Terms and Conditions
HAKA-design / October 2013
1 Agreement, offer and confirmation
These General Terms and Conditions (“General Terms and Conditions”) govern all offers and the preparation, content and performance of all agreements
concluded between the client and the contractor (the “Designer”). Deviations from these General Terms and Conditions may be agreed on between the client and the Designer only in writing.
All offers are without commitment and are valid for two months. Prices quoted may be subject to change
to unforeseen changes in the work. Prices are exclusive of VAT. The
rates and offers quoted
not automatically apply to future commissions.
warrants that the information provided to
by it or on its behalf
and on which the
Designer bases the offer is correct and complete.
confirmed in writing
by the client. If the client fails to do so
but consents to
commencing the work commissioned, the terms of the offer
have been agreed
on and these General Terms and Conditions apply. Any subsequent oral
agreements and stipulations
not binding on the
he has confirmed them in
Performance of the agreement
must make every effort to perform the work commissioned carefully and
independently, to promote the client’s interests to the best
ability and to
achieve a result that is useful to the client, as can and may be expected of a reasonably and
professionally acting designer. To the extent necessary the
must keep the client
of the progress of the work.
The client must do any and all things that are reasonably necessary or required to enable the
to deliver punctually and properly,
supplying (or causing the supply of)
complete, sound and clear data or materials in a timely manner
of which the Designer states
or of which the client understands or should reasonably understand that they are necessary
for the performance of the agreement.
approximations only, unless
otherwise agreed in writing.
Unless otherwise agreed, the
following do not form part of the
for permits and assessing
whether the client’s instructions
comply with statutory or quality
investigating any existing rights, including patents, trademarks, drawing or design rights
or portrait rights of third parties; and
of the forms of protection
(b) for the Client.
other the opportunity to check and approve the final draft, prototypes
or galley proofs of the
Differences between the (final) result and the agreements made
cannot serve as
rejection, discount, damages or dissolution of the agreement
if those differences are
of minor importance, taking all
the circumstances into account.
with the Designer
in writing at the earliest possible
time but no
later than ten business days after completion of the work commissioned, failing which the
deemed to have accepted the
result of the
work commissioned in its entirety.
Engagement of third parties
Unless otherwise agreed, instructions to third parties in the context of
the performance of
given by or on behalf of the client. At the client’s request the
may act as an agent for the client’s account and risk. The parties may agree on a
fee for such
provides an estimate of third-party costs at the client’s request,
an approximation only. If required, the
on the client’s behalf.
procures goods or services from third parties in the performance of the work
commissioned, for the
Designer’s own account and risk and on the basis of an express
whereby those goods or services are passed on to the client,
and/or any separate agreements made with that
supplier with regard to
also apply to the client.
If the Designer gives
or instructions to production companies or ot
parties in the client’s name or otherwise, the
client will confirm in writing at the Designer’s
request the approval referred to in Article 2.5 of these General
The client may not engage any third parties without consultation with the Designer
may influence the performance of the
as agreed on with the Designer.
The Parties will consult, if necessary, as to which other contractors will be engaged and
which work will be assigned to them.
The Designer is not liable for any errors or defects of products or services of third parties
engaged by or on
behalf of the client, irrespective of whether they have been introduced by
the Designer. The client itself must hold those parties accountable. The Designer may assist
in that regard if necessary.
Intellectual and o
ther property rights
All intellectual property rights arising from the work commissioned, including patents,
trademarks, drawing or design rights
and copyrights, in respect of the results of the
any of such rights can be acquired only
by means of
will have the sole and exclusive
power to effect
that application or
registration, unless otherwise agreed.
parties may agree that the rights referred to in paragraph 1 are transferred in whole or in
part to the client. Such transfer and the conditions, if any, on which the transfer takes place
must always be recorded in writing. Until the moment of transfer, a
right of use is granted as
regulated in Article 5 of these General Terms and Conditions.
is entitled at any time
to imprint his name on or in, or to remove it from,
result of the
(or publicity related thereto)
or to have
his name imprinted
on or in, or removed from,
result of the
in a manner that is
customary for that result. Without the
the client may not publish or
without identifying the
Unless otherwise agreed,
results (such as designs, design sketches, drafts,
advice, reports, budgets, estimates, specifications,
design drawings, illustrations,
prototypes, scale models, templates, prototypes, products and partial
audio and video or other presentations, source codes
and other materials or
(electronic) data files
made by the
as part of the
Designer’s property, irrespective of whether they
made available to the client
or to third parties.
On completion of the
work commissioned, neither the client nor the
custodian duty in respect of
any of the materials and data used, unless otherwise
of the result
Once the client has fulfilled all his obligations under the agreement with the
to use the
result of the
in accordance with the agreed
purpose. If no such specific purpose has
right of use is
limited to that
use of the design
for which the
was (manifestly) given. The right of use is
exclusive, unless otherwise apparent from the nature of the agreement or otherwise agreed.
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 those works will be regulated.
Designer’s prior written consent, the client
not entitled to
change the result of
reuse it in a
different manner than agreed,
to do so. The Designer may make that consent subject to conditions,
including payment of a reasonable fee.
In the event of broader or different use on which no agreement was reached,
modification, mutilation or infringement on the provisional or final
entitled to compensation
on the grounds of
infringement of his/her rights of at least three
times the agreed fee, or a fee that is reasonably proportional to the infringement committed,
losing any other rights.
not (or no longer) permitted to
use the results made available,
granted to the client in the context of the work commissioned will lapse, unless the
consequences conflict with the rules of reasonableness and fairness:
the moment that the client fails to
perform or to fully perform
his payment or
obligations under the agreement, or is otherwise in default;
if the work commissioned is terminated
for the reasons referred to in Article
8.1 of these General Terms and Conditions; or
if the client is declared bankrupt, unless the
rights in question have been transferred to
the client in accordance with Article
4.2 of These General Terms and Conditions.
With due observance of the client’s interests, the
may use the
at his discretion for his own publicity, to
competitions and exhibitions,
etc., and to obtain them on loan, if physical results are
Fees and additional costs
Designer is entitled to a fee for the performance of the work commissioned. That fee may consist
of an hourly rate, a consultancy fee, a fixed amount, whether or not related to
the project sum, or any other fee agreed on between the parties.
In addition to payment of the agreed fee, the
entitled to reimbursement of any
costs incurred by him in the performance of the work commissioned, such as
overheads, travel and accommodation expenses, costs of prints, copies,
(galley) proofs and
and costs of third parties related to advice, production, supervision,
costs must be itemised beforehand to the extent possible, unless a
is required to perform more or other work due to late delivery or non-delivery
of complete, sound and clear
and/or materials, any change or error in
instructions or briefings,
or any external circumstances,
such additional work
separately on the basis of the
Designer’s usual fees.
The Designer will
inform the client
beforehand, unless that is impossible
due to circumstances or the nature of the
work does not allow any delay.
If the performance of the work commissioned is delayed or interrupted due to circumstances
beyond the Designer’s control, the costs involved, if any, are payable by the client. The
Designer must attempt to limit those costs to the extent possible.
All payments must be made
without any deduction, set-off or suspension
within 30 days of
the invoice date, unless otherwise agreed in writing or stated in the invoice.
All goods delivered to the client remain the Designer’s property until all the amounts that the
client owes the Designer under the agreement concluded between the parties have been
paid to the Designer.
fails to pay all or part of the amoun
owes statutory interest and
costs of collection, amounting to at least
10% of the invoice amount,
€150, excluding VAT.
must arrange for timely invoicing. In consultation with the client the Designer
may charge the agreed fee and costs as an advance, in the interim or periodically.
The Designer may suspend the performance of the work commissioned after the term for
payment has expired and the client, after a written demand
payment within 14 days,
fails to make that payment,
or if the Designer is forced to conclude on the grounds of
statement or act
on the part of
the client that payment will not be made.
Notice of termination and dissolution of
If the client gives notice of termination of
without any breach on the part of
the Designer, or if the Designer dissolves
on the grounds of breach by the
client in the performance of the agreement, the client
damages in addition to
Designer’s fee and the costs incurred in connection with the work performed until that
In this context any conduct by the client on the grounds of which the
reasonably be required to complete the work commissioned
also regarded as breach.
The damages referred to in the preceding
of this Article
at least the costs
arising from obligations undertaken by the
in his own name with third parties for
the performance of the work commissioned, as well as at least 30% of the balance of the fee
that the client would owe the
if the work commissioned were completed
and the client have the right to terminate the agreement in whole or in
and all amounts due are payable immediately,
if a petition in
bankruptcy or a petition for a suspension or provisional suspension of payment or
the debt rescheduling arrangement is filed in respect of the other party.
Designer’s work consists of recurrently performing work of a similar nature,
performance agreement is involved, unless otherwise agreed in writing.
agreement may be terminated only by written notice given
period of no
less than three months,
during which period the client
must continue to
purchase the customary amount of work from the Designer or must provide financial
Warranties and indemnities
warrants that the
by him or her or on his or her
behalf and, if the
is copyright-protected, that the
is the author within the
meaning of the
(Dutch Copyright Act) and as the copyright owner has power of
disposition of the work.
The Designer warrants that, as far as he/she knows or reasonably
ought to know, the result of the work commissioned does not infringe any third-party rights
and is not otherwise unlawful.
If the client
uses the results
of the work commissioned, it
persons engaged by the
in the performance of the work commissioned against any
arising from the application or use of the
result of the
This is without prejudice to the Designer’s liability towards the client for failure to comply
with the warranties referred to in the preceding paragraph and any other liability as referred
to in Article 10 of these General Terms and Conditions.
The client indemnifies the
against any claim or action relating to intellectual
property rights in materials or information supplied by the client and used in the
performance of the work commissioned.
In the event of breach, the Designer must first be given written notice of default, setting a
reasonable term in which
to perform his/her obligations,
any errors or to limit or
reverse the loss.
towards the client
only for direct damage attributable to
Designer’s liability for indirect damage, including consequential damage, loss of profits,
mutilated or lost data or materials, or damage due to business interruption is
in the event of intent or wilful recklessness
on the part of
that he or she charged
for the work commissioned, or in any
event the part of the work commissioned to which the liability relates. That amount
in no event be higher than the benefit
paid to the Designer
the insurance company
in the case in question.
The amount for which the Designer is liable
in the case in question
reduced by any sums insured by the client.
Any and all liability expires
from the date
on which the work commissioned has
ended on the grounds of completion, termination or dissolution.
If the client wishes to
commission the work
at the same time to parties other than the
or has previously already
commissioned the work
to another party, it must inform
the Designer accordingly, stating the names of those third parties.
not permitted to transfer or assign to third parties any of the rights under an
agreement concluded with the
in the event
of the client’s
business or with the Designer’s written consent.
Both parties must keep confidential any and all
circumstances that come to their knowledge in the context of the work commissioned, from
each other or from any other source, of which they can reasonably understand that their
publication or disclosure
to third parties might damage the Designer or the client.
duty of confidentiality in respect of such facts and circumstances must be imposed on any
third parties engaged in the performance of the work commissioned.
If any provision of these General Terms and Conditions is void or voided, the other
provisions of these General Terms of Conditions continue to apply in full. In that case the
parties will consult in order to agree on new provisions to replace the void or voided
provisions that are as closely as possible in keeping with the purpose and scope of the void
or voided provisions.
these General Terms and Conditions have been included for easy
part of these
Terms and Conditions.
All agreements between the
and the client are governed by Dutch law.
will first attempt to settle any dispute that arises in consultation. Unless the parties have
expressly agreed in writing on arbitration, the court that has jurisdiction by law or the court
in the district in which the Designer has its registered office has jurisdiction to hear and
disputes between the Designer and the client.
HAKA-design / October 2013