General Terms & Conditions
General Terms & Conditions Loulou & Tummie V.O.F.
1/5 General Conditions Loulou & Tummie.
1 Agreement, offers and confirmation
1.1 These General Terms and Conditions apply to the exclusion of any purchase or other conditions of the client to the prepa- ration, content and performance of all agreements between the client and the contractor.
1.2 All offers are without commitment and are valid for two months. Prices quoted may be subject to change owing to unforeseen changes in the work. Prices are exclusive of VAT and other government levies. The rates and offers quoted will not automatically apply to future commissions.
1.3 Commissions must be confirmedbytheclientinwriting.
If the client fails to do so but consents to the contractor com- mencing the work commissioned, the terms of the offer will be deemed to have been agreed. Any subsequent oral agree- ments and stipulations will not be binding on thecontractor unless he has confi rmed them in writing.
1.4 If the client wishes to commission identical work to a party other than the contractor or hasalready commissioned the work to another party, he must inform the contractor accord-ingly inwriting, stating the names of those other parties.
2 Performance of the agreement
2.1 The contractor must make every effort to perform the work commissioned carefully andindependently, to promote the client’s interests to the best of his ability and to achieve a resultthat is useful to the client. To the extent necessary the contractor must keep the client advised ofthe progress of the work.
2.2 The client must do any and all things that are reason-
ably necessary or required to enable thecontractor to deliver punctually and properly, in particular by supplying (or causing the supply of)complete, sound and clear data or materials in a timely manner.
2.3 Terms quoted by the contractor for completion of the design are approximations only, unless thenature or content of the agreement requires otherwise. If the stipulated term is exceeded, theclient must give the contractor notice of default in writing.
2.4 Unless otherwise agreed, the performance of tests, the application for permits and theassessment whether the cli-ent’s instructions comply with statutory or quality standards do not fallwithin the scope of the work commissioned to the contractor.
2.5 Prior to production, reproduction or publication, each party must give the other the opportunity tocheck and approve
the finaldraft,prototypeorgalleyproofsofthedesign.Ifthe contractor is toplace orders with or give instructions to manu- facturing companies or other third parties, whetheror not in the client’s name, the client must confirmhisaforesaidapprovalin writing at thecontractor’s request.
2.6 Any complaints to the contractor must be filedinwritingat the earliest possible time but not laterthan within ten business days after completion of the work commissioned, failing which the clientwill be deemed to have accepted the work commis- sioned in its entirety.
3 Engagement of third parties
3.1 Unless otherwise agreed, instructions to third parties to be given in the context of executing thework commissioned will be given by or on behalf of the client. At the client’s request thecontractor may act as an agent for the client’s account and risk. The parties may agree on a feefor such services. General Terms and Conditions of Loulou & Tummie V.O.F.
3.2 If the contractor provides an estimate of third-party costs at the client’s request, such estimatewill be an approximation only. If required, the contractor may seek quotations from third partieson the client’s behalf.
3.3 If the contractor procures goods or services from third parties in the performance of the workcommissioned, for the contractor’s own account and risk and on the basis of an expressagreement, the general conditions of such supplier with regard to the quality, quantity, propertiesand delivery of such goods or services will also apply to the client.
4 Intellectual and other property rights
4.1 Unless otherwise agreed, all intellectual property rights arising from the work commissioned –including patents, design rights and copyrights – will vest in the contractor. If any of such rightscan be acquired only by registration, the contractor will have the sole and exclusive power toeffect such
registration .4.2 Unless otherwise agreed, the work commissioned does not include conducting searches for theexistence of rights, including patents, trademark rights, drawing or design rights, copyrights orportrait rights of third parties. The same applies to any investigation into the possibility of suchforms of protection for the client.
4.3 Unless the work is not suitable for that purpose, the con- tractor will at all times be entitled toimprint his name on or in or to remove it from the work (or to have his name imprinted on or in orremoved from the work), and without the contractor’s prior authorization the client may notpublish or reproduce the work without identifying the contractor by name.
4.4 Unless otherwise agreed, all design drawings, illustrations,
prototypes, scale models, templates,drafts, design sketches, films and other materials or (electronic) data files made by the contractorin the course of executing the design will remain the contractor’s property, irrespective ofwhether they were made available to the client or to third parties.
4.5 Upon completion of the work commissioned, neither the client nor the contractor will have anyobligation to retain any of the materials and data used.
5 Use and licence
5.1 Once the client has fulfilled all his obligations under the agreement with the contractor, he willacquire an exclusive licence to use the design solely for purposes of publication and reproductionas such purposes were agreed when the work was commissioned. If no such specific purposeshave been agreed, the licence will be limited to that manner of use of the design on which firmintentions existed on the date when the work was commissioned. Such intentions must havebeen verifiably stated to the contractor prior to the conclusion of the agreement.
5.2 Without prior written approval from the contractor, the cli- ent will not be entitled to any use of thedesign that is broader or different from the use agreed. In the event of broader or different use onwhich no agreement was reached, including any amendment, mutilation or infringement on theprovisional or final design, the designer will be entitled to compensation due to infringement ofhis/her rights of at least three times the agreed fee, or a fee that is reasonably and fairlyproportional to the infringement committed, without prejudice to the designer’s right to claimreimbursement of the damage actually incurred. 5.3 The client will not (or no longer) be permitted to use the results made available and any licencegranted to the client in the context of the work commissioned will lapse:a. from the moment that the client fails to fulfil his payment or other obliga- tions under theagreement or to do so in full, or is otherwise
in default, unless the default is insignificant byreference to
the overall scope of the work;b. if the work commissioned is terminated early for any reason whatsoever, unless theconse- quences are contrary to the principles of reasonableness and fairness.
5.4 The contractor may use the design at his discretion for his own publicity or promotionalpurposes, with due observance of the client’s interests.
6 Fees and additional costs
6.1 In addition to payment of the agreed fee, the contractor will be entitled to reimbursement of anycosts incurred by him in the performance of the work commissioned.3/5 General Condi- tions Loulou & Tummie V.O.F.
6.2 If the contractor is required to perform more or other
work due to late delivery or non-delivery ofcomplete, sound and clear data and/or materials, or any change or error in instructions orbriefings, such additional work will be charged separately on the basis of the contractor’s usualfees.
6.3 If the fee to be paid is in any way subject to facts or cir- cumstances to be evidenced by theclient’s accounting records, the contractor will be entitled upon receiving a statement of accountfrom the client to have the client’s accounting records audited by an accountant to be selectedby the contractor. If the results of the accountant’s audit differ more than 2% or EUR 100 fromthe client’s report and statement of account, the costs of the audit will be for the client’s account.
7.1 Payments must be made within 30 days of the invoice
date. If the contractor has not receivedpayment (or payment in full) at the end of that term, the client will be in default and will oweinterest at the statutory rate. All costs incurred by the con- tractor in connection with overduepayments, such as costs of litigation and judicial and extrajudicial costs, including the cost oflegal assistance, bailiffs and debt collection agencies, will be for the client’s account. Theextrajudicial costs will be not less than 10% of the invoice amount, with a minimum of € 150.
7.2 The contractor will have the right to invoice the client at monthly intervals for work performedand costs incurred in the performance of the work commissioned.
7.3 The client will pay the amounts due to the contractor without any reduction or set-off, save forsettlement against adjustable advance payments relating to the agreement which the client mayhave made to the contractor. The client is not entitled to suspend payment of invoices for workthat has already been performed.
8 Notice of termination and dissolution of an agreement
8.1 If the client gives notice of termination of an agreement,
he must pay, in addition to damages, thecontractor’ s fee and the costs incurred in connection with the work performed until that date.
8.2 If the agreement is terminated by the contractor on the grounds of breach by the client in theperformance of the agreement, the client will be required to pay, in addition
to damages, thecontractor’s fee and the costs incurred in connection with the work performed until that date. Inthis context any conduct by the client on the grounds of which the contractor cannot reasonablybe required to complete the work commissioned will also be regarded as breach.
8.3 The damages referred to in the preceding two paragraphs of this Article will comprise at least thecosts arising from obligations undertaken by the contractor in his own name with third parties forthe performance of the work commissioned,
as well as at least 30% of the balance of the fee thatthe client would owe the contractor if the work commissioned were fully completed.
8.4 Both the contractor and the client will have the right to ter- minate the agreement in whole or inpart with immediate effect if the other party is declared bankrupt or is granted a suspen- sion ofpayments (whether or not provisional). If the client is declared bankrupt, the designer will havethe right to terminate the right of use granted, unless the consequences would be contrary theprinciples of reasonableness and fairness.
8.5 In the event of termination by the client on the grounds
of breach in the performance of thecontractor’s obligations,
the performance already completed and the related payment obligationwill not be subject to cancellation, unless the client provides evidence that the contractor is indefault of that performance. Amounts that the contractor has invoiced before the dissolution forwork performed or delivered properly under the agreement will remain payable in full with dueobservance
of the previous sentence and will fall due immediately upon termination.
8.6 If the contractor’s work consists of recurrently performing work of a similar nature, the agreementin question will be valid for an indefinite period of time, unless otherwise agreed in writ- ing. Suchagreement may be terminated only by written notice given with due observance of a reasonablenotice period of not less than three months.
9 Warranties and indemnities
9.1 The contractor warrants that the design supplied to the cli- ent has been made by him or her or onhis or her behalf and, if the design is protected by copyright, that the contractor is the author4/5 General Conditions Loulou & Tummie V.O.F. within the meaning of the Auteurswet (Dutch Copyright Act) and as the copyright owner has thepower of disposition of the work. 9.2 The client indemnifies the contractor or persons engaged by the contractor in the performance ofthe work commissioned against any third-party claim or action arising from the applica- tion or useof the design created by the contractor or persons referred to above.
9.3 The client indemnifies the contractor against any claim
or action relating to intellectual propertyrights in materials or information supplied by the client and used in the performance of the workcommissioned.
10.1 The contractor will not be liable for:a. errors or defects in materials supplied by the client;b. misunderstandings, errors
or defects in the performance of the agreement if suchmisun- derstandings or errors were caused by acts of the client,
such as late delivery or nondeliveryof complete, sound and clear information and/or materials;c. errors or defects by third parties engaged by or on behalf of the client;d. inaccuracies in offers made by suppliers, or prices quoted by suppliers being exceeded;e. errors or defects in the design or errors in the text/ data if the client has given his approval inaccordance with the provisions of Article 2.5 or has had the opportunity to perform aninspection and has declined to do so; orf. errors or defects
in the design or errors in the text/data if the client has not had
a particularmodel or prototype prepared or a particular test performed and the errors would have beenapparent in such model, prototype or test.
10.2 The contractor will be liable only for direct damage attributable to him. Direct damage will includeonly:a. reason- able costs to assess the cause and extent of the damage,
to the extent that suchassessment concerns damage within
the meaning of these general conditions;b. any reasonable costs necessarily incurred to have the contractor’s defective performanceconform to the agreement; andc. reasonable costs incurred to prevent or limit the damage, to the extent that the clientdemonstrates that those costs led to a limitation of the direct damage referred to in thesegeneral conditions.The con- tractor’s liability for all other damage, such as indirect damage, including consequentialdamage, loss of profits, mutilated or lost data or materials, or damage due to business interruptionis hereby excluded.
10.3 Save in the event of intent or wilful recklessness by the contractor or the contractor’smanagement – therefore except for persons under their control – the contractor’s liability fordamage or loss arising from an agreement or any wrongful act committed against the client willbe limited to the amount invoiced for the portion of the work performed, less the costs incurred bythe contractor in the engagement of third parties,
on the understanding that that amount will notexceed EUR 45,000 and will in no event be higher than the benefit that the insurance companymay pay to the contractor.
10.4 Any and all liability will expire twelve months from the date of completion of the workcommissioned.
10.5 Where reasonably possible the client will be required to retain copies of materials and data he hassupplied until the work commissioned has been completed. If the client fails to do so thecontractor cannot be held liable for any damage or loss that would not have occurred if suchcopies had existed.
11 Other terms
11.1 The client will not be permitted to transfer or assign to third parties any of the rights under anagreement concluded with the contractor, save in the event and as part of a transfer of theclient’s entire business.
11.2 Both parties must keep confidential any and all facts and circumstances that come to theirknowledge in the context of the work commissioned. The same duty of confidentialityin respect5/5 General Conditions Loulou & Tummie V.O.F. of such facts and circumstances must be imposed on any third parties engaged in theperformance of the work commissioned.
11.3 The headings in these General Terms and Conditions have been included for easy reference onlyand are no part of these Terms and Conditions.
11.4 All agreements between the contractor and the client are governed by Dutch law. The court thathas the power to hear and decide any dispute between the contractor and the client will be thecourt having jurisdiction in the district where the contractor has his registered office or the courthaving jurisdic- tion pursuant to the law, at the contractor’s option.