Terms and conditions: English Version 2023 | Tiny Taurus Multimedia Creatie
1 Agreement, Quotation, and Confirmation
1.1 These general terms and conditions apply, to the exclusion of any purchase or other conditions of the client, to the formation, content, and performance of all agreements concluded between the client and the contractor.
1.2 Quotations are non-binding and valid for a period of 1 month. Price quotations may undergo changes due to unforeseen changes in the scope of work. Prices are exclusive of VAT and other government levies. Stated rates and offers do not automatically apply to future assignments.
1.3 Orders must be confirmed in writing by the client. If the client fails to do so but nonetheless agrees to the contractor commencing the execution of the order, the contents of the quotation will be deemed agreed upon. Further verbal agreements and stipulations are binding on the contractor only after being confirmed in writing.
1.4 If the client intends to assign the same task simultaneously to parties other than the contractor or has already assigned the task to another party, the client must inform the contractor, specifying the names of these other parties.
1.5 Any additional costs due to changes and/or additional work in the assignment are borne by the client. The determination of additional costs is based on a calculation of the actual number of hours spent, with the calculation being made at a rate considered reasonable in the industry unless otherwise agreed upon between the parties.
2 Execution of the Agreement
2.1 The contractor will make every effort to carry out the assignment carefully and independently, representing the client’s interests to the best of their knowledge and aiming for a result usable for the client. If necessary, the contractor will keep the client informed of the progress of the work.
2.2 The client is required to do everything reasonably necessary or desirable to enable timely and correct delivery by the contractor, especially by timely (or having timely) delivery of complete, sound, and clear data or materials.
2.3 The time frame provided by the contractor for completing the design is indicative unless the nature or content of the agreement indicates otherwise. In the event of exceeding the specified period, the client must formally notify the contractor in writing.
2.4 Unless otherwise agreed, conducting tests, obtaining permits, and assessing whether the client’s instructions comply with legal or quality standards are not part of the contractor’s assignment.
2.5 Before proceeding to production, reproduction, or disclosure, the parties must give each other the opportunity to review and approve the final models, prototypes, or proofs of the design. If the contractor, whether in the name of the client or not, issues instructions to production companies or other third parties, the client must confirm the above-mentioned approval in writing upon the contractor’s request.
2.6 Complaints must be communicated to the contractor in writing as soon as possible, but in any case within ten working days after completion of the assignment. Failure to do so will imply that the client has fully accepted the results of the assignment.
3 Engagement of Third Parties
3.1 Unless otherwise agreed, assignments to third parties, as part of the design, are provided by or on behalf of the client. Upon the client’s request, the contractor may act as an authorized representative, at the client’s expense and risk. Parties may agree on a further compensation for this.
3.2 If, at the client’s request, the contractor prepares an estimate for the costs of third parties, this estimate will only be indicative. If desired, the contractor can request quotations on behalf of the client.
3.3 If, during the execution of the assignment, the contractor, according to explicit agreement, procures goods or services from third parties at their 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 the supplier concerning the quality, quantity, nature, and delivery of these goods or services will also apply to the client.
4 Intellectual Property Rights and Ownership
4.1 Unless otherwise agreed, all intellectual property rights arising from the assignment, including patent rights, design rights, and copyrights, belong to the contractor. If such a right can only be obtained through a deposit or registration, the contractor is exclusively authorized to do so.
4.2 Unless otherwise agreed, the assignment does not include an investigation into the existence of rights, including patent rights, trademark rights, design or model 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.
4.3 Unless the nature of the work makes it unsuitable, the contractor is at all times entitled to have their name mentioned on or near the work, or to have it removed. Without prior permission, the client is not allowed to make the work public or reproduce it without mentioning the contractor’s name.
4.4 Unless otherwise agreed, the working drawings, illustrations, prototypes, models, designs, design sketches, films, and other materials or (electronic) files produced 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.
4.5 After completion of the assignment, neither the client nor the contractor has a duty to retain the materials and data used toward each other.
5 Use and License
5.1 Upon the full fulfillment of the client’s obligations under the agreement with the contractor, the client obtains an exclusive license for the use of the design, to the extent that it concerns the right of publication and reproduction in accordance with the purpose agreed upon in the assignment. If no agreements have been made regarding the purpose, the license is limited to the use of the design for which definite intentions existed at the time of assigning the task. These intentions must be demonstrably communicated to the contractor before concluding the agreement.
5.2 Without the written permission of the contractor, the client is not entitled to use the design more broadly or in a manner other than agreed upon. In the case of unauthorized broader or different use, including modification, mutilation, or impairment of the preliminary or final design, the contractor is entitled to compensation for infringement of their rights, at least three times the agreed-upon fee, or a fee that is reasonable and fair in relation to the infringement, without prejudice to the contractor’s right to claim compensation for actual damages suffered.
5.3 The client is no longer allowed to use the provided results, and any license granted to the client as part of the assignment becomes void:
a. From the moment the client fails to fulfill his (payment) obligations under the agreement (completely), or is otherwise in default, unless the client’s default is of minor significance in the context of the entire assignment;
b. If the assignment, for any reason, is terminated prematurely, unless the consequences thereof are contrary to reasonableness and fairness.
5.4 With due regard to the client’s interests, the contractor is free to use the design for their own publicity or promotion.
6 Fee and Additional Costs
6.1 In addition to the agreed fee, the costs incurred by the contractor for the execution of the assignment are also eligible for reimbursement.
6.2 If the contractor is compelled to perform additional or different work due to the client’s failure to timely or properly provide complete, sound, and clear data/materials or due to a modified or incorrect assignment or briefing, these additional tasks must be compensated separately, based on the customary fee rates applied by the contractor.
6.3 If the compensation is in any way dependent on facts or circumstances that must be apparent from the client’s administration, the contractor, after a statement by the client, has the right to have the client’s administration audited by an accountant chosen by the contractor. If the outcome of the audit by the accountant deviates more than 2% or €100 from the client’s statement and settlement, the costs of this audit will be borne by the client.
7 Payment
7.1 Payments, unless otherwise specified, must be made within 14 days after the invoice date. For amounts exceeding €1100, excluding VAT, it is possible to arrange payment in 2 to 4 installments through consultation. The first installment is due at the beginning of the assignment, and the remaining installments are due on the first of each month. If, after the expiration of the term, the contractor has not received (full) payment, the client is in default and is liable for interest equal to the legal interest rate. All costs incurred by the contractor, such as administrative costs, legal costs, and out-of-court and judicial costs, including costs for legal assistance, bailiffs, and collection agencies, incurred in connection with late payments, are at the expense of the client. The extrajudicial costs are set at a minimum of 10% of the invoice amount, with a minimum of €150, excluding VAT. If the client wishes to pay in installments, it is required to notify this upon signing the offer/order confirmation, up to a maximum of 5 days after signing the offer/order confirmation. If no payment arrangement has been agreed upon for projects exceeding €1100,- excluding VAT, we apply a 50% upfront payment at the start of the project.
7.2 The contractor has the right to invoice their fee monthly for services performed and costs incurred for the execution of the assignment.
7.3 The client makes the payments due to the contractor without any deduction or set-off, except for the set-off with offsettable advances relating to the agreement, which the client has provided to the contractor. The client is not entitled to suspend payment of invoices for services already performed.
8 Termination and Dissolution of the Agreement
8.1 If the client terminates an agreement, he must, in addition to damages, pay the fee and costs incurred with regard to the work performed up to that point.
8.2 If the agreement is dissolved by the contractor due to an attributable failure in the performance of the agreement by the client, the client must, in addition to damages, pay the fee and costs incurred with regard to the work performed up to that point. Behaviors of the client on the basis of which the contractor can reasonably no longer be required to complete the assignment are also considered as attributable failure in this regard.
8.3 The damages referred to in the previous two paragraphs of this article shall at least include the costs resulting from the commitments entered into by the contractor in their 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 owe in the event of full completion of the assignment.
8.4 Both the contractor and the client have the right to immediately terminate the agreement in whole or in part in case of bankruptcy or (provisional) suspension of the other party. In the event of the client’s bankruptcy, the contractor has the right to terminate the granted right of use, unless the consequences thereof are contrary to reasonableness and fairness.
8.5 In the event of termination by the client due to an attributable failure in the performance of the obligations by the contractor, the already delivered performances and the related payment obligation shall not be subject to cancellation unless the client proves that the contractor is in default with regard to those performances. Amounts that the contractor has invoiced before the termination in connection with what he has properly performed or delivered as part of the agreement remain due in accordance with the foregoing and become immediately due and payable at the time of termination.
8.6 When the activities of the contractor consist of repeatedly performing similar activities, the applicable agreement, unless otherwise agreed in writing, will apply for an indefinite period. This agreement can only be terminated by written notice, with a reasonable notice period of at least three months.
9 Guarantees and Indemnities
9.1 The contractor guarantees that the delivered product has been designed by them or on their behalf, and if there is copyright on the design, they are considered the creator within the meaning of the Copyright Act and can dispose of the work as the copyright holder.
9.2 The client indemnifies the contractor or individuals engaged by the contractor in the assignment from all claims by third parties arising from the applications or use of the results of the assignment.
9.3 The client indemnifies the contractor against claims related to intellectual property rights in materials or data provided by the client, used in the execution of the assignment.
10 Liability
10.1 The contractor is not liable for:
a. Errors or deficiencies in the material provided by the client.
b. Misunderstandings, errors, or deficiencies regarding the execution of the agreement if they have their cause in actions of the client, such as not timely or not providing complete, sound, and clear data/materials.
c. Errors or deficiencies of third parties engaged by or on behalf of the client.
d. Defects in quotations from suppliers or for exceeding price quotes from suppliers.
e. Errors or deficiencies in the design or text/data if the client, in accordance with Article 2.5, has given their approval or has had the opportunity to conduct an inspection and has not used it.
f. Errors or deficiencies in the design or text/data if the client has omitted the creation or execution of a particular model, prototype, or test, and these errors would have been noticeable in such a model, prototype, or test.
10.2 The contractor is only liable for directly attributable damage. Direct damage is solely understood to mean:
a. Reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions.
b. Any reasonable costs necessary to make the defective performance of the contractor comply with the agreement.
c. Reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to a limitation of the direct damage as referred to in these general terms and conditions. The liability of the contractor for all other damages, such as indirect damages, including consequential damages, loss of profit, mutilated or lost data or materials, or damages due to business interruption, is excluded.
10.3 Except in case of intent or conscious recklessness of the contractor or the management of the contractor – excluding subordinates, the liability of the contractor for damage under a contract or a tort committed against the client is limited to the invoice amount related to the executed part of the assignment, reduced by the costs incurred by the contractor for engaging third parties, provided that this amount will not exceed €45,000, and in any case limited to the amount that the insurer pays to the contractor in the relevant case.
10.4 Any liability expires after the expiration of 6 months from the moment the assignment is completed.
10.5 The client is obliged, if reasonably possible, to retain copies of materials and data provided by him until the assignment is fulfilled. If the client fails to do so, the contractor cannot be held liable for damage that would not have occurred if these copies had existed.
11 Other Provisions
11.1 The client is not allowed to transfer any rights from an agreement concluded with the contractor to third parties, other than in the case of transferring his entire business.
11.2 Parties are obliged to treat confidentially facts and circumstances that come to the knowledge of the other party in the context of the assignment. Third parties involved in the execution of the assignment will also be bound by the same confidential treatment regarding these facts and circumstances from the other party.
11.3 The headings in these general terms and conditions serve only to promote readability and do not form part of these conditions.
11.4 Dutch law applies to the agreement between the contractor and the client. The court with jurisdiction to hear disputes between the contractor and the client is the competent court in the district where the contractor is established, or the court designated by law, at the choice of the contractor.
The General Terms and Conditions of Tiny Taurus | Multimedia Creative can also be found on its website www.tinytaurus.nl/general-conditions.
Contact: legal@tinytaurus.nl