Terms and conditions
1. Agreement, quotation and confirmation
a. These general terms and conditions apply, with the exclusion of purchasing or other terms and conditions of the client, to the formation, content and performance of all agreements concluded between the client and Ambasco (hereinafter referred to as: the design agency).
b. Offers are without obligation and are valid for 2 months. Quotations can be changed due to an unforeseen change in the work. Prices are exclusive of VAT and other government levies. The rates and offers mentioned do not automatically apply to future assignments.
c. Orders must be confirmed in writing by the client. If the client fails to do so, but nevertheless agrees that the design agency will start to execute the assignment, the content of the offer will count as agreed. Further verbal agreements and stipulations are only binding on the design agency after these have been confirmed in writing by the design agency.
d. If the client wishes to issue the same assignment to others than this design agency at the same time, or if the client has previously given the assignment to another, the client must inform the design agency, stating the names of these others.
2. The execution of the agreement
a. The design agency will endeavor to carry out the assignment carefully and independently, to represent the interests of the client to the best of its ability and to strive for a useful result for the client. To the extent necessary, the design agency will keep the client informed of the progress of the work.
b. The client is obliged to do everything that is reasonably necessary or desirable to enable timely and correct delivery by the design agency, in particular by the timely delivery (or having it delivered) of complete, sound and clear data or materials.
c. A period specified by the design agency for the completion of the design has an indicative purpose, unless the nature or content of the agreement shows otherwise.
d. Unless otherwise agreed, performing tests, applying for permits and assessing whether the client’s instructions comply with legal or quality standards are not part of the design agency’s assignment.
e. Before production, reproduction or publication takes place, parties must give each other the opportunity to check and approve the latest models, prototypes or proofs of the design. If the design agency, whether or not in the name of the client, will give orders or instructions to production companies or other third parties, the client must confirm its aforementioned approval in writing at the request of the design agency.
f. Complaints must be communicated in writing to the design agency as soon as possible, but in any case within 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
a. Unless otherwise agreed, assignments to third parties, in the context of the realization of the design, are issued by or on behalf of the client. At the request of the client, the design agency can act as agent at the expense and risk of the client. Parties can agree on a fee to be agreed upon for this..
b. If the design agency draws up a budget for third-party costs at the request of the client, this budget will only have an indicative purpose. If desired, the design agency can request quotes on behalf of the client.
c. If, during the execution of the assignment, the design agency purchases goods or services from third parties at its own expense and risk, at its own expense and risk, after which these goods or services are passed on to the client, the provisions of the supplier’s general terms and conditions with regard to the the quality, quality and delivery of these goods or services also apply to the client.
4. Intellectual property rights and property rights
a. Unless otherwise agreed, all intellectual property rights arising from the assignment – including patent, design and copyright – belong to the design agency. Insofar as such a right can only be obtained through a deposit or registration, only the design office is authorized to do so.
b. Unless otherwise agreed, the assignment does not include investigating the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties. The same applies to any investigation into the possibility of such forms of protection for the client.
c. Unless the work does not lend itself to it, the design agency is at all times entitled to have his name on or with the work mentioned or removed, and the client is not permitted without prior permission to work without mentioning the name of the work. publish or multiply the design agency.
d. Unless otherwise agreed, the working drawings, illustrations, prototypes, models, templates, templates, designs, design sketches, films and other materials or (electronic) files created by the design agency remain the property of the design agency, regardless of whether these have been made available to the client or to third parties.
e. After completion of the assignment, neither the client nor the design agency have a retention obligation towards each other with regard to the materials and data used..
5. Use and license
a. When the client fully complies with his obligations under the agreement with the design agency, he obtains an exclusive license to use the design insofar as this concerns the right of publication and reproduction in accordance with the destination agreed upon in the assignment. If no agreements have been made about the destination, the licensing will be limited to that use of the design, for which there were firm intentions at the time of the assignment. These plans must be demonstrably notified to the design agency before the conclusion of the contract.
b. Without the written permission of the design agency, the client is not entitled to use the design more widely or in any other way than agreed. In case of non-agreed broader or other use, including change, mutilation or damage to the provisional or final design, the designer is entitled to compensation for infringement of his / her rights of at least three times the agreed fee, at least a compensation which is in reasonableness and fairness in proportion to the infringement committed, without prejudice to the right of the designer to claim compensation for the actual damage suffered.
c. The client is no longer allowed to use the results made available and any license granted to the client in the context of the assignment will lapse:
i. from the moment that the client does not (fully) meet his (payment) obligations under the agreement or is otherwise in default, unless the shortcoming of the client is of minor importance in light of the entire assignment;
ii. if the assignment, for whatever reason, is terminated prematurely, unless the consequences of this are contrary to reasonableness and fairness.
d. Taking into account the interests of the client, the design agency has the freedom to use the design for its own publicity or promotion.
6. Fee and additional costs
a. In addition to the agreed fee, the costs incurred by the design agency for the execution of the assignment are also eligible for reimbursement.
b. If the design agency is forced to carry out more or other work due to the failure to deliver complete, sound and clear data / materials or due to a modified or incorrect assignment or briefing, these work must be honored separately, based on the usual fee rates applied by the design agency.
c. If the fee has been made in any way dependent on facts or circumstances, which must be apparent from the client’s administration, the design agency has the right, after a statement from the client, to have the client’s administration administered by an accountant chosen by the design agency. to check. If the result of the audit by the accountant deviates more than 2% or 100, – from the statement and the statement by the client, the costs of this audit will be borne by the client.
a. Payments must be made within 14 days of the invoice date, unless otherwise agreed. If, after the expiry of this period, no (full) payment has been received by the design office, the client is in default and owes interest equal to the statutory interest under Art. 119a Book 6 BW. All costs incurred by the design agency, such as legal costs and extrajudicial and judicial costs, including the costs for legal assistance, bailiffs and collection agencies, incurred in connection with late payments, will be borne by the client. The extrajudicial costs are set at at least 10% of the invoice amount with a minimum of 150, – excl. BTW.
b. The design agency has the right to charge its fee monthly for work performed and costs incurred for the execution of the assignment.
c. The client will make the payments due to the design agency without any discount or advances, which he has provided to the design agency. The client is not entitled to suspend payment of invoices for work already performed.
8. Termination and dissolution of the agreement
a. When the client terminates an agreement, he must, in addition to compensation, pay the fee and the costs incurred with regard to the work performed until then.
b. If the agreement is dissolved by the design agency 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 with regard to the work performed up to that time. Behavior by the client on the basis of which the design agency can no longer reasonably be expected to complete the assignment is also regarded in this context as an attributable shortcoming.
c. The compensation referred to in the previous two paragraphs of this article will at least include the costs arising from the commitments entered into by the design agency 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 would be due in the event of full fulfillment of the assignment.
d. Both the design agency and the client have the right to immediately dissolve the agreement in whole or in part in the event of bankruptcy or (provisional) suspension of payments of the other party. In the event of bankruptcy of the client, the designer has the right to terminate the granted right of use, unless the consequences of this are contrary to reasonableness and fairness.
e. In the event of dissolution by the client due to an attributable shortcoming in the fulfillment of the obligations by the design agency, the services already delivered and the related payment obligation will not be the object of cancellation, unless the client proves that the design agency is in default with regard to those services. . Amounts invoiced by the design agency prior to the dissolution in connection with what it has already properly performed or delivered in implementation of the agreement, will remain due in full, with due observance of the provisions of the previous sentence, and will become immediately due and payable at the time of the dissolution.
f. If the activities of the design agency consist of repeatedly performing similar activities, then the applicable agreement, unless otherwise agreed in writing, will apply for an indefinite period. This agreement can only be terminated by written cancellation, subject to a reasonable notice period of at least three months..
9. Warranties and Indemnities
a. The design agency guarantees that the delivered goods have been designed by or on behalf of him and that, if the design is copyrighted, he counts as a maker within the meaning of the Copyright Act and as a copyright holder of the work.
b. The client indemnifies the design agency or persons engaged by the design agency for the assignment against all claims from third parties arising from the applications or the use of the result of the assignment.
c. The client indemnifies the design agency against claims regarding intellectual property rights on materials or data provided by the client, which are used in the execution of the assignment.
a. The design agency is not liable for:
i. errors or shortcomings in the material provided by the client.
ii. misunderstandings, errors or shortcomings with regard to the execution of the agreement if these are caused by or caused by actions by the client, such as the failure to deliver complete, sound and clear data / materials on time or not.
iii. errors or shortcomings of third parties engaged by or on behalf of the client.
iv. defects in quotations from suppliers or exceeding of quotations from suppliers.
v. errors or shortcomings in the design or the text / data, if the client in accordance with the provisions of art. 2.e has given his approval or has been given the opportunity to carry out an inspection and has made use of it.
vi. errors or shortcomings in the design or the text / data, if the client has omitted the realization or commissioning of a certain model, prototype or test, and these errors in such a model, prototype or test would have been observable.
b. The design agency is only liable for direct damage attributable to it. Direct damage only means:
i. reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions;
ii. any reasonable costs necessary to ensure that the design agency’s faulty performance complies with the agreement;
iii. reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to limitation of the direct damage as referred to in these general terms and conditions. Liability of the design agency for all other than the aforementioned damage, such as indirect damage, including consequential damage, loss of profit, mutilated or lost data or materials, or damage due to business interruption, is excluded.
c. Except in the case of intent or deliberate recklessness on the part of the design agency or the management of the design agency – subordinates therefore excluded – the liability of the design agency for damage resulting from an agreement or a wrongful act committed against the client is limited to the invoice amount the part of the assignment performed relates to, less the costs incurred by the design agency for engaging third parties, on the understanding that this amount will not exceed € 45,000 and in any case is limited to a maximum of the amount that if applicable, the insurer will pay out to the design agency.
d. Any liability will lapse after one year from the time the assignment is completed.
e. 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 design agency cannot be held liable for damage that would not have occurred if these copies had existed.
11. Other provisions
a. The client is not permitted to transfer any right under an agreement concluded with the design agency to third parties, other than with the transfer of his entire company.
b. 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 be bound by the same confidential treatment with regard to these facts and circumstances originating from the other party.
c. The headings in these general terms and conditions only serve to improve readability and are not part of these conditions.
d. English and Welsh law applies to the agreement between the design agency and the client. The judge to hear disputes between the design agency and the client is the competent court in the district where the design agency is established, or the judge competent according to the law, at the choice of the design agency.
London April 2020. To the general terms and conditions of the BNO.