Terms and Conditions Iris van Dijck
1 Quotation, agreement, quotation and confirmation
1.1 The general terms and conditions described hereinafter (hereinafter: General Terms and Conditions) apply to all quotations and the formation, content and performance of all agreements concluded between the client and the contractor (hereinafter: illustrator). Deviations from these General Terms and Conditions can only be agreed in writing between client and illustrator
1.2 Offers are without obligation and are valid for up to 2 months. Quotations can undergo changes due to an unforeseen change in the work. Prices are exclusive of VAT. The mentioned rates and offers do not automatically apply to future assignments. The client is responsible for the accuracy and completeness of the information provided by or on behalf of the illustrator on which the illustrator bases the quotation.
1.3 Assignments must be confirmed in writing by the client. If the client fails to do so, but nevertheless agrees that the illustrator will start to carry out the assignment, the content of the quotation will be considered as agreed and these General Terms and Conditions apply. Further verbal agreements and stipulations only bind the illustrator after they have been confirmed in writing by the illustrator.
2 Execution of the agreed assignment
2.1 The illustrator makes every effort to carry out the assignment carefully and independently, to represent the interests of the client to the best of his knowledge and to strive for a result that can be used by the client, such as a reasonable and professional illustrator can and may be expected. To the extent necessary, the illustrator will inform the client of the progress of the work.
2.2 The client does all that is reasonably necessary or desirable to enable a timely and correct agreed delivery by the illustrator, such as the timely delivery of complete, sound and clear data or materials, of which the illustrator indicates or of which the the client understands or should reasonably understand that these are necessary for the execution of the agreement.
2.3 A time limit specified by the illustrator for carrying out the assignment is an indication, unless otherwise agreed in writing.
2.4 Unless otherwise agreed, the assignment of the illustrator does not include:
a.) conducting tests, applying for permits and assessing whether the client's instructions meet legal or quality standards;
b.) conducting research into the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties;
c.) conducting research into the possibility of using the information in sub b. possible forms of protection for the client as referred to.
2.5 Prior to implementation, production, reproduction or disclosure, the parties shall 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 not a reason for rejection, discount, compensation or termination of the agreement, when these deviations, considering all circumstances, are reasonably of minor importance.
2.7 Complaints must be submitted in writing to the illustrator within ten working days after completion of the assignment, failing which the client is deemed to have fully accepted the result of the assignment.
3 Switching on / off from third parties
3.1 Unless otherwise agreed, assignments are given to third parties in the context of the execution of the assignment by or on behalf of the client. At the client's request, the illustrator can act as an agent for the client's account and risk. The parties can agree on a future compensation for this.
3.2 If the illustrator draws up a budget / quotations for third-party costs at the client's request, this budget / quotations is indicative. If desired, the illustrator can request quotes on behalf of the client.
3.3 If in the execution of the assignment the illustrator purchases goods or services from third parties according to express agreement at his own expense and risk, after which these goods or services are passed on to the client, the provisions of the General Terms and Conditions of and / or separate agreements apply. with the supplier with regard to the guarantee and liability also towards the client.
3.4 If the illustrator, 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 the illustrator.
3.5 The client does not engage third parties without consulting the illustrator if this can influence the execution of the assignment as agreed with the illustrator. In the appropriate case, the parties will discuss which other contractors will be engaged and which work should be transferred or assigned to them.
3.6 The illustrator 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 these have been introduced by the illustrator. The client must address these parties himself.
The illustrator can provide assistance with this if desired.
4 Emerging Intellectual Property Rights and Property Rights
4.1 All intellectual property rights arising from the assignment - including copyright, trademark, patent, drawing or design rights - to the results of the assignment belong to the illustrator. Insofar as such a right can only be obtained through a deposit or registration, only the illustrator is authorized to do so, unless otherwise agreed.
4.2 The parties can agree that the rights referred to in the first paragraph are wholly or partially transferred to the client. This transfer and any conditions under which the transfer takes place are always recorded in writing. Until the moment of transfer, a user right is provided as regulated in article 5 of these General Terms and Conditions.
4.3 The illustrator has the right at all times to mention or remove his / her name on, at or in publicity around the result of the assignment - in the manner customary for that result - or have it removed. The client is not permitted to publish or reproduce the result without mentioning the name of the illustrator without the prior permission of the illustrator.
4.4 Unless otherwise agreed, the (originals of) results produced by the illustrator in the context of the assignment (such as designs, design sketches, concepts, advice, reports, quotations, budgets, estimates, specifications, working drawings, illustrations, text, etc.) , photos, prototypes, (partial) products, films, (audio and video) presentations, source codes and other materials or (electronic) files, etc.) property of the illustrator, regardless of whether these have been made available to the client or third parties.
4.5 After completion of the assignment, neither the client nor the illustrator have an obligation to each other with regard to the materials and data used, unless agreed otherwise.
5 Use of the result
5.1 If the client fully complies with his obligations as a result of the agreement with the illustrator, the client obtains the right to use the result of the assignment in accordance with the agreed destination. If no agreements have been made about the destination, the right of use remains limited to that use, for which the order was (apparently) issued. The right to use is exclusive, unless otherwise specified in the agreement.
5.2 If the result also relates to works that are 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 Client does not have the right, without written permission from the illustrator, to adjust the result of the assignment, to (re) use it or to perform it in a broader or different way than agreed, or to have this done by third parties. The illustrator can attach conditions to this permission, including the payment of an equitable remuneration.
5.4 In the event of broader or other use that has not been agreed upon, including the modification, mutilation or impairment of the provisional or definitive result, the illustrator is entitled to compensation for infringement of his / her rights of at least three times the agreed fee, at least one compensation that is reasonable and fair in proportion to the infringement committed, without otherwise losing any other right.
5.5 The client is no longer allowed to use the results made available and any right of use granted to the client within the framework of the assignment is canceled, unless the consequences thereof conflict with reasonableness and fairness:
a.) from the moment that the client does not or not fully comply with his (payment) obligations under the agreement or is otherwise in default;
b.) if the assignment is prematurely being terminated, for the in article 8.1 of these terms and conditions menttioned reasons;
c.) in the event of the 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 illustrator has the freedom to use the results for own publicity, procurement, promotion, including competitions and exhibitions, etc., and to get them on loan when it comes to physical results, taking into account the interests of the client. is going.
6 Agreed fee and costs
6.1 The illustrator is entitled to a fee for carrying out the assignment. This can consist of an hourly rate, a consultancy fee, a fixed amount, whether or not related to the project sum or any other fee to be agreed between the parties.
6.2 In addition to the agreed fee, there are also costs incurred by the illustrator for the execution of the assignment, such as office, travel and accommodation costs, costs for prints, copies, (printing) tests, prototypes, and costs of third parties for consultation, production. and guidance, etc. are eligible for reimbursement. These costs are specified in advance as much as possible, unless a storage percentage has been agreed.
6.3 If, 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, the illustrator is forced to perform more or other work, these activities will be honored separately. , based on the fee rates customarily used by the illustrator. The illustrator 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 postponement.
6.4 If the execution of the assignment is delayed or interrupted by circumstances that cannot be attributed to the illustrator, the client is obliged to reimburse any costs that this entails. The illustrator will try to minimize the costs as much as possible.
7 Payment and possible suspension
7.1 All payments must be made without settlement, deduction, or suspension, within 30 days after the invoice date, unless otherwise agreed in writing or the invoice states otherwise.
7.2 All goods delivered to the client remain the property of the illustrator until all amounts owed by the client to the illustrator on the basis of the agreement concluded between the parties have been paid in full to the illustrator.
7.3 If the client is in default with the full or partial payment of the amounts due, the client owes the statutory interest and extrajudicial collection costs, which amount to at least 10% of the invoice amount with a minimum of € 150 excl. VAT.
7.4 The illustrator ensures timely invoicing. In consultation with the client, the illustrator may charge agreed fees and costs as an advance, interim or periodic.
7.5 The illustrator may suspend the execution of the assignment after the payment term has expired and the client, after being given written notice to pay within 14 days, fails to do so, or when the illustrator must understand that payment has been made by a client or behavior will be omitted.
8 Termination and cancellation of the agreement .
8.1 If the client cancels the agreement without culpable failure by the illustrator, or when the illustrator dissolves the agreement due to an attributable failure in the client's compliance with the agreement, then the client is, in addition to the fee and the costs incurred costs related to the work carried out up to then, owe compensation. Behavior of the client on the basis of which the illustrator can no longer reasonably be expected to complete the assignment, is in this context also regarded as an attributable shortcoming.
8.2 The compensation referred to in the previous paragraph comprises at least the costs ensuing from the commitments entered into by the illustrator in its own name for the fulfillment of the assignment with third parties, as well as at least 30% of the remaining part of the fee that the client upon full fulfillment of the assignment would be due.
8.3 Both the illustrator and the client have the right to immediately dissolve the agreement in whole or in part, and all amounts due become immediately due when a request for bankruptcy, (provisional) suspension of payments, or debt rescheduling is submitted with regard to the other party.
8.4 If the activities of the illustrator consist of repetitive activities of a similar nature, then this is a continuing performance contract, unless agreed otherwise in writing. This agreement can only be terminated by written cancellation with due observance of a reasonable cancellation period of at least three months, during which period the client continues to purchase the usual amount of work from the illustrator, or will compensate it financially.
9 Guarantees and indemnities on the delivered
9.1 The illustrator guarantees that the product or service provided has been designed by or on behalf of it and that, if copyright is attached to the result, it serves as a creator within the meaning of the Copyright Act and as a copyright holder can dispose of the work. Illustrator guarantees that the result of the assignment at the time of its conclusion, insofar as it knows or should reasonably know, does not infringe the rights of third parties or is otherwise unlawful.
9.2 If the client uses the results of the assignment, the client indemnifies the illustrator or third parties engaged by the designer for the assignment against all claims from third parties arising from the applications or use of the result of the assignment. This is without prejudice to the liability of illustrator vis-à-vis 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 the illustrator against claims regarding intellectual property rights on all materials and / or data provided by the client that are used in the execution of the assignment.
10 Liability and notice of default
10.1 In the event of a culpable shortcoming, Illustrator must first be given written notice of default, with a reasonable period of time to still fulfill its obligations, or to rectify any errors or to limit or eliminate damage.
10.2 Illustrator is only liable towards the client for direct damage attributable to the illustrator. Liability of the illustrator for indirect damage, including consequential damage, lost profit, lost savings, mutilated or destroyed data or materials, or damage due to business interruption is excluded.
10.3 Except in the case of intent or deliberate recklessness on the part of the illustrator, the illustrator's liability is limited to the illustrator's fee for the assignment, at least that part of the assignment to which the liability relates. This amount is not higher than € 75,000 and in any case limited at all times to a maximum of the amount that the insurer pays to the illustrator in the appropriate case. The amount for which the illustrator is liable in the relevant case is reduced by any amounts insured by the client.
10.4 Any liability expires after the lapse of two years from the time that the assignment is terminated by completion, cancellation or dissolution.
11 Other provisions
11.1 If the client wishes to give the same assignment to others than the illustrator at the same time or has already given the assignment to another person, the client will inform the illustrator, stating the names of these others.
11.2 The client is not permitted to transfer any right from an agreement concluded with the illustrator to third parties, other than in the case of the transfer of his entire company or with the written permission of the illustrator.
11.3 The parties are obliged to maintain the confidentiality of all confidential information, facts and circumstances that come to the knowledge of the other party in the context of the assignment, from each other or from another source, of which it can be reasonably understood that disclosure or communication to third parties illustrator or the client could cause damage. Third parties who are involved in the execution of the assignment will be treated with the same confidential treatment with regard to these facts and circumstances originating from the other party.
11.4 If any provision of these General Terms and Conditions is invalid or destroyed, the remaining provisions of these General Terms and Conditions will remain in full force. In that case, the parties will consult with the aim of agreeing new provisions to replace the invalid or annulled provisions, taking into account as far as possible the purpose and scope of the invalid or annulled provisions.
11.5 The inscriptions in these General Terms and Conditions serve only to improve readability and do not form part of these General Terms and Conditions.
11.6 Dutch law applies to the agreement between the illustrator and client. The parties will in the first instance attempt to resolve a dispute in mutual consultation. Unless the parties have explicitly agreed on arbitration in writing, the court competent in accordance with the law, or the court in the district where the illustrator is located, will take notice of disputes between the illustrator and client at the discretion of the illustrator.
Submitted at the Chamber of Commerce in Utrecht under reference number 68517300