Unit040 General Terms and Conditions
1 Agreement, offer and confirmation
1.1 These general terms and conditions (hereinafter: General Terms and Conditions) will apply to all offers and the formation, contents and performance of all agreements entered into between the client and the contractor (hereinafter: the designer). Any derogations from these General Terms and Conditions will require a written agreement between the client and the designer.
1.2 The designer expressly waives the applicability of any general terms and conditions other than these General Terms and Conditions, unless the designer has expressly agreed to such other general terms and conditions in writing. The applicability of other general terms and conditions will, after obtaining the designer’s express and written consent, only relate to that single relevant agreement.
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). The said rates and special offers will not automatically apply to future assignments. The client will warrant the correctness and completeness of the data provided to the designer by or on behalf of the client, on which data the designer bases the offer.
1.4 Mistakes and typing, printing or calculation errors will entitle the designer to (i) revocation or modification, respectively, of its offers or, (ii) if the agreement has already been formed, unilateral amendment of the agreement. The designer is to report the right described above to the client immediately after discovery of the relevant mistake or error. If the modification leads to a material price increase for the buyer, which it should not be deemed to have foreseen, the buyer will have the right to dissolve the relevant agreement.
1.5 Agreements will be confirmed in writing by the client. Should the client fail to do so, but nevertheless agree to the designer commencing the performance of the assignment, the contents of the offer will be deemed agreed and these General Terms and Conditions will be applicable. Any further oral agreements and clauses will not bind the designer until confirmed in writing by the designer.
2 Performance of the Agreement
2.1 The designer will perform its work on the basis of an obligation to perform to the best of its ability. The designer will use its 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 usable for the client, as may be expected from a designer acting reasonably and professionally. To the extent necessary, the designer 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 by the designer, e.g. the timely supplying, or causing the timely supply of, such complete, sound and clear data, materials, specifications or designs as the designer 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 the designer, the designer will have the right to suspend its work until the imperfections described above have been remedied by the client, all at the designer’s discretion.
2.3 A deadline stated by the designer for performing the agreement will be indicative, unless agreed otherwise in writing.
2.4 Unless agreed otherwise, the designer’s assignment will not include:
- a. carrying out 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;
- c. 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 will be carried out in phases, the designer 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 the designer 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 the designer against claims of any third parties, including, but not limited to, employees of the designer 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 the house and security rules applicable within its organisation to the employees engaged by the designer.
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. The designer will have the right 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 reasonably of minor significance.
2.9 Complaints will be communicated to the designer in writing and as soon as possible, but in any event within ten (10) working days of completion of the assignment, failing which the client will be deemed to have fully 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, the designer may, at the 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 the designer in respect of costs of third parties will be indicative. The client cannot derive any rights from such a budget. If so desired, the designer 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, the designer 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 the designer, whether or not in the name of the client, gives assignments or instructions to manufacturing companies or other third parties, the client will, at the designer’s request, confirm the approval referred to in article 2.7 of these General Terms and Conditions in writing. The designer 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 consulting the designer, engage any third parties if this may impact the performance of the assignment as agreed with the designer. The parties will consult, where appropriate, what other contractors will be engaged and with what work they will be entrusted.
3.6 The designer will not be 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 the designer. The client is to contact such parties itself. The designer may, if so desired and at the client’s expense, offer assistance.
3.7 Third parties who receive the assignment from the designer to carry out work, or part thereof, for the designer undertake, by accepting these General Terms and Conditions, to assign all rights of intellectual property vesting in the work created by such third party to the designer, or at least they declare that, by accepting these General Terms and Conditions, they will perform, or have third parties perform, all necessary acts to assign, or have third parties assign, such rights of intellectual property to the designer on the designer’s demand. By accepting these General Terms and Conditions the third parties described above will irrevocably authorise the designer to assign to itself the rights of intellectual property vesting in the work produced by such third party.
- Intellectual Property and Proprietary Rights
4.1 All rights of intellectual property ensuing from the assignment – including, but not limited to patent rights, trademark rights, drawing or design rights, and copyrights – will accrue exclusively to the designer. To the extent such rights can only be obtained by means of an application or registration, only the designer will be authorised to arrange such application or registration, unless the parties agree otherwise in writing.
4.2 The parties may agree that the rights referred to in paragraph 1 can fully or partially be transferred to the client. Such transfer will be subject to the condition precedent that the client has fully performed all its obligations vis-à-vis the designer and any parties affiliated with the designer, all at the designer’s 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 General Terms and Conditions.
4.3 If the 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 transfer to the client, this will not affect the right or the option of the designer, 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 the designer, 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.
4.4 The designer will at all times be entitled to have its name stated on or near, or removed from, any publicity regarding the work in the manner customary for such work. The client may not, without the designer’s prior consent in writing, publish or reproduce the work without stating the name of the designer.
4.5 Unless the parties agree otherwise in writing, title to (the originals of) the work (including, but not limited to designs, design sketches, drafts, recommendations, reports, budgets, estimates, specifications, work drawings, illustrations, photos, prototypes, scale models, templates, prototypes, (partial) products, films, (audio and video) presentations, source codes and other materials or (electronic) files etc.) created by the designer will, for purposes of the assignment, remain vested in the designer, irrespective of whether or not they have been made available to the client or to any third parties.
4.6 Title to all objects delivered to the client will remain vested in the designer until all amounts due by the client to the designer pursuant to the agreement entered into between the parties have been paid to the designer in full. If the client acts as a reseller, it will be authorised to sell and resell all objects subject to the designer’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 the designer, the client will only create such object for the benefit of the designer and the client will retain the newly created object for the designer 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 the designer.
4.7 After completion of the assignment neither the client nor the designer will have a retention obligation with respect to the materials and data used, unless the parties agree otherwise in writing.
5 Use of the Work
5.1 If the client fully performs its obligations pursuant to the agreement with the designer, it will acquire the right to use the work in accordance with its agreed intended use. Should the 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 the parties agree otherwise in writing.
5.2 If the work consists of software:
- a. the source code of the software and the technical documentation created when developing the software will be made available to the client only if the parties have so agreed in writing, in which event the client will be entitled to modify such software.If the designer is ordered by a court to make the source code and/or technical documentation available to the client, the designer may require a reasonable fee in return;
- b. the designer will not be under any obligation to make the support software andprogrammeor data libraries required for the use and/or maintenance of the software available, unless the parties agree otherwise in writing. If, in derogation of the above, the designer must also make support software and/or programme or data libraries available, the designer may require that the client enter into a separate agreement in writing. The making available thereof will, as the occasion arises, be charged separately at the designer’s customary rates;
- c. the designer 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 the parties agree otherwise in writing.If, in derogation of the above, the designer must also provide maintenance and/or support, the designer may require that the client enter into a separate agreement in writing. These activities and services, if any, will be charged separately at the designer’s customary rates;
- d. the client may not modify the software fully or partially without the designer’s prior written consent.The designer 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 the client or made by third parties on the client’s instructions, either with or without the supplier’s consent, all unless the parties agree otherwise in writing and save exceptions provided for by law;
- e. if the 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 constituteattributablefailure in the performance of the agreement with the designer as well as infringement of the rights of intellectual property to the software. The agreed limitations on the use may, inter alia, relate to:
- i. the kind or type of hardware for which the software is intended; and/or
- themaximum number of processing units for which the software is intended; and/or
iii. certain individuals within the client’s organisation – whether or not specified by name or job title – who are allowed to use the software; and/or
- themaximum number of users within the client’s organisation who are authorised – whether or not concurrently – to use the software; and/or
- v. the location where the software may be used; and/or
- certainforms and purposes of use (e.g. business or private use); and/or
vii. any other quantitative or qualitative limitation;
- the client may use the software only in and for the benefit of its 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, all unless the parties agree otherwise in writing;
- 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, all unless the parties agree otherwise in writing.
5.3 If the work consists of visualisations, animations or the otherwise creating of visual material, the client itself will be responsible for (the content of) the work or the use thereof. Furthermore, the work may not be deployed to:
- a. train medical staff (e.g. surgery or other medical interventions / procedures);
- b. support engineers in their work (e.g. when digging pipelines / cables).The client will indemnify the designer against all and any third-party claims on account of deployment of the work in breach of the foregoing.
5.4 By giving the assignment, the Client grants the designer use rights to all rights of intellectual property held by it, including, but not limited to, trademark and design rights, required for realisation of the assignment. If the work also relates to works subject to third-party rights, the parties will make additional arrangements on the use of such third-party works. The client will indemnify the designer against all and any third-party claims on account of infringement of third-party intellectual property rights.
5.5 Without the designer’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. The designer may attach conditions to such consent, including payment of a reasonable fee.
5.6 In the event or non-agreed broader or other use, which will include the changing, corrupting or impairing of the provisional or definitive work, the designer will be entitled to compensation on account of infringement of its rights of at least five thousand euros (EUR 5,000) per infringement, or such compensation as is in reasonable proportion to the infringement committed, without prejudice to any other right.
5.7 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:
- a. the client fails to perform all or part of its payment or other obligations pursuant to the agreement or is otherwise in default;
- b. the assignment is terminated early for reasons referred to in article 8 (1) of these General Terms and Conditions;
- c. 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 article 4 (2) of these General Terms and Conditions.
5.8 The designer 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 Fee and Costs
6.1 The designer 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, or of any other compensation to be agreed between the parties.
6.2 In addition to the agreed fee, the costs incurred by the designer 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 on.
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, the designer is required to carry out more or other activities, such activities will be charged for separately, on the basis of the designer’s customary rates. The designer 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 the designer, the client will be under an obligation to compensate any ensuing costs. The designer 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 Title to all items provided to the client will remain vested in the designer until all amounts due by the client to the designer pursuant to the agreement entered into between the parties have been paid in full to the designer.
7.3 If the client is in default in the full or partial payment of the amounts 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 one hundred and fifty euros (EUR150), exclusive of VAT.
7.4 The designer will ensure timely invoicing. In consultation with the client, the designer may charge agreed fees and costs as an advance payment, either in the course of the agreement or periodically.
7.5 The designer may suspend 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 fourteen (14) days, or if, based on any communication or act by the client, the designer can understand that payment will not be made.
8 Termination and Dissolution of the Agreement
8.1 If the client terminates the agreement by notice without any attributable failure to perform on the part of the designer, or if the designer 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 fee and costs incurred in respect of the work performed up to that moment, be liable to pay damages.
Any conduct on the part of the client based on which the designer may reasonably no longer be required to complete the assignment will, in this respect, also be regarded as attributable failure.
8.2 The damages referred to in the previous paragraph will at least include the costs ensuing from commitments with third parties entered into by the designer in its own name for performance of the assignment, as well as at least 30% of the remaining part of the fee that would have been due by the client if the assignment had been fully performed.
8.3 Both the designer and the client will have the right to dissolve all or part of 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.
8.4 If the work to be performed by the designer includes the repeated performance of similar tasks, the agreement will be regarded as a continuing performance agreement, unless expressly provided otherwise in writing. This agreement 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 the designer.
9.1 If the client uses the work produced under the assignment, the client will indemnify the designer or any third parties engaged by the designer for the performance of the assignment against all and any claims from third parties ensuing from the applications or the use of the work.
9.2 The client will indemnify the designer against claims in respect of rights of intellectual property in all materials and/or data provided by the client that are used in the performance of the assignment.
10.1 The designer’s total liability on account of an attributable failure in the performance of the agreement or for any other reason whatsoever, 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 designer’s liability insurer in respect of the relevant case, increased by any policy excess incurred by the designer under the insurance cover. If, for any reason whatsoever, the liability insurer fails to pay the compensation, the designer’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 one (1) year, the price stipulated for the agreement will be set at the total of the fees (exclusive of VAT) stipulated for one (1) year. In no event, however, will the designer’s total liability for any reason whatsoever exceed an amount of forty-five thousand euros (EUR 45,000). A coherent series of attributable failures will count as one attributable failure. The limitation of liability provided for in this provision will apply mutatis mutandis to any obligation to indemnify of the designer set forth in these General Terms and Conditions.
10.2 The designer’s liability for indirect damage, consequential damage, 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 the designer and damage related to the engaging of suppliers imposed by the client on the designer, will be excluded. The client’s liability on account of corruption, destruction or loss of data or documents will also be excluded.
10.3 The exclusions and limitations of the designer’s liability as described in the foregoing paragraphs of this article 10 will be fully without prejudice to the other exclusions and limitations of the designer’s liability pursuant to these General Terms and Conditions.
10.4 The exclusions and limitations referred to in article 10 (1) – (3) will lapse if and to the extent the damage is the result of intent or deliberate recklessness on the part of the designer or its executive management.
10.5 Unless performance by the designer is permanently impossible, the designer’s liability on account of attributable failure in the performance of an agreement will only arise if the client gives the designer notice of default in writing, setting a reasonable term for the remedy of the default, and the designer 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 the designer to respond adequately.
10.6 A condition for the creation of any right to compensation will at all times be that the client report the damage or loss in writing to the designer as soon as possible after it has arisen. Any claim for damages against the designer will lapse by the mere expiry of twenty-four (24) months after the claim has arisen.
10.7 The client will indemnify the designer 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 delivered by the designer, save to the extent that the client proves that the damage or loss had been caused by such hardware, software or other materials.
10.8 The provisions of this article as well as all other limitations and exclusions of liability referred to in these General Terms and Conditions will also apply in favour of all and any private individuals and legal entities engaged by the client in the performance of the agreement.
10.9 The designer will not be 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 obligation vis-à-vis the designer.
11 Other Provisions
11.1 If the client wishes to give an identical assignment to parties other than the designer, or if the client has already given the assignment to a third party, it will notify the designer thereof, stating the names of such third parties.
11.2 The client may not assign any right under an agreement entered into with the designer to any third party, other than in the event of transfer of its entire business or unless with the designer’s written consent.
11.3 The parties will be under an obligation to observe secrecy with respect to all confidential information, facts and circumstances that come to the other party’s knowledge for purposes of the assignment, either from each other or from another source, of which it may be reasonably understood that publication or communication to third parties may cause damage to the designer or the client. Any third parties involved in the performance of the assignment will, with respect to these facts and circumstances originating from the other party, be held liable to a similar confidential treatment.
11.4 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.
11.5 The headings in these General Terms and Conditions are for convenience only and do not form part of these General Terms and Conditions.
11.6 The agreement between the designer and the client will be governed by Dutch law. The applicability of the Vienna Sales Convention (CISG) will be excluded. The parties will initially try to solve any arisen dispute by mutual consultation. Save when the parties have expressly agreed in writing on arbitration proceedings, the court having jurisdiction pursuant to the law or the court in the district where the designer is located, all at the designer’s discretion, will take cognisance of any disputes between the designer and the client.