assignment and/or the execution of this agreement will be communicated to Prespective in writing and as soon as possible, but in any event within 10 (ten) working days of completion of the assignment. If the client does not complain to Prespective in due time or (at the latest) within the aforementioned period, the client will be deemed to have fully and satisfactory accepted the work produced under the assignment.
3. Engagement of Third Parties
3.1 Unless agreed otherwise, assignments to third parties for purposes of performance of the assignment will be provided by or on behalf of the client. At the client’s request, Prespective may, at the sole expense and risk of the client, act as authorised representative. The Parties may agree on a fee to be subsequently determined.
3.2 Any budget made by Prespective in respect of costs of third parties will be indicative. The client cannot derive any rights from such a budget. If so desired, Prespective may apply for offers on behalf of the client.
3.3 If, during the performance of the assignment and in accordance with an express written agreement, Prespective procures goods or services of third parties, after which such goods or services are passed on to the client, the provisions of the general terms and conditions of, and/or separate arrangements with, the relevant third parties regarding the guarantee and liability will also apply vis-à-vis the client.
3.4 If Prespective, whether or not in the name of the client, gives assignments or instructions to manufacturing companies or other third parties, the client will, at Prespective’s request, confirm the approval referred to in article 2.7 of these GTC in writing. Prespective will have the right to suspend its work until the client has fully and unconditionally given the approval described above in writing.
3.5 The client will not, without prior written consent of Prespective, engage any third parties if this may impact the performance of the assignment as agreed with Prespective. Parties will consult, where appropriate, what other contractors will be engaged and with what work they will be entrusted.
3.6 Prespective cannot be held liable for errors or defects in products or services provided by third parties engaged by or on behalf of the client, irrespective of whether such third parties were introduced by Prespective. The client is to contact such parties itself. Prespective may, if so desired and at the client’s expense, offer assistance.
3.7 Third parties who receive the assignment from Prespective to carry out work, or part thereof, for Prespective undertake, by accepting these GTC, to assign all rights of intellectual property vesting in the work created by such third party to Prespective, or at least they declare that, by accepting these GTC, they will perform, or have third parties perform, all necessary acts to assign, or have third parties assign, such rights of intellectual property to Prespective on Prespective’s demand. By accepting these GTC, the third parties described above will irrevocably authorise Prespective to assign to itself the rights of intellectual property vesting in the work produced by such third party.
4. Intellectual Property and Proprietary Rights
4.1 Nothing under these GTC, in any agreement and/or in relation to the execution of any agreement between Parties shall be construed as granting any rights under any patent, copyright and/or other intellectual property right of Prespective, save for as otherwise provided in these GTC.
4.2 All rights of intellectual property ensuing from the assignment and (the execution of) this agreement – including, but not limited to patent rights, trademark rights, drawing or design rights, and copyrights – will accrue exclusively to Prespective. To the extent such rights can only be obtained by means of an application or registration, only Prespective will be authorised to arrange such application or registration, unless Parties agree otherwise in writing.
4.3 Notwithstanding articles 4.1 and 4.2 of these GTC, Parties may agree that the rights referred to in article 4.2 of these GTC can fully or partially be transferred to the client, which will be the case under the following type of agreements entered into between the client and Prespective:
an agreement regarding the training of (employees of) the client to work with Prespective’s soft- and/or hardware, in which case the client can be entitled to the work that has been created by c.q. on behalf of him/her during said training; and
an agreement regarding the creation of a specific application for c.q. on behalf of the client, in which case the intellectual property rights relating to said application (only the application itself, not the underlying soft- and/or hardware) can be transferred to the client.
Under any (such) agreement, any transfer will be subject to the condition precedent that the client has fully performed all his/her obligations towards Prespective and any engaged third parties (if any), all at Prespective’s sole discretion. The transfer and the conditions to which the transfer is subject will at all times be set forth in writing. Up to the moment of transfer, a use right will be granted as provided for in article 5 of these GTC.
4.4 If Parties agree in writing that a right of intellectual property to software, websites, data files, hardware, or any other materials specifically designed for the client will be transferred to the client, this will not affect the right or the option of Prespective, without limitation, to use and/or operate the component parts, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and such like for other purposes, either for itself or for third parties. The transfer of a right of intellectual property will not affect the right of Prespective, either for itself or for a third party, to make developments that are similar to, or have been derived from, such developments as have been, or will be, made for the client.
4.5 All intellectual property rights, titles and/or other (property) rights to all works and/or objects delivered to the client under this agreement will remain the sole property of and/or vested in Prespective until all amounts due by the client to Prespective pursuant to the agreement have been paid to Prespectivbe in full. If the client acts as a reseller, it will be authorised to sell and resell all objects subject to the Prespective’s retention of title to the extent that this is customary for purposes of the normal course of its businesses. If the client creates a new object (partly) from objects supplied by Prespective, the client will only create such object for the benefit of Prespective and the client will retain the newly created object for Prespective until the client has paid all amounts due pursuant to the agreement; in such event title to the newly created object will, until the moment of payment in full by the client, remain vested in Prespective.
4.6 After completion of the assignment neither the client nor Prespective will have a retention obligation with respect to the materials and data used, unless Parties agree otherwise in writing.
5. Use of the Work
5.1 If the client fully performs its obligations pursuant to the agreement with Prespective, he/she will acquire the right to use the work in accordance with its agreed intended use. Should Parties not have made any arrangements on the intended use, the use right will remain limited to such use for which the assignment was (apparently) given. The use right is non-exclusive, not transferable to third parties, and cannot be sublicensed, unless Parties agree otherwise in writing.
5.2 If the work consists of software:
the source code of the software and the technical documentation created when developing the software will be made available to the client only if Parties have so agreed in writing, in which event the client will be entitled to modify such software. If Prespective is ordered by a court to make the source code and/or technical documentation available to the client, Prespective may require a reasonable fee in return;
Prespective will not be under any obligation to make the support software and programme or data libraries required for the use and/or maintenance of the software available, unless Parties agree otherwise in writing. If, in derogation of the above, Prespective must also make support software and/or programme or data libraries available, Prespective may require that the client enters into a separate agreement in writing. The making available thereof will, as the occasion arises, be charged separately at Prespective’s customary rates;
Prespective will not be under any obligation to maintain the software and/or to provide support to the users of the software in any form whatsoever, unless Parties agree otherwise in writing. If, in derogation of the above, Prespective must also provide maintenance and/or support, Prespective may require that the client enters into a separate agreement in writing. These activities and services, if any, will be charged separately at Prespective’s customary rates;
the client may not modify the software fully or partially without Prespective’s prior written consent. Prespective will at all times be entitled to withhold, or attach conditions to, its consent, including conditions regarding the method and quality of implementation of the modifications required by the client. The client will bear the full risk of any modifications made by him/her or made by third parties on the client’s instructions, either with or without Prespective’s consent, all unless Parties agree otherwise in writing and save exceptions provided for by law;
if Parties have agreed on limitations on use, the client will at all times strictly respect the agreed limitations in the right to use the software. The client is aware that violation of the agreed limitation on use will constitute attributable failure in the performance of the agreement with Prespective as well as infringement of the rights of intellectual property to the software;
the client may use the software only in and for the benefit of his/her own business or organisation and the client may not use the software for the processing of data for the benefit of third parties, e.g. time sharing, application service provision, software as a service, and outsourcing, unless Parties agree otherwise in writing; and/or
the client may not sell, rent out or dispose of the software and the carriers on which the software has been recorded, or establish, or have a third party establish, restricted rights to such software or carriers, or make such software and carriers available to third parties in any manner or for any purpose whatsoever. The client may not grant a third party remote or other access to the software or transfer the software to third parties for hosting purposes, even if the relevant third party uses the software exclusively for the client, unless Parties agree otherwise in writing.
5.3 If the work consists of simulations, visualisations, animations and/or the otherwise creating of visual material, the client itself will be responsible for (the content of) the work and/or the use thereof. The client is aware of the fact and confirms that Prespective has a wide variety of clients active in different (technical) fields of expertise in which Prespective herself is not active. As a result thereof, Prespective cannot, and can also reasonably not, be held responsible for the content of the work and/or the use thereof by the client.
5.4 The client will indemnify Prespective against all and any third-party claims resulting from the use, granting, deployment and/or any other use of the work in breach of articles 5.1, 5.2 and/or 5.3 of these GTC.
5.5 Insofar as necessary for the execution of the assignment, the client grants Prespective use rights to all rights of intellectual property held by him/her, including, but not limited to, trademark and design rights. If the assignment also relates to works subject to third-party rights, Parties will make additional arrangements on the use of such third-party works. The client will indemnify Prespective against any and all third-party claims on account of infringement of any, including but not limited to the aforementioned, third-party intellectual property rights.
5.6 Without Prespective’s written consent, the client will not be entitled to adjust the work created on the basis of the assignment, to use, re-use or perform such work in a broader or other manner than agreed, or to have third parties do this. Prespective may attach conditions to such consent, including payment of a reasonable fee.
5.7 In the event of a non-agreed broader or other use, which will include the changing, corrupting or impairing of the provisional or definitive work, Prespective will be entitled to compensation on account of infringement of its rights of at least € 5.000,- (five thousand euros) per infringement, or any such damage compensation as is in reasonable proportion to the infringement committed, without prejudice to any other right vested in Prespective.
5.8 The client may not, or no longer, use the work made available and any right to use granted to the client for purposes of the assignment will lapse, if:
the client fails to perform all or part of its payment or other obligations pursuant to the agreement or is otherwise in default;
the assignment is terminated early for reasons referred to in article 8 of these GTC;
the client is declared bankrupt, is granted suspension of payments, or if the statutory debt restructuring scheme is declared applicable to the client, unless the relevant rights have been transferred to the client in accordance with these GTC.
5.9 Prespective will, with due observance of the client’s interests, be free to use the work for its own publicity, securing assignments, promotion, including competitions and exhibitions, etc., and, in the event of a physical work, to get them on loan.
6. Fees and Costs
6.1 Prespective will be entitled to a fee for carrying out the assignment, which may consist of an hourly rate, a consultancy fee, a fixed amount, whether or not related to the project sum, and/or any other compensation to be agreed between Parties.
6.2 In addition to the agreed fee, the costs incurred by Prespective in carrying out the assignment, such as office, travel and subsistence expenses, costs of prints, copies, printing and other proofs, prototypes, and third-party costs of advice, production and supervision, etc., will also be eligible for compensation. Such costs must be specified in advance to the extent possible, save in the event that a mark-up percentage is agreed upon between Parties.
6.3 If, due to the late delivery or non-delivery of full, sound and clear data/materials, a changed or incorrect assignment or briefing, or due to external circumstances, Prespective is required to carry out more or other activities, such activities will be charged for separately, on the basis of Prespective’s customary rates. Prespective will inform the client thereof in advance, unless this is not possible due to circumstances or if the nature of the activities does not permit any delay.
6.4 If the performance of the assignment is delayed or interrupted on account of circumstances that cannot be attributed to Prespective, the client will be under an obligation to compensate any ensuing costs. Prespective will try to limit the costs to the maximum extent possible.
7. Payment and Suspension
7.1 All payments are to be made in euros, without any deduction, set-off or suspension, within fourteen (14) days of the date of the invoice, unless agreed otherwise in writing or stated otherwise in the invoice.
7.2 If the client is in default in the full or partial payment of any amount(s) due, the client will have to pay statutory commercial interest and extra-judicial collection costs, which will amount to at least 10% of the amount of the invoice with a minimum of € 150,- (one hundred and fifty euros), exclusive of VAT.
7.3 Prespective will ensure timely invoicing. In consultation with the client, Prespective may charge agreed fees and costs as an advance payment, either in the course of the agreement or periodically.
7.4 Prespective is legally entitled to suspend the performance of the assignment after the payment term has lapsed and the client fails to pay, even after having been summoned in writing to do so within 14 (fourteen) days, or if, based on any communication or act by the client, Prespective can understand that (timely) payment will not be made.
8. Termination and Dissolution of the Agreement
8.1 If the work to be performed by Prespective includes the repeated performance of similar tasks, including but not limited to, the provision of services to the client, the agreement will be regarded as a continuing performance agreement, unless expressly provided otherwise in writing. Such an agreement will be entered into for an indefinite time period, unless Parties have agreed otherwise in writing, and may be terminated only by written notice, with due observance of a reasonable notice period, during which period the client will continue to purchase, or financially compensate, the usual quantity of work from Prespective.
8.2 If the client terminates the agreement by notice without any attributable failure to perform on the part of Prespective, or if Prespective dissolves the agreement on account of attributable failure in the performance of the agreement on the part of the client, the client will, in addition to the fees and costs which were due under the agreement up to that moment, be liable to pay damages. Any conduct on the part of the client based on which Prespective may reasonably no longer be required to complete the assignment will, in this respect, also be regarded as attributable failure.
8.3 The damages referred to in article 8.2 of these GTC will at least include the costs ensuing from commitments with third parties entered into by Prespective in its own name for performance of the assignment, as well as at least 30% (thirty percent) of the remaining part of the fee that would have been due by the client if the assignment had been fully performed.
8.4 Both Parties are entitled to dissolve the agreement with immediate effect, and all amounts due will become immediately due and payable, if the bankruptcy, suspension of payment of debts or a provisional suspension of payments of debts, or statutory debt adjustment in respect of the other party is applied for or granted.
8.5 Articles 4, 5, 8, 9, 10, 11 and 12 of these GTC will survive the termination, for whatever (statutory) reason, of the agreement, any other agreement to which these GTC are applicable and/or these GTC indefinitely.
9.1 The client will indemnify Prespective against all and any third-party claims on account of product liability as a result of a defect in a product or system supplied by the client to a third party, which included hardware, software or other materials created by Prespective under the agreement and/or previous agreements.
9.2 Following from, amongst other things but not excluded thereto, article 2.4 of these GTC, if the client uses the work produced under the assignment, the client will indemnify Prespective or any third parties engaged by Prespective for the performance of the assignment against all and any claims from third parties ensuing from the applications or the use of the work.
9.3 The client will indemnify Prespective against all third-party claims in respect of rights of intellectual property in all materials and/or data (indirectly) provided by the client to Prespective that are used in the performance of the assignment.
10.1 Prespective’s total liability on account of an attributable failure in the performance of the agreement or for any other reason whatsoever in connection to any agreement with the client, expressly including any failure in the performance of a warranty obligation agreed on with the client, will be limited to compensation of direct damage up to the amount paid by the Prespective’s liability insurer in respect of the relevant case, increased by any policy excess incurred by Prespective under the insurance cover.
10.2 If, for any reason whatsoever, the liability insurer fails to pay the compensation, Prespecive’s liability will be limited to the amount of the price stipulated for such agreement (exclusive of VAT), or at least to such part of the agreement to which the liability relates. If the agreement is mainly a continuing performance agreement for a term of more than 1 (one) year, the price stipulated for the agreement will be set at the total of the fees (exclusive of VAT) stipulated for 1 (one) year. In no event, however, will Prespective’s total liability for any reason whatsoever exceed an amount of € 45.000,- (forty-five thousand euros). A coherent series of attributable failures will count as one attributable failure.
10.3 Prespective cannot be held liable for indirect and/or consequential damages, including but not limited to: lost profits, lost savings, reduced goodwill, damage due to business interruption, damage due to claims from customers of the client, damage related to the use of objects, materials or software of third parties imposed by the client on Prespective and/or damages related to the engaging of suppliers imposed by the client on Prespective.
10.4 Unless performance by Prespective is permanently impossible, Prespective’s liability on account of attributable failure in the performance of an agreement will only arise if the client gives Prespective notice of such a default in writing, setting a reasonable term for the remedy of the default, and Prespective continues to fail attributably in the performance of its obligations after such term. The respective notice of default must contain a description of the failure that is as complete and accurate as possible, so as to allow Prespective to respond adequately.
10.5 Prespective cannot be held liable to compensate any damage if, at the moment of occurrence of the event leading to liability, the client is in default in the performance of any of his/her obligations towards Prespective.
10.6 The provisions of this article 10 as well as all other limitations and exclusions of liability referred to in these GTC will also apply in favour of all and any private individuals and legal entities engaged by Prespective in the performance of the agreement.
11. Confidential Information
11.1 Notwithstanding the provisions of a confidentiality agreement that may be entered into between Parties, Parties agree not to use or disclose any Confidential Information (as defined below) disclosed to either party to the other party or which has become known and/or disclosed to a party during the performance of the assignment and/or the execution of the agreement, for a party’s own use and/or for any purpose other than to carry out discussions concerning, and the undertaking of, the assignment.
11.2 Parties agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the disclosing party in order to prevent it from falling into the public domain or in the possession of persons other than persons to whom the disclosing party consents to such disclosure. Upon request by the disclosing party, any materials and/or documents that have been furnished by said party to the other, receiving party in connection with the assignment and/or the (execution of) the agreement shall be promptly returned by the receiving party to the disclosing party.
11.3 Confidential Information means any information, technical data and/or know-how (whether disclosed before or after entering into a/the agreement between Parties), including, but not limited to, (any of) the disclosing party’s intellectual property rights, information relating to business and product or service plans, financial projections, customer lists, business forecasts, sales and merchandising, human resources, intellectual property right applications, computer object or source code, research, inventions, processes, designs, drawings, engineering, marketing or finance to be confidential or proprietary or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
11.4 Confidential Information does not include information, technical data or know-how that:
is in the possession of the receiving party at the time of disclosure, as shown by the receiving party’s files and records immediately prior to the time of disclosure; and/or
becomes part of the public knowledge or literature, not as a direct or indirect result of any improper inaction or action of the receiving party.
11.5 It is strictly forbidden for the Parties to disclose any Confidential Information without the prior written approval of the disclosing party or pursuant to the order or requirement of a court, administrative agency or other governmental body.
11.6 Nothing under the assignment and/or in the agreement shall be construed as granting any rights in or to the Parties’ Confidential Information, except the limited right to use the Confidential Information in connection with the assignment and/or the (execution of) the agreement.
11.7 Parties shall take all reasonable precautions when dealing with the Confidential Information.
11.8 When the agreement ends or upon demand by the disclosing party, the receiving party shall return all Confidential Information to the disclosing party or destroy such Confidential Information.
11.9 If a party does not comply with, breaches and/or violates any of the provisions described in this article 11, it/he/she will incur a directly payable penalty of € 10.000,- (ten thousand euros) to the other, non-infringing party.
12. Final Provisions
12.1 If the client wishes to give an identical assignment to parties other than Prespective, or if the client has already given the assignment to a third party, it will notify Prespective thereof, stating the names of such third parties.
12.2 These GTC may be amended or supplemented unilaterally by Prespective, Prespective will give the client written notice of any such amendment. Any other derogations from these GTC will require a written agreement between Parties.
12.3 If a provision of these GTC turns out to be void or non-binding, Parties continue to be bound to the other provisions of these GTC.
12.4 Claims and/or rights that may ensue from the agreement cannot be transferred by the client without the prior written consent of Prespective, this with effect under property law (met goederenrechtelijke werking) as defined in section 3:83(2) of the Dutch Civil Code.
12.5 If any provision of these General Terms and Conditions is void or is nullified, the other provisions of these General Terms and Conditions will continue to be in full force and effect. In such event, the parties will consult in order to agree on new provisions to replace the void or nullified provisions, taking into account the purpose and the purport of the void or nullified provisions to the extent possible.
12.6 The agreement, any other agreement to which these GTC are applicable and/or these GTC, and any non-contractual obligations arising out of or in connection with the agreement and/or the assignment, are exclusively governed by Dutch law.
12.7 Any disputes arising out of or in connection with the agreement, any other agreement to which these GTC are applicable and/or these GTC, the execution thereof and/or the assignment, including regarding the existence or validity of the agreement and/or any other agreement in that regard, and any non-contractual obligations arising out of or in connection with the agreement and/or the assignment, are subject to the sole and exclusive jurisdiction of the competent court in the district of Oost-Brabant, the Netherlands.