General Terms and Conditions for graphic and 3D visualization assignments

1 Agreement, quotation and confirmation

1.1 These general terms and conditions (hereinafter: General Terms and Conditions) apply to all quotations and the formation, content and fulfilment of all agreements concluded between the client (hereinafter: Client) and the contractor (hereinafter: Designer). Deviations from these General Terms and Conditions can only be agreed in writing between Client and Designer.

1.2 Quotations are without obligation and are valid for 2 (two) months. Quotations may be subject to change due to an unforeseen change in the work. Prices are exclusive of VAT. The rates and offers stated in the quotation or other quotations do not automatically apply to future orders. The Client guarantees the correctness and completeness of the data provided by or on behalf of him/her to the Designer on which the Designer bases the quotation.

1.3 Assignments are confirmed in writing by the Client. If the Client fails to do so, but nevertheless agrees that the Designer commences the execution of the assignment, the contents of the quotation shall be deemed to have been agreed and these General Terms and Conditions shall apply. Further verbal agreements and stipulations shall only bind the Designer after they have been confirmed in writing by the Designer.

2 The execution of the agreement

2.1 The Designer shall make every effort to carry out the assignment carefully and independently, to promote the interests of the Client to the best of his or her knowledge and to strive for a result that is useful to the Client, as can and may be expected of a reasonable and professional Designer. To the extent necessary, the Designer shall keep the Client informed of the progress of the work.

2.2 The Client shall do everything that is reasonably necessary and/or desirable to enable timely and correct delivery by the Designer, such as the timely delivery of complete, sound and clear data and/or materials.

2.3 Any term specified by the Designer for the execution of the assignment is indicative, unless otherwise agreed in writing.

2.4 Unless otherwise agreed, the following do not form part of the Designer's assignment:

a. conducting tests, applying for permits and assessing whether the Client's instructions comply with legal or quality standards;

b. conducting research into the existence of rights, including patent rights, trademark rights, design rights, copyrights or portrait rights of third parties;

c. conducting research into the possibility of the possible forms of protection referred to in sub b. for the Client.

2.5 Before proceeding with implementation, production, reproduction or publication, the parties shall give each other the opportunity to check and approve the final models, prototypes or samples of the result.

2.6 Deviations in the (final) result compared to what was agreed are not grounds for rejection, discount, compensation or termination of the agreement, if these deviations, taking all circumstances into account, are reasonably of minor importance.

2.7 Complaints must be communicated to the Designer in writing as soon as possible, but in any case 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 Engaging third parties

3.1 Unless otherwise agreed, assignments to third parties in the context of the execution of the assignment are issued by or on behalf of the Client. At the request of the Client, the Designer may act as an authorized representative at the expense and risk of the Client. The parties may agree on a fee to be agreed upon for this.

3.2 When the Designer draws up an estimate for third-party costs at the request of the Client, this estimate is indicative. If desired, the Designer may request quotations on behalf of the Client.

3.3 If, in the execution of the assignment, the Designer, in accordance with an express agreement with the Client, purchases goods or services from third parties for its own account and risk, after which these goods or services are (re)delivered or resold to the Client, the provisions of the general terms and conditions of and/or separate agreements with the supplier also apply to the Client. The Designer shall enable the Client to take note of the general terms and conditions of and/or separate agreements with the supplier.

3.4 If the Designer, whether or not in the name of the Client, issues orders or instructions to production companies or other third parties, the Client will, at the request of the Designer, confirm in writing the approval referred to in Article 2.5 of these General Terms and Conditions.

3.5 The Client shall not engage third parties without consulting the Designer if this could affect the execution of the assignment as agreed with the Designer. In such cases, the parties shall consult with each other as to which third parties shall be engaged and which activities shall be assigned to them.

3.6 The Designer 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 were introduced by the Designer. The Client must contact these parties themselves. The Designer can provide assistance in this regard if desired.

4 Intellectual property rights and proprietary rights

4.1 All intellectual property rights to the results resulting from the assignment shall belong to the Designer. Insofar as such a right can only be obtained by means of a deposit or registration, only the Designer shall be authorised to do so, unless otherwise agreed. The term 'intellectual property rights' shall expressly be understood to mean: copyrights, database rights, neighbouring rights, trademark rights, model rights, patents, domain name rights, know-how, trade knowledge, trade secrets and all similar rights, wherever in the world they may have arisen, whether or not they may be registered and including applications therefor.

4.2 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 will always be recorded in writing. Until the moment of transfer and payment of the agreed fee, a right of use will be granted as regulated in article 5 of these General Terms and Conditions.

4.3 The Designer shall at all times have the right to (have) his/her name mentioned or removed on, with or in publicity surrounding the result of the assignment – in the manner customary for that result. The Client shall not be permitted to publish or reproduce the result without mentioning the name of the Designer without the prior consent of the Designer.

4.4 Unless otherwise agreed, the (originals of the) results (such as designs, design sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photographs, prototypes, models, moulds, (partial) products, films, (audio and video) presentations, source codes, source files and other materials or (electronic) files, etc.) created by the Designer in the context of the assignment shall remain the property of the Designer, regardless of whether they have been made available to the Client or to third parties. The parties may agree on a compensation to be agreed upon for the transfer of the aforementioned results.

4.5 After completion of the assignment, the Client and the Designer have no obligation to retain the (originals of the) results created by the Designer as referred to in 4.4, unless otherwise agreed.

5 Use of the result

5.1 When the Client fully complies with his/her obligations arising from the agreement with the Designer, he/she obtains the right to use (license) the result of the assignment in accordance with the intended purpose. If no agreements have been made about the intended purpose, the right of use remains limited to the use for which the assignment was (apparently) issued. The right of use is exclusive, unless otherwise follows from the nature of the agreement or otherwise agreed.

5.2 If the result also relates to works that are subject to third-party rights, the parties will make additional agreements on how the use of these works will be regulated.

5.3 The Client shall not have the right to modify the result of the assignment, to use it more extensively or in a different manner than agreed, or to have third parties do so, without written permission. The Designer may attach conditions to this permission, including the payment of an additional fee.

5.4 In the event of broader or different use not agreed upon, including modification, mutilation or impairment of the provisional or final result, the Designer is entitled to compensation for infringement of his/her rights of at least three times the agreed fee, or at least compensation that is in proportion to the infringement committed, without losing any other right.

5.5 Without the prior consent of the Designer, the Client is 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 shall lapse, unless the consequences thereof are contrary to reasonableness and fairness: a. from the moment that the Client fails to meet or fails to fully meet 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 The Designer shall be free, taking into account the interests of the Client, to use the results for his own publicity, acquisition of assignments, promotion, including use on the internet, websites and social media, competitions and exhibitions, etc., and to obtain them on loan, when physical results are involved.

6 Fees and costs

6.1 The Designer 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 incurred by the Designer for the execution of the assignment, such as office, travel and accommodation expenses, costs for prints, copies, (proof) proofs, prototypes, and costs of third parties for advice, production and guidance, etc., are also eligible for reimbursement. These costs are specified in advance as much as possible, except when a surcharge percentage is agreed.

6.3 If the Designer is forced to perform more or other work due to the untimely or non-delivery of complete, sound and clear data/materials, due to a changed or incorrect order or briefing, or due to external circumstances, this work will be remunerated separately, based on the usual fee rates charged by the Designer. The Designer will inform the Client of this in advance, unless this is not possible due to circumstances or the nature of the work does not allow for postponement.

7 Payment and suspension

7.1 The Designer shall ensure timely invoicing. In consultation with the Client, the Designer may charge the agreed fee and costs as an advance, interim or periodic.

7.2 All payments must be made without deduction, settlement or suspension, within 30 days after the invoice date, unless otherwise agreed in writing or the invoice states otherwise.

7.3 All items delivered to the Client shall remain the property of the Designer until all amounts owed by the Client to the Designer under the agreement concluded between the parties have been paid in full to the Designer.

7.4 If the Client is in default with the full or partial payment of the amounts due, the Client shall owe statutory interest and extrajudicial collection costs, which shall amount to at least 10% of the invoice amount with a minimum of € 150 excluding VAT.

7.5 The Designer may suspend the execution of the assignment after the payment term has expired and the Client fails to pay within 14 days after having been reminded in writing to do so, or if the Designer must understand from a statement or conduct of the Client that payment will not be made.

8 Attributable failure, termination and dissolution of the agreement

8.1 In the event of an attributable shortcoming, the parties shall first give each other written notice of default and, taking into account a reasonable period of time, enable the other party to still fulfil its obligations, or to correct any errors or to limit or eliminate damage. The notice of default must contain a description of the shortcoming that is as detailed as possible.

8.2 If the Client terminates the agreement (prematurely) without there being an attributable shortcoming by the Designer, or if the Designer terminates the agreement due to an attributable shortcoming in the performance of the agreement by the Client, the Client shall owe damages in addition to the fee and the costs incurred in relation to the work performed up to that point. Conduct by the Client on the basis of which the Designer can no longer reasonably be expected to complete the assignment shall also be considered as 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 the Designer in his own name with third parties for the fulfilment of the assignment, as well as 30 (thirty) % of the remaining part of the fee that the Client would owe upon full completion of the assignment.

8.4 Both the Designer and the Client have the right to immediately terminate the agreement in whole or in part, and all amounts due shall become immediately due and payable, if a petition for bankruptcy, (provisional) suspension of payments or debt restructuring is filed with respect to the other party, or if the other party dies.

8.5 If the Designer's work consists of repeatedly performing similar work, this constitutes a long-term agreement, unless otherwise agreed in writing. This agreement may 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 the Designer, or will financially compensate the Designer for the lost turnover and costs incurred.

9 Warranties and Indemnities

9.1 The Designer guarantees that the delivered work has been designed by or on behalf of him/her and that, if the result is protected by copyright, he/she is considered the creator within the meaning of the Copyright Act and can dispose of the work as the copyright holder. The Designer guarantees that the result of the assignment at the time of its creation, as far as he/she knows or reasonably should know, does not infringe the rights of third parties or is otherwise unlawful.

9.2 The Client shall indemnify the Designer, or third parties engaged by the Designer in the assignment, against all claims from third parties arising from the applications or use of the results of the assignment. This shall not affect the liability of the Designer towards the Client for non-compliance with the guarantees 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 shall indemnify the Designer against claims relating to intellectual property rights on all materials and/or data provided by the Client, which are used in the execution of the assignment.

10 Liability

10.1 The Designer shall only be liable for direct damage suffered by the Client that is the direct and exclusive result of a shortcoming attributable to the Designer in the execution of the assignment. The Designer shall not be liable for consequential and indirect damage, including but not limited to lost profits, lost savings, damage to image, mutilated or lost data or materials, or damage due to business stagnation.

10.2 Except in the case of intent or deliberate recklessness on the part of the Designer, the total liability of the Designer is limited to the Designer's fee for the assignment, or at least that part of the assignment to which the liability relates. This amount shall not exceed € 75,000 and shall in any case at all times be limited to a maximum of the amount that the insurer pays to the Designer in the event in question. The amount for which the Designer is liable in the event in question shall be reduced by any sums insured by the Client.

10.3 Any liability shall lapse after two years from the moment the assignment has ended by completion, cancellation or dissolution.

11  Privacy 

If the Designer, in the context of the services to be provided, must process personal data of (customers of) the Client, the Designer will be regarded as the 'processor' and the Client as the 'controller' within the meaning of the General Data Protection Regulation (GDPR) and a processing agreement will be concluded.

12 Force Majeure

12.1 If one of the parties fails to fulfil its obligations, but this cannot be attributed to him/her (force majeure), that party shall not be liable and the fulfilment of that obligation shall be suspended for the duration of the force majeure situation.

12.2 Force majeure includes (but is not limited to) weather conditions, fire, strike, illness, pandemic, epidemic, (war) violence, hacks, cyber attacks or other technical failures and circumstances resulting from these, such as government interventions including quarantine measures, which reasonably prevent one of the parties from fulfilling their obligations and which lead to delays, as well as delays or shortcomings at suppliers and/or other third parties involved in the performance 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, referring to the necessary evidence/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, to the extent that the force majeure situation justifies this.

12.5 In the event of force majeure, the Designer shall be entitled to that portion of the fee for the work performed by him/her and to reimbursement of the costs already incurred by the Designer or which are unavoidable, for example in connection with orders and assignments already placed with third parties which can no longer be cancelled without liability for damages.

13 Other provisions

13.1 If the Client wishes to simultaneously issue the same assignment to parties other than the Designer or has already previously issued the assignment to someone else, he/she will inform the Designer of this in advance.

13.2 The Client is not permitted to transfer any right arising from an agreement concluded with the Designer to third parties, other than in the event of transfer of his/her entire company or with the prior written consent of the Designer.

13.3 Parties are obliged to maintain 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 other sources, of which it can reasonably be understood that disclosure or communication to third parties could cause damage to the Designer or the Client. Parties will bind their employees or third parties involved in the execution of the assignment to the same confidentiality obligation with regard to these facts and circumstances originating from the other party.

13.4 If any provision of these General Terms and Conditions is 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 each other with the aim of agreeing on new provisions to replace the void or annulled provisions, whereby the purpose and scope of the void or annulled provisions will be taken into account as much as possible.

13.5 The headings in these General Terms and Conditions are for ease of reference only and do not form part of these General Terms and Conditions.

13.6 These General Terms and Conditions may be amended at any time. The Designer will inform the Client thereof.

13.7 The agreement between the Designer and the Client is governed by Dutch law. The parties will initially attempt to resolve a dispute by mutual agreement. Unless the parties have expressly agreed in writing to arbitration, the competent court according to the law, or the court in the district where the Designer is established, at the Designer's discretion, will take cognizance of disputes between the Designer and the Client.

1 Additional provisions regarding interior design and architecture assignments

1.1 If the client is a consumer, the following applies by way of exception:

a. art. 7.1: The client retains the right to suspension;

b. art. 7.3: The extrajudicial collection costs are only due after the designer has first sent a reminder after the first payment term has expired with a second payment term of 14 days, in which the legally permitted maximum compensation for collection costs is stated, as determined in and calculated in accordance with the Decree on compensation for extrajudicial collection costs, with a minimum of € 40.

c. art. 8.1: In the event of termination by the client for a reason without any culpable failure on the part of the designer, the fee and costs incurred are due, but no compensation is due to the designer.

d. art. 11.6: If no arbitration has been agreed, only the court designated by law shall have jurisdiction.

1.2 The parties agree, if applicable and in deviation from art. 2.4 sub a, that the designer is responsible for applying for the building permits required for the execution of the Example additional conditions for interior design and architecture assignments (incl. consumers) agreed upon work and for assessing whether the client's instructions comply with the applicable Building Decree.

1.3 In addition to Article 5.6, the client shall reasonably cooperate in the creation of (visual) material that the designer may use for its own promotion and publicity on the basis of this provision.

1.4 In addition to art. 11.6, the parties agree that disputes arising from the agreement will be settled by arbitration, to the exclusion of the ordinary courts, in accordance with the arbitration rules of the Council of Arbitration for the Construction Industry, as in force on the day on which the dispute is brought before it. Notwithstanding the previous sentence, a party is free to bring a dispute that falls within the jurisdiction of the court, subdistrict sector, before this court.

March 2021 Filed with the Chamber of Commerce by the BNO.