General Terms and Conditions B2B
1.
Agreement, quotation and confirmation
1.1
These general terms and conditions (hereinafter: General Terms and Conditions) apply to all offers and the creation, content and fulfillment of all agreements concluded between the client (hereinafter: Client) and the contractor Design & Wijn (hereinafter: D&W).
Deviations from these General Terms and Conditions can only be agreed in writing between the Client and D&W.
1.2
Offers are without obligation and are valid for 2 (two) months. Quotations may be subject to change due to an unforeseen change in work and/or raw material prices. Prices are exclusive of VAT.
The rates and offers stated in the quotation or other quotations do not automatically apply to future assignments. The Client guarantees the correctness and completeness of the information provided to D&W by or on behalf of him/her on which D&W bases the quotation.
1.3
Orders are confirmed in writing by the Client. If the Client fails to do so, but nevertheless agrees that the Designer will start executing the assignment, the content of the quotation will be deemed to have been agreed and these General Terms and Conditions will apply. Further oral agreements and stipulations only bind D&W after they have been confirmed in writing by D&W.
2.
The execution of the agreement
2.1
D&W makes 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 reasonable and professional company. Insofar as necessary, D&W will keep the Client informed of the progress of the work.
2.2
The Client will do everything that is reasonably necessary and/or desirable to enable timely and correct delivery by D&W, such as the timely delivery of complete, sound and clear data and/or materials.
2.3
A term specified by D&W for the execution of the assignment is indicative, unless otherwise agreed in writing.
2.4
Unless agreed otherwise, D&W's assignment does not include:
- conducting tests, applying for permits and assessing whether instructions from the Client comply with legal or quality standards;
- conducting research into the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties;
- conducting research into the possibility of the in sub b. intended possible forms of protection for the Client.
2.5
Before implementation, production, reproduction or publication, the parties will give each other the opportunity to check and approve the latest models, prototypes or tests of the result.
2.6
Deviations in the (final) result compared to what has been agreed are no reason for rejection, discount, compensation or dissolution of the agreement, if these deviations, taking all circumstances into account, are reasonably of minor importance.
2.7
Complaints will be communicated to D&W 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 fully accepted the result of the assignment.
3.
Enabling third parties
3.1
Unless agreed otherwise, assignments to third parties in the context of the execution of the assignment are provided by or on behalf of the Client. At the request of the Client, D&W can act as an authorized representative at the expense and risk of the Client. The parties can agree on a fee to be agreed upon for this.
3.2
When D&W draws up a budget for costs of third parties at the request of the Client, this budget is indicative. If desired, D&W can request quotations on behalf of the Client.
3.3
If, in the performance of the assignment, D&W purchases goods or services from third parties at its own expense and risk, according to an express agreement with the Client, after which these goods or services are delivered or resold to the Client, the provisions of the general terms and conditions of and/or separate agreements with the supplier also towards the Client. D&W enables the Client to take cognizance of the general terms and conditions of and/or separate agreements with the supplier.
3.4
When D&W, whether or not on behalf of the Client, issues orders or instructions to production companies or other third parties, the Client will confirm the approval referred to in Article 2.5 of these General Terms and Conditions in writing at the request of D&W.
3.5
The Client will not engage third parties without consultation with the Designer if this may affect the performance of the assignment as agreed with D&W. Where appropriate, the parties will discuss which third parties will be engaged and which activities will be assigned to them.
3.6
D&W 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 D&W. The Client must address these parties itself. D&W can provide assistance with this if desired.
4.
Intellectual property rights and proprietary rights
4.1
All intellectual property rights to the results arising from the assignment accrue to D&W. Insofar as such a right can only be obtained through a deposit or registration, D&W is exclusively authorized to do so, unless agreed otherwise.
“Intellectual property rights” are expressly understood to mean: copyrights, database rights, neighboring rights, trademark rights, design rights, patents, domain name rights, know-how, trade knowledge, trade secrets and all similar rights, wherever they arise in the world, 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 will be transferred to the Client in whole or in part. 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 set out in Article 5 of these General Terms and Conditions.
4.3
D&W has the right at all times to mention or have his/her name mentioned on, with or in publicity surrounding the result of the assignment – in the manner customary for that result – or removed. Without prior permission from D&W, the Client is not permitted to publish or reproduce the result without stating the name of the D&W.
4.4
Unless otherwise agreed, the (originals of) results (such as designs, design sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photos, prototypes, models, templates, (partial) products, films, (audio and video) presentations, source codes, source files and other materials or (electronic) files, etc.) are the property of D&W, regardless of whether these have been made available to the Client or to third parties. The parties can 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 D&W have no retention obligation towards each other with regard to the (originals of the) results produced by D&W as referred to in 4.4, unless agreed otherwise.
5.
Use of the result
5.1
When the Client fully complies with his/her obligations arising from the agreement with D&W, he/she acquires the right to use (license) the result of the assignment in accordance with its destination. If no agreements have been made about the destination, the right of use will be limited to that use for which the assignment has (apparently) been given. The right of use is exclusive, unless the nature of the agreement dictates otherwise or has been agreed otherwise.
5.2
If the result also relates to works subject to the rights of third parties, 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, use or re-use or perform the result of the assignment in a broader or different manner than agreed, or to have this done by third parties. D&W may attach conditions to this permission, including the payment of an additional fee.
5.4
In the event of broader or different use on which no agreement was reached, including alteration, mutilation or impairment of the provisional or final result, D&W is entitled to compensation for infringement of its rights of at least three times the agreed fee, or at least a compensation that proportionate to the infringement committed, without otherwise losing any other right.
5.5
Without prior permission from D&W, the Client is not (or no longer) permitted to use or further develop the result of the assignment and any right of use (license) granted to the Client in the context of the assignment expire, unless the consequences thereof are contrary to reasonableness and fairness:
a. from the moment that the Client does not or does not fully comply with its (payment) obligations under the agreement or is otherwise in default;
b. if the assignment is terminated prematurely for reasons stated in Article 8.1 of these General Terms and Conditions;
c. in the event of bankruptcy of the Client, unless the relevant rights have been transferred to the Client in accordance with Article 4.2 of these General Terms and Conditions.
5.6
With due observance of the interests of the Client, D&W is free to use the results for its own publicity, acquisition of assignments, promotion, including use on the internet, websites and social media, competitions and exhibitions, etc., and to loan them out. when it comes to physical results.
6.
Fee and costs
6.1
D&W is entitled to a fee for carrying out the assignment. This may consist of an hourly rate, a consultancy fee, a fixed amount or another fee agreed between the parties.
6.2
In addition to the agreed fee, the costs that D&W incurs for the performance of the assignment, such as office, travel and accommodation costs, costs for prints, copies, (printing) tests, prototypes, and costs of third parties for advice, production and supervision ed, eligible for reimbursement. These costs are specified in advance as much as possible, except when a surcharge percentage is agreed.
6.3
If D&W is forced to perform more or other work due to late or non-delivery of complete, sound and clear data/materials, due to a changed or incorrect assignment or briefing, or due to external circumstances, these activities will be honored separately, at based on the usual fee rates applied by D&W. D&W will inform the Client about this in advance, unless this is not possible due to circumstances or the nature of the work does not allow for a delay.
7.
Payment and suspension
7.1
D&W ensures timely invoicing. In consultation with the Client, D&W may charge the agreed fee and costs as an advance, in the interim or periodically.
7.2
All payments must be made without deduction, set-off or suspension, within 30 days of the invoice date, unless otherwise agreed in writing or stated otherwise on the invoice.
7.3
All goods delivered to the Client remain the property of D&W until all amounts that the Client owes the Designer on the basis of the agreement concluded between the parties have been paid in full to D&W.
7.4
If the Client is in default with full or partial payment of the amounts due, the Client owes 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
D&W may suspend the execution of the assignment after the payment term has expired and the Client, after having been warned in writing to pay within 14 days, fails to do so, or if D&W must understand that payment will not be made due to a statement or behavior from the Client. .
8.
Attributable shortcoming, cancellation and dissolution of the agreement
8.1
In the event of an attributable shortcoming, the parties will first give each other written notice of default and, with due observance of a reasonable term, enable the other party to still fulfill its obligations, or to repair any errors or to limit damage or to to lift. The notice of default must contain as detailed a description as possible of the shortcoming.
8.2
If the Client terminates the agreement (prematurely) without there being an attributable shortcoming on the part of D&W, or if D&W dissolves the agreement due to an attributable shortcoming in the fulfillment of the agreement by the Client, the Client is, in addition to the fee and the costs incurred with regard to the work performed up to that time, compensation is due. Behavior of the Client on the basis of which D&W can no longer reasonably be expected to complete the assignment, will also be regarded as an attributable shortcoming in this context.
8.3
The compensation referred to in the previous paragraph includes at least the costs arising from the obligations entered into by D&W in its own name with third parties for the fulfillment of the assignment, as well as 30 (thirty) % of the remaining part of the fee that the Client will pay upon full fulfillment of the assignment. the order would be due.
8.4
Both D&W and the Client have the right to dissolve the agreement immediately in whole or in part, and all amounts due become immediately due and payable if a request for bankruptcy, (provisional) suspension of payment, or debt restructuring is filed with regard to the other party, or the other party dies.
8.5
If the activities of D&W consist of the repeated performance of similar activities, then this is a continuing performance contract, unless otherwise agreed in writing. This agreement can only be terminated by written notice with due observance of a reasonable notice period of at least 3 (three) months, during which period the Client will continue to purchase the usual amount of work from D&W, or will compensate D&W financially for the lost turnover and made cost.
9.
Warranties and Indemnities
9.1
D&W guarantees that the delivered work has been designed by or on behalf of him/her and that, if the result is copyrighted, he/she is regarded as a creator within the meaning of the Copyright Act and can dispose of the work as the copyright holder. D&W guarantees that the result of the assignment at the time of its realization, as far as he/she knows or should reasonably know, does not infringe the rights of third parties or is otherwise unlawful.
9.2
The Client indemnifies D&W, or third parties engaged by D&W for the assignment, against all third-party claims arising from the applications or use of the results of the assignment. This is without prejudice to D&W's liability towards the Client for non-compliance with the guarantees as referred to in the previous paragraph and other liability as referred to in Article 10 of these General Terms and Conditions.
9.3
The Client indemnifies D&W against claims with regard to intellectual property rights on all materials and/or data provided by the Client, which are used in the performance of the assignment.
10.
Liability
10.1
D&W is only liable for direct damage suffered by the Client that is the direct and exclusive result of a shortcoming attributable to D&W in the performance of the assignment. D&W's liability for consequential and indirect damages, including but not limited to loss of profit, lost savings, image damage, mutilated or lost data or materials, or damage due to business interruption, is excluded.
10.2
Except in the case of intent or willful recklessness on the part of the Designer, D&W's total liability is limited to D&W's fee for the assignment, or at least that part of the assignment to which the liability relates. This amount does not exceed € 75,000 and is in any event limited at all times to a maximum of the amount that the insurer pays out to D&W in the appropriate case. The amount for which D&W is liable in the appropriate case is reduced by any sums insured by the Client.
10.3
Any liability lapses after two years from the moment the assignment is terminated by completion, cancellation or dissolution.
11.
Privacy
11.1
If D&W has to process personal data of (customers of) the Client in the context of the services to be provided, D&W will be regarded as a "processor" and the Client as "responsible" within the meaning of the General Data Protection Regulation (GDPR) and a processing agreement concluded.
12.
Force majeur
12.1
If one of the parties fails to fulfill its obligations, but this cannot be attributed to it (force majeure), that party is not liable and the fulfillment of that obligation is suspended for the duration of the force majeure situation.
12.2
Force majeure includes (but is not limited to) weather conditions, fire, strike, disease, pandemic, epidemic, (war) violence, hacks, cyber attacks or other technical failures and circumstances resulting from this, such as government interventions including quarantine measures, which reasonably prevent one of the parties from complying and which lead to delays, as well as delays or shortcomings at suppliers and/or other third parties engaged in the implementation of the agreement.
12.3
If one of the parties invokes force majeure, he/she must inform the other party in writing as soon as possible, citing the necessary supporting documents/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, insofar as the force majeure situation justifies this.
12.5
In the event of force majeure, D&W is entitled to that part of the fee for the work performed by him/her and to reimbursement of the costs that D&W has already incurred or that are unavoidable, for example in connection with orders already placed and assignments to third parties that can no longer be canceled without liability for damages.
13.
Other provisions
13.1
If the Client wishes to give the same assignment to others than D&W at the same time or has already given the assignment to someone else, he/she will inform D&W of this in advance.
13.2
The Client is not permitted to transfer any right under an agreement concluded with D&W to third parties, other than in the case of transfer of his/her entire company or with the prior written permission of D&W.
13.3
The parties are obliged to maintain the confidentiality of all confidential information, facts and circumstances that come to the attention of the other party in the context of the assignment, from each other or from another source, of which it can reasonably be understood that disclosure or communication to third parties will prevent D&W or could cause damage to the Client. The parties will bind their employees or third parties involved in the performance of the assignment to the same duty of confidentiality with regard 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 other provisions of these General Terms and Conditions will remain in full force. In that case, the parties will consult with the aim of agreeing on new provisions to replace the void or voided provisions, whereby the purpose and scope of the void or voided provisions will be taken into account as much as possible.
13.5
The headings in these Terms and Conditions are for ease of reading only and do not form part of these Terms and Conditions.
13.6
These Terms and Conditions can be changed at any time. D&W will inform the Client about this.
13.7
Dutch law applies to the agreement between D&W and the Client. The parties will initially try to resolve a dispute in 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 D&W has its registered office, at the option of D&W, will take cognizance of disputes between D&W and the Client.
