General Term and Conditions BNO / March 2021
1 Agreement, offer and confirmation
1.1 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 (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.
1.2 All offers are without commitment and are valid for 2 (two) months. Prices quoted may be subject to change due to unforeseen changes in the work. Prices are exclusive of VAT. The rates and offers quoted in the offer or other quotations do not automatically apply to future commissions. The Client warrants that the information provided to the Designer by him/her or on his/her behalf and on which the Designer bases the offer is correct and complete.
1.3 Commissions are confirmed in writing by the Client. If the Client fails to do so but consents to the Designer commencing the work commissioned, the terms of the offer are deemed to have been agreed on and these General Terms and Conditions apply. Any subsequent oral agreements and stipulations are not binding on the Designer until he has confirmed them in writing.
2 Performance of the agreement
2.1 The Designer must make every effort to perform the work commissioned carefully and independently, to promote the Client’s interests to the best of his or her ability and to aim 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 Designer must keep the Client informed of the progress of the work.
2.2 The Client must do any and all things that are reasonably necessary and/or required to enable the Designer to deliver punctually and properly, such as supplying (or causing the supply of) complete, sound and clear data and/or materials in a timely manner.
2.3 Terms stated by the Designer for the performance of the work commissioned are approximations only, unless otherwise agreed in writing.
2.4 Unless otherwise agreed, the following do not form part of the work commissioned to the Designer:
a. performing tests, applying for permits and assessing whether the Client’s instructions comply with statutory or quality standards;
b. investigating any existing rights, including patents, trademarks, drawing or design rights or portrait rights of third parties; and c. investigating the possibility of the forms of protection referred to in (b) for the Client.
2.5 Prior to performance, production, reproduction or publication, the parties must give each other the opportunity to check and approve the final draft, prototypes or galley proofs of the result.
2.6 Differences between the (final) result and the agreements made cannot serve as grounds for rejection, discount, damages or dissolution of the agreement if those differences are reasonably of minor importance, taking all the circumstances into account.
2.7 Any complaints must be filed with the Designer in writing at the earliest possible time but no later than 10 (ten) business days after completion of the work commissioned, failing which the Client is deemed to have accepted the result of the work commissioned in its entirety. General Terms and Conditions of the Association of Dutch Designers (BNO) March 2021 2/6 General Terms and Conditions BNO / March 2021
3 Engagement of third parties
3.1 Unless otherwise agreed, instructions to third parties in the context of the performance of the work commissioned are given by or on behalf of the Client. At the Client’s request the Designer may act as an agent for the Client’s account and risk. The parties may agree on a fee for such agency.
3.2 If the Designer provides an estimate of third-party costs at the Client’s request, that estimate is an approximation only. If required, the Designer may apply for quotations at third parties on the Client’s behalf.
3.3 If the Designer 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 agreement with the Client, whereby those goods or services are delivered, passed on or resold to the Client, these general conditions of and/or any separate agreements made with that supplier also apply to the Client. The Designer will allow the Client to examine the general conditions of and/or separate agreements with the supplier.
3.4 If the Designer gives commissions or instructions to production companies or other third 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 Terms and Conditions.
3.5 The Client may not engage any third parties without consultation with the Designer if that may influence the performance of the work commissioned as agreed on with the Designer. The Parties will consult, if necessary, as to which third parties will be engaged and which work will be assigned to them.
3.6 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.
4 Intellectual and other property rights
4.1 All intellectual property rights to the results arising from the work commissioned vest in the Designer. Insofar as any of such rights can be acquired only by means of an application or registration, the Designer will have the sole and exclusive power to effect that application or registration, unless otherwise agreed. The “intellectual property rights” expressly include copyrights, databank rights, neighbouring rights, trademark rights, design rights, patents, domain name rights, know-how, commercial knowledge, trade secrets, and all similar rights, wherever they arise in the world, whether or not registrable, and including applications for them.
4.2 The 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 and payment of the agreed fee for that purpose, a right of use is granted as regulated in Article 5 of these General Terms and Conditions.
4.3 The Designer is entitled at any time to imprint his name on or in, or to remove it from, the result of the work commissioned (or publicity related thereto) or to have his name imprinted on or in, or removed from, the result of the work commissioned, in a manner that is customary for that result. Without the Designer’s prior consent the Client may not publish or reproduce the result without identifying the Designer by name.
4.4 Unless otherwise agreed, the original or other results (such as designs, design sketches, drafts, advice, reports, budgets, estimates, specifications, design drawings, illustrations, photographs, prototypes, scale models, templates, prototypes, products and partial products, films audio and video or other presentations, source codes, source files and other materials or (electronic) data files etc.) made by the Designer as part of the work commissioned remain the Designer’s property, irrespective of whether they have been made available to the Client or to third parties. The Parties may agree on a fee for the transfer of these results.
4.5 On completion of the work commissioned, the Client and the Designer will have no obligation to retain the original or other results produced by the Designer, as referred to in 4.4, unless otherwise agreed. 3/6 General Terms and Conditions BNO / March 2021
5 Use of the result
5.1 Once the Client has fulfilled all his/her obligations arising from the agreement with the Designer, he/she acquires the right to use the licence for the result of the work commissioned in accordance with its purpose. If no such specific purpose has been agreed on, the right of use is limited to that use of the design for which the commission was (manifestly) given. The right of use is exclusive, unless otherwise apparent from the nature of the agreement or otherwise agreed.
5.2 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.
5.3 Without the Designer’s prior written consent, the Client is not entitled to change the result of the work commissioned, or to use or reuse it in a broader or different manner than agreed, or to allow third parties to do so. The Designer may make that consent subject to conditions, including payment of an additional fee.
5.4 In the event of broader or different use on which no agreement was reached, including any modification, mutilation or infringement of the provisional or final result, the Designer is 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 proportional to the infringement committed, without losing any other rights.
5.5 Unless the Designer gives prior consent, the Client is not (or no longer) permitted to use the result of the work commissioned or to elaborate or have a third party elaborate on it, and any right of use of the licence granted to the Client in the context of the work commissioned will lapse, unless the consequences conflict with the rules of reasonableness and fairness: a. the moment that the Client fails to perform or to fully perform his payment or other obligations under the agreement, or is otherwise in default; b. if the work commissioned is terminated prematurely for the reasons referred to in Article 8.1 of these General Terms and Conditions; or c. 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.
5.6 With due observance of the Client’s interests, the Designer may use the results at his/her discretion for his/her own publicity, to secure commissions, for promotional purposes, including use on the internet, websites and social media, competitions and exhibitions, etc., and to obtain them on loan, if physical results are involved.
6 Fees and additional costs
6.1 The 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 or a fee agreed between the parties.
6.2 In addition to payment of the agreed fee, the Designer is entitled to reimbursement of any costs incurred by him in the performance of the work commissioned, such as administrative overheads, travel and accommodation expenses, costs of prints, copies, (galley) proofs and prototypes, and costs of third parties related to advice, production, supervision, etc. Those costs must be itemised beforehand to the extent possible, unless a mark-up percentage is agreed on.
6.3 If the Designer is required to perform more or other work due to late delivery or non-delivery of complete, sound and clear information and/or materials, any change or error in instructions or briefings, or any external circumstances, such additional work is charged separately on the basis of the Designer’s usual fees. The Designer will then inform the Client accordingly beforehand unless that is impossible due to circumstances or the nature of the work does not allow any delay.
7 Payment and suspension
7.1 The Designer is responsible 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.
7.2 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. 4/6 General Terms and Conditions BNO / March 2021
7.3 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.
7.4 If the Client fails to pay all or part of the amounts due, it owes statutory interest and out-ofcourt costs of collection, amounting to at least 10% of the invoice amount, subject to a minimum of € 150, excluding VAT.
7.5 The Designer may suspend the performance of the work commissioned after the term for payment has expired and the Client, after a written demand to make payment within 14 days, fails to make that payment, or if the Designer is forced to conclude on the grounds of a statement or act on the part of the Client that payment will not be made.
8 Attributable breach, notice of termination and dissolution of the agreement
8.1 If an attributable breach occurs, the aggrieved party must first give the other party a written notice of default, allowing that other party a reasonable period in which to still comply with his/her obligations, to remedy mistakes, or to limit or undo damage. The notice of default must contain as detailed a description of the breach as possible.
8.2 If the Client gives notice of early termination of the agreement, without any attributable breach on the part of the Designer, or if the Designer dissolves the agreement on the grounds of breach by the Client in the performance of the agreement, the Client is liable for damages in addition to the Designer’s fee and the costs incurred in connection with the work performed until that time. In this context any conduct by the Client on the grounds of which the Designer cannot reasonably be required to complete the work commissioned is also regarded as breach.
8.3 The damages referred to in the preceding paragraph of this Article include at least the costs arising from obligations undertaken by the Designer in his own name with third parties for the performance of the work commissioned, as well as 30% (thirty per cent) of the balance of the fee that the Client would owe the Designer if the work commissioned were completed in full.
8.4 Both the Designer and the Client have the right to terminate the agreement in whole or in part with immediate effect, and all amounts due are payable immediately, if a petition in bankruptcy or a petition for a suspension or provisional suspension of payment or for application of the debt rescheduling arrangement is filed in respect of the other party, or if the other party dies.
8.5 If the Designer’s work consists of recurrently performing work of a similar nature, a continuing performance agreement is involved, unless otherwise agreed in writing. Such an agreement may be terminated only by written notice given while observing a reasonable notice period of no less than 3 (three) months, during which period the Client must continue to purchase the customary amount of work from the Designer or compensate the Designer financially for loss of turnover and costs incurred.
9 Warranties and indemnities
9.1 The Designer warrants that the result has been designed by him or her or on his or her behalf and, if the result is copyright-protected, that the Designer is the author within the meaning of the Auteurswet (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.
9.2 The Client indemnifies the Designer or persons engaged by the Designer in the performance of the work commissioned against any third-party claims arising from the application or use of the results of the work commissioned. 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.
9.3 The Client indemnifies the Designer 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. 5/6 General Terms and Conditions BNO / March 2021
10.1 The Designer is liable only for direct damage suffered by the Client that is the direct and sole result of a breach in performing the work commissioned that is attributable to the Designer. The Designer’s liability for consequential and indirect damage, including, but not limited to, loss of profits, loss savings, damage to his/her image, corrupted or lost data or materials, or damage due to business interruption is excluded.
10.2 Except in the event of intent or wilful recklessness on the part of the Designer, the Designer’s total liability is limited to the fee 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 may not exceed EUR 75,000 and is always capped at the amount paid to the Designer by the insurance company in that case. The amount for which the Designer is liable in the case in question is reduced by any sums insured by the Client.
10.3 Any and all liability expires two years from the date on which the work commissioned has ended on the grounds of completion, termination or dissolution.
If the Designer has to process personal data of the Client, or of the Client’s customers, for the purpose of the services to be performed, the Designer will be regarded as the ‘processor’ and the Client as the ‘controller’ within the meaning of the General Data Protection Regulation (GDPR) and a processing agreement will be concluded.
12 Force majeure
12.1 If one party fails to fulfil his/her obligations but this failure cannot be attributed to him/her (force majeure), that party is not liable and fulfilling that obligation is suspended for as long as the force majeure situation lasts.
12.2 Force majeure includes, but is not limited to, weather conditions, fires, strikes, illness, pandemics, epidemics, war and other violence, hacks, cyber attacks or other technical failures and resultant circumstances, such as government interventions, including quarantine measures, which reasonably prevent one party from fulfilling obligations and lead to delays, as well as delays or failures of suppliers and/or other third parties engaged in the performance of the agreement.
12.3 If one party relies on force majeure, he/she must notify the other party in writing as soon as possible, with reference to the necessary supporting documents/reasons.
12.4 If the force majeure situation has lasted for 60 (sixty) days, either party may terminate all or part of the agreement, insofar as the force majeure situation justifies termination.
12.5 If force majeure occurs, the Designer will be entitled to the portion of the fee for the work that he/she has performed and to be reimbursed for the costs that he/she has already incurred or that are unavoidable, for instance in connection with orders and instructions to third parties that cannot be cancelled any longer without liability for compensation.
13 Other provisions
13.1 If the Client wishes to commission the work at the same time to parties other than the Designer or has previously already commissioned the work to another party, he/she must inform the Designer of this in advance.
13.2 The Client is not permitted to transfer or assign to third parties any of the rights under an agreement concluded with the Designer, except in the event of transfer of his/her entire business or with the Designer’s prior written consent.
13.3 Both parties must keep confidential any and all confidential information, facts and 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. The parties must impose the same duty of confidentiality on their employees, or third parties engaged in the performance of the work commissioned, in respect of such facts and circumstances from the other party. 6/6 General Terms and Conditions BNO / March 2021
13.4 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.
13.5 The headings of these General Terms and Conditions have been included for easy reference only and do not form part of these General Terms and Conditions.
13.6 These General Terms and Conditions may be amended at any time. The Designer will inform the Client of any amendments.
13.7 All agreements between the Designer and the Client are governed by Dutch law. The parties will first attempt to settle any dispute by agreement. 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 decide on any disputes between the Designer and the Client.
March 2021 – Filed with the Amsterdam Chamber of Commerce by the BNO