Article 1. General
1.1 Definitions
In these general terms and conditions, the following definitions apply:
Client: the person who inquires about the work to be carried out by THE CRE8ION.LAB, requests a quote from THE CRE8ION.LAB, and/or requests a design to be produced.
Contractor: THE CRE8ION.LAB.
1.2 Applicability of these terms and conditions
These general terms and conditions apply to the formation, content, and fulfillment of all agreements made between the client and contractor. If either party wishes to deviate from any provision of these terms, this must be documented in writing.
1.3 Modification and location of the terms
These terms are deposited at the Chamber of Commerce in East Brabant under number 17275355. The most recently deposited version or the version that was applicable at the time of the conclusion of the agreement is always applicable.
Article 2. Agreement, quote, and confirmation
2.1 Quote
The quotes made by THE CRE8ION.LAB are valid for 30 days unless stated otherwise. Price estimates may change due to unforeseen circumstances and/or changes in the work to be done.
2.2 Written confirmation
Contractor is only bound by the quotes if acceptance by the other party is confirmed in writing within 30 days. If the client fails to do this but nonetheless agrees to the contractor commencing the execution of the assignment, the content of the quote will be deemed to be agreed upon. Further oral agreements and stipulations will only bind the contractor after they have been confirmed in writing by the contractor. Written confirmation via email is only legally valid if the receipt of the relevant email has been confirmed by the contractor.
2.3 Modification of offers
Deviations from made offers bind the contractor only if they have been confirmed in writing by the contractor.
2.4 Passing on unforeseen costs
The specified price is based on the purchase price and other cost factors. If one of these unforeseeable cost components increases after the offer but before delivery, the contractor has the right to pass on these increases in all fairness.
2.5 Value-added tax
All prices are exclusive of value-added tax (VAT), unless stated otherwise.
2.6 Multiple designers/design agencies
If the client wishes to assign the same project simultaneously to parties other than the contractor, he must inform the contractor of this, mentioning the names of the other designers/design agencies. If a client has previously assigned the same project to another designer/design agency, he must disclose which designer/design agency this was.
Article 3. Execution of the agreement
3.1 Executing the assignment
The contractor will make an effort to perform the assignment carefully and independently, to represent the client's interests to the best of its knowledge, and to strive for an optimal result. As far as possible, the contractor will keep the client informed about the progress of the work.
3.2 Work by third parties
If and insofar as a good execution of the agreement requires this, the contractor has the right to have certain work performed by third parties.
3.3 Providing data
The client is responsible for ensuring that all data, which the contractor indicates are necessary or which the client reasonably understands to be necessary for the execution of the agreement, are provided to the contractor in a timely manner. If the data necessary for the execution of the agreement are not provided to the contractor in a timely manner, the contractor has the right to suspend the execution of the agreement and/or charge the client for any extra costs arising from the delay according to the usual rates.
3.4 Requesting quotes from suppliers
If the contractor prepares a quote for costs incurred by third parties at the client's request, this quote will only have an indicative nature. The contractor accepts no liability for price deviations in quotes made by third parties.
3.5 Approval of intermediate results
If it is agreed that the agreement will be executed in phases, the contractor can suspend the execution of those components belonging to the next phase until the client has given written approval of the results of the preceding phase.
3.6 Publication and reproduction
Before proceeding to production, reproduction, or publication, the parties must give each other the opportunity to review and approve the final models, prototypes, or samples of the design. At the contractor's request, the client must confirm their approval in writing.
3.7 Delivery time
A term specified by the contractor for completing the design is indicative unless the nature or content of the agreement indicates otherwise. The contractor is only in default after the client has given notice of default by registered letter and fulfillment within the reasonable term mentioned in the notice of default has not occurred. If the parties agree that the agreement will be amended or supplemented, the completion time may be affected. The contractor will inform the client as soon as possible.
3.8 Tests, permits, and legal provisions
Conducting tests, applying for permits, and assessing whether the client's instructions comply with legal standards are not part of the contractor's assignment.
3.9 Complaints
Complaints regarding the work performed must be reported in writing to the contractor by the client within 6 working days of discovery, but no later than within 10 working days after completion of the relevant work.
3.10 Shipping costs
If the contractor sends (parts/sections of) the product to the client in any way, including but not limited to sending by mail, courier, or via electronic messaging, this shipment is at the client's expense and risk.
3.11 Change of assignment
If a client wishes to change the execution of a given assignment, the contractor is only obliged to implement this if it is reasonably still possible. In that case, the client is obliged to reimburse the contractor for costs already incurred, even if these were unnecessarily incurred for the execution of the client's wishes in its final form.
Article 4. Intellectual property rights and ownership rights
4.1 Copyright and industrial property
Unless otherwise agreed in writing between the parties, all intellectual property rights arising from the assignment - including patent rights, design rights, and copyright - belong to the contractor. If such a right can only be obtained through a deposit or registration, only the contractor is authorized to do so.
4.2 Research into the existence of rights
Unless explicitly agreed in writing, conducting research into the existence of patent rights, trademark rights, design or model rights, copyright, and portrait rights of third parties is not part of the assignment. The same applies to any research into the possibilities of such forms of protection for the client.
4.3 Attribution
Unless the work does not lend itself to this, the contractor is at all times entitled to mention or remove his/her name on or beside the work. Without prior consent, the client is not allowed to publish, disclose, or reproduce the work with attribution of the contractor's name.
4.4 Ownership at contractor
The working drawings, prototypes, models, molds, design sketches, films, and other materials or (electronic) files created by the contractor in the context of the assignment remain the property of the contractor, regardless of whether they have been handed over to the client or third parties.
Article 5. Use and license
5.1 The use
When the client fully complies with his obligations arising from the agreement with the contractor, he obtains an exclusive license to use the design to the extent that this concerns the right of publication and reproduction in accordance with the purpose agreed upon in the assignment. If no arrangements have been made regarding the purpose, the license will remain limited to that use of the design for which firm intentions existed at the time of granting the assignment. These intentions must demonstrably have been communicated to the contractor before the agreement is concluded.
5.2 Broader use
The client is not entitled to reuse the design or use it more broadly than agreed without the written consent of the contractor. For each use of the design for which no permission has been granted, the contractor is entitled to a fee of at least three times the usual fee for such use, with a minimum of € 250,-.
5.3 Changes
The client is not allowed to make changes to the preliminary or final designs without the written permission of the contractor.
5.4 Own promotion
The contractor has the freedom to use the design for his own publicity or promotion.
Article 6. Fee
6.1 Fee and additional costs
In addition to the agreed fee, the costs that the contractor incurs for the execution of the assignment are also eligible for reimbursement.
6.2 Fee for additional work
If the contractor is forced to perform more or different work due to the late or failure to provide complete, adequate, and clear data/materials or due to a changed or incorrect assignment or briefing, this work will be compensated separately based on the rates usually applied by the contractor.
Article 7. Payment
7.1 Payment obligation
Payments must be made within 30 days of the invoice date. If no (full) payment has been received by the contractor after this period has expired, the client is in default and owes interest equal to the statutory interest, without prejudice to the right to demand immediate and full payment. All costs incurred by the contractor, such as legal costs, costs of legal assistance, including amounts not awarded by the court, extrajudicial and judicial collection costs incurred in connection with late payments, are borne by the client, except for court costs and legal assistance costs if the contractor is deemed the losing party in the costs. The extrajudicial costs are set at a minimum of 10% of the invoice amount with a minimum of € 100,-.
7.2 Periodic payments
The contractor has the right to charge his fee monthly for services rendered and costs incurred in relation to the execution of the assignment.
7.3 No discount or compensation
The client makes payments owed to the contractor without discount or compensation, except for offsets with recoverable advances related to the agreement that he has provided to the contractor.
7.4 Lapsed license
From the moment the client fails to fulfill his payment obligations under the agreement (fully) or otherwise defaults, the client is not (longer) allowed to use the results made available to him and any license granted to the client in the context of the assignment expires.
7.5 Claims upon bankruptcy
In the event of liquidation, bankruptcy, or suspension of payment of the client, the claims of the contractor and the obligations of the client towards the contractor will become immediately due and payable.
7.6 Nature of payments made
Payments made by the client always serve first to settle all accrued interest and costs, secondly to the outstanding invoices that have been outstanding the longest, even if the client states that the payment relates to a later invoice.
Article 8. Termination and cancellation of agreement
8.1 Termination of the agreement by the client
When the client terminates an agreement, he must, in addition to compensation, pay the fee and the costs incurred regarding the work performed up to that point.
8.2 Cancellation of the agreement by the contractor
If the agreement is canceled by the contractor due to an attributable shortcoming in the fulfillment of the agreement by the client, the client must, in addition to compensation, pay the fee and costs incurred regarding the work performed up to that point. Behavior of the client on the basis of which the contractor can reasonably no longer be expected to complete the assignment will also be regarded as an attributable shortcoming in this context.
8.3 Compensation
The compensation referred to in the previous two paragraphs of this article will at least include the costs incurred by the contractor in his own name for fulfilling the assignment entered into with third parties, as well as 25% of the remaining part of the fee which the client would owe in the case of full completion of the assignment.
8.4 Bankruptcy
Both the contractor and the client have the right to immediately cancel the agreement in whole or in part in the event of bankruptcy or suspension of payment of the other party.
8.5 Use of results after premature termination
If the assignment is terminated prematurely for any reason, the client is not (longer) allowed to use the designs made available to him and any license granted to the client in the context of the assignment expires.
8.6 Continuous agreements
When the contractor's work consists of performing similar work repeatedly, the applicable agreement, unless otherwise agreed in writing, will apply for an indefinite period. This agreement can only be terminated by written notice, observing a reasonable notice period of at least three months.
8.7 Revocation of the offer
To the extent that the client has accepted offers fully and unconditionally, the contractor may revoke them within a period of 2 days after acceptance.
8.8 Transfer to third parties
Neither the contractor nor the client is entitled to transfer their rights or obligations arising from concluded agreements to a third party without prior written consent from the other.
Article 9. Guarantees and indemnities
9.1 Author rights holder
The contractor guarantees that the delivered work has been designed by him/her or on his/her behalf and that, if copyright applies to the design, he/she is regarded as the creator in the sense of the Copyright Act and can dispose of the work as the copyright holder.
9.2 Indemnification for claims regarding the use of the design
The client indemnifies the contractor or those engaged by the contractor for all claims from third parties arising from the applications or use of the result of the assignment.
9.3 Provided materials and data
The client indemnifies the contractor for claims regarding intellectual property rights on materials and data provided and/or indicated by the client, which are used in the execution of the assignment.
Article 10. Liability
10.1 Liability
The contractor cannot be held liable for:
- errors in the material provided by the client;
- misunderstandings or errors regarding the implementation of the agreement if these arise from actions of the client, such as not providing complete, adequate, and clear data/materials in a timely manner;
- errors by third parties engaged at the client's request;
- deficiencies in quotes from suppliers or exceeding price estimates from suppliers;
- errors in the design or text/data if the client has provided approval according to the provisions of Article 3.6, or has been given the opportunity to conduct a review and has indicated that such a review is not needed;
- errors or problems that arise after delivery and are caused by use or maintenance of the product by others than the contractor;
- damage due to loss of profit, work stoppage, loss of business and/or other data (files), or any other business damage or financial loss possibly related to the use of the products delivered by the contractor.
10.2 Limitation of liability
If the contractor is liable, that liability is limited as follows:
- the liability of the contractor, to the extent that it is covered by its liability insurance, is limited to the amount paid out by the insurer;
- if the insurer does not make a payout in any case or damage is not covered by insurance, the liability of the contractor is limited to twice the invoice value of the assignment, at least that part of the assignment to which the liability applies;
- notwithstanding what is provided above in paragraph 1 of this article, in the case of an assignment with a duration longer than six months, the liability is further limited to the fee due for the last six months;
- the limitations of liability included in these terms do not apply if the damage is due to intent or gross negligence of the contractor or its subordinates;
- the contractor is never liable for consequential damage.
10.3 Expiration of liability
All liability expires after one year from the moment the assignment is completed.
10.4 Copies of materials
The client is obliged, if reasonably possible, to keep copies of materials and data provided by him until the assignment is fulfilled. If the client fails to do this, the contractor cannot be held liable for damage that would not have occurred in the presence of these copies.
10.5 Retention obligation
After the assignment is completed, neither the client nor the contractor has a retention obligation regarding the used materials, data, and results, unless otherwise agreed.
10.6 Warranty
The contractor provides no further warranty, either directly or indirectly, regarding its services and/or goods.
10.7 Claims from third parties
The client will indemnify the contractor for all possible claims from third parties regarding the services and/or (parts/sections of) products and results delivered by the contractor to the client.
Article 11. Modification of the terms
11.1 Modification and supplementation
The contractor reserves the right to modify or supplement these general delivery terms.
11.2 Already concluded agreements
Changes do not apply to already concluded agreements.
Article 12. Other provisions
12.1 Transfer to third parties
The client is not allowed to transfer any rights obtained from an agreement with the contractor to third parties, other than by transferring his entire business.
12.2 Confidentiality
Both parties are obliged to treat facts and circumstances that come to the knowledge of the other party in the context of the assignment confidentially. Third parties involved in the execution of the assignment will also be bound to the same confidential treatment of these facts and circumstances originating from the other party.
12.3 Headings
The headings in these general terms and conditions are only intended to enhance readability and do not form part of these terms.
12.4 Dutch law
Dutch law applies to the agreement between the contractor and client. The court having jurisdiction to hear disputes between the contractor and the client is the competent court in the district where the contractor is located.