General terms and conditions

2. The execution of the agreement

2.1 DIG shall make every effort to carry out the assignment carefully and independently, to promote the client’s interests to the best of its knowledge and to strive for a result that is useful to the client, as can and may be expected of a reasonable and professionally acting strategy design agency. To the extent necessary, DIG will keep the client informed of the progress of the work.

2.2 The client shall do all that is reasonably necessary or desirable to enable a timely and correct delivery by DIG, such as the timely supply (or arrange for the timely supply) of complete, sound and clear data or materials, which DIG indicates or which the client understands or should reasonably understand to be necessary for the execution of the agreement.

2.3 A deadline specified by DIG for the execution of the order is indicative, unless otherwise agreed in writing.

2.4 Unless otherwise agreed, DIG’s tasks do not include:

• conducting tests, applying for licences and assessing whether instructions from the client comply with legal or quality standards;
• conducting research into the existence of rights, including patent rights, trademark rights, drawing or model rights, copyrights or portrait rights of third parties;
• investigating the possibility of the possible forms of protection referred to under b. for the principal.

2.5 Before execution, production, reproduction or publication, the parties shall give each other the opportunity to check and approve the final models, prototypes or tests of the result.

2.6 Deviations in the (final) result from what has been agreed shall not be a reason for rejection, discount, compensation or dissolution of the agreement, if such deviations, taking all circumstances into account, are reasonably of minor importance.

2.7 Complaints shall be communicated to DIG in writing as soon as possible, but in any event within ten working days of completion of the assignment, failing which the client shall be deemed to have fully accepted the result of the assignment.

3. Engaging third parties

3.1 Unless otherwise agreed, assignments to third parties in the context of the execution of the assignment will be given by or on behalf of the client. At the client’s request, DIG may, at the client’s expense and risk, act as an agent. The parties may agree on a fee for this.

3.2 When DIG draws up an estimate for third-party costs at the request of the client, this estimate is indicative. If required, DIG may request quotations on behalf of the client.

3.3 When, in the execution of the order, DIG procures goods or services from third parties at its own expense and risk in accordance with an express agreement, after which these goods or services are passed on to the client, the provisions of the general terms and conditions of and/or separate agreements with the supplier with regard to the guarantee and liability also apply to the client.

3.4 When DIG, whether or not in the name of the client, issues orders or instructions to production companies or other third parties, then the client will, at the request of DIG, confirm the approval referred to in Article 2.5 of these General Terms and Conditions in writing.

3.5 The client will not engage third parties without consultation with DIG where this may affect the performance of the order as agreed with DIG. Where appropriate, the parties will consult which other contractors will be engaged and what work will be assigned to them.

3.6 DIG is not liable for errors or defects in products or services of third parties engaged by or on behalf of the client, regardless of whether these were introduced by DIG. The client must hold these parties accountable themselves. DIG can provide assistance in this regard if required.

4. Intellectual property rights and property rights

4.1 All intellectual property rights arising from the assignment – including patent rights, trademark rights, drawing or model rights and copyright rights – to the results from the assignment will accrue to DIG. Insofar as such a right can only be obtained by filing or registration, only DIG is authorised to do so, unless otherwise agreed.

4.2 The parties may agree that all or part of the rights referred to in the first paragraph will be transferred to the client. This transfer and any conditions under which the transfer takes place will always be recorded in writing. Until the moment of transfer, a right of use will be granted as regulated in Article 5 of these General Terms and Conditions.

4.3 DIG is at all times entitled to mention or remove his/her name on, near or in publicity surrounding the result of the assignment – in the manner customary for that result. Without prior permission from DIG, the client is not permitted to publish or reproduce the result without mentioning the name of DIG.

4.4 Unless otherwise agreed, the (originals of the) results (such as designs, design sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photographs, prototypes, models, moulds, prototypes, (partial) products, films, (audio and video) presentations, source codes and other materials or (electronic) files, etc.) produced by DIG in the context of the order will remain the property of DIG, irrespective of whether they have been made available to the client or to third parties.

4.5 After completion of the assignment, neither the client nor DIG have any retention obligation towards each other with regard to the materials and data used, unless otherwise agreed.

5. Use of the result

5.1 When the client fully complies with his obligations under the agreement with DIG, he acquires the right to use the result of the assignment in accordance with the agreed destination. If no agreements have been made about the destination, the right of use will be limited to that use, for which the order was (apparently) issued. The right of use is exclusive, unless the nature of the agreement dictates otherwise or if otherwise agreed.

5.2 If the result also relates to works that are subject to the rights of third parties, the parties shall make additional agreements on how the use of these works will be arranged.

5.3 Without written permission, the client does not have the right to adapt, (re)use or perform the result of the assignment in a broader or different way than agreed, or to have this done by the third parties. DIG may attach conditions to this permission, including the payment of an equitable fee.

5.4 In the event of non-agreed broader or other use, including modification, mutilation or impairment of the provisional or final result, DIG will be entitled to compensation due to infringement of his/her rights of at least three times the agreed fee, or at least a fee that is reasonably and fairly proportional to the infringement committed, without losing any other rights.

5.5 The client is not (or no longer) permitted to use the results made available and any right of use granted to the client in the context of the assignment lapses, unless the consequences are contrary to reasonableness and fairness:

• from the moment that the client fails to fulfil his (payment) obligations under the agreement or fails to do so in full or is otherwise in default;
• if the assignment is terminated prematurely for reasons mentioned in article 8.1 of these General Terms and Conditions;
• in the event of the client’s bankruptcy, unless the relevant rights have been transferred to the client in accordance with Article 4.2 of these General Terms and Conditions.

5.6 DIG is free, with due regard for the client’s interests, to use the results for its own publicity, acquisition of commissions, promotion, including competitions and exhibitions, etc., and to have them on loan, where physical results are concerned.

6. Remuneration and costs

6.1 DIG is entitled to a fee for carrying out the assignment. This may consist of an hourly rate, a consultancy fee, a fixed amount, whether or not related to the project sum or any other fee to be agreed between the parties.

6.2 In addition to the agreed fee, the costs incurred by DIG for the execution of the assignment, such as office, travel and accommodation costs, costs for prints, copies, (printing) proofs, prototypes, and costs of third parties for advice, production and supervision, etc., are also eligible for reimbursement. These costs shall as far as possible be specified in advance, except where a mark-up percentage is agreed.

6.3 When DIG is forced to carry out more or other work due to the late or non-delivery of complete, sound and clear data/materials, a modified or incorrect order or briefing, or external circumstances, this work will be reimbursed separately, based on the usual hourly rates charged by DIG. DIG will inform the client about this in advance, unless this is not possible due to circumstances or the nature of the work does not allow for postponement.

6.4 If the execution of the assignment is delayed or interrupted by circumstances that cannot be attributed to DIG, the client shall be obliged to reimburse any costs incurred as a result. DIG will try to limit the costs as much as possible.

7. Payment and suspension

7.1 All payments must be made without deduction, set-off or suspension, within 15 days of the invoice date, unless otherwise agreed in writing or the invoice states otherwise.

7.2 All goods delivered to the client will remain the property of DIG until all amounts owed by the client to the designer under the agreement concluded between the parties have been paid to DIG in full.

7.3 If the client is in default of full or partial payment of the amounts owed, the client will owe statutory interest and extrajudicial collection costs, which will be at least 10% of the invoice amount with a minimum of €150 excluding VAT.

7.4 DIG shall ensure timely invoicing. In consultation with the client, DIG may invoice the agreed fee and costs as an advance, interim or periodic invoice.

7.5 DIG may suspend the execution of the order after the term of payment has expired and the client, after being reminded in writing to still pay within 14 days, fails to do so, or when DIG must understand by a communication or conduct of the client that payment will not be made.

8. Termination and dissolution of the agreement

8.1 When the client terminates the agreement without any culpable shortcomings on the part of DIG, or when DIG dissolves the agreement due to an attributable shortcoming in the fulfilment of the agreement by the client, the client will be liable for compensation, in addition to the fee and costs incurred in relation to the work carried out up to that time. Behaviour by the client on the grounds of which DIG can no longer reasonably be required to complete the assignment shall in this context also be regarded as an attributable failure.

8.2 The compensation referred to in the previous paragraph will include at least the costs arising from the commitments undertaken by DIG in its own name with third parties for the fulfilment of the assignment, as well as at least 30% of the remaining part of the fee that the client would owe if the assignment were fully completed.

8.3 Both DIG and the client have the right to immediately terminate the agreement in whole or in part, and all amounts owed will become immediately due and payable, when in respect of the other party a petition for bankruptcy, (provisional) suspension of payments, or debt restructuring is filed.

8.4 When the work of DIG consists of the repeated performance of similar work, this is a continuing agreement, unless otherwise agreed in writing. This agreement can only be terminated by written notice with due observance of a reasonable notice period of at least three months, during which period the client will continue to purchase the usual amount of work from DIG, or will compensate financially.

9. Competition clause

9.1 The client is not permitted, without the prior written permission of DIG, within a period of two years after the end of the work agreed between them/the execution of the order, regardless of the reason for the termination, to enter into an employment contract for a definite or indefinite period of time with employees of DIG and/or third parties who perform work on behalf of DIG, or to otherwise directly or indirectly carry out work for the client.

For each breach by the client of the provisions in 9.1, the client forfeits an immediately payable fine of €1,135 for each breach and €454 for each day that a breach continues without any summons, notice of default or judicial intervention being required.

10. Guarantees and indemnities

10.1 DIG guarantees that the delivered work was designed by him/her or on his/her behalf and that, where copyright applies to the result, he/she is deemed to be the creator within the meaning of the Auteurswet (Dutch Copyright Act) and can dispose of the work as the copyright owner. DIG guarantees that the result of the assignment at the time of its creation, as far as he/she knows or should reasonably know, does not infringe any third-party rights or is otherwise unlawful.

10.2 When the client uses the results of the assignment, the client indemnifies DIG or third parties engaged by DIG in the assignment against any claims from third parties arising from the applications or use of the result of the assignment. This is without prejudice to DIG’s liability to the client for non-compliance with the guarantees referred to in the previous paragraph and other liability as referred to in Article 10 of these General Terms and Conditions.

10.3 The client shall indemnify DIG against claims relating to intellectual property rights on all materials and/or data provided by the client which are used in the execution of the assignment.

11. Liability

11.1 In the event of an attributable shortcoming, DIG must first be declared to be in default in writing, with a reasonable period in which to comply with its obligations, or to rectify any errors or to limit or eliminate damage.

11.2 DIG is only liable to the client for direct damage attributable to DIG. Liability of DIG for indirect damages, including consequential damages, lost profits, lost savings, mutilated or lost data or materials, or damage due to business stagnation, is excluded.

11.3 Except in cases of intent or deliberate recklessness on the part of DIG, DIG’s liability is limited to DIG’s compensation for the order, or at least that part of the order to which the liability relates. This amount shall not exceed €75,000 and in any event shall at all times be limited to a maximum of the amount paid by the insurer to DIG in the relevant case. The amount for which DIG is liable in the relevant case will be reduced by any sums insured by the client.

11.4 Any liability will lapse by the lapse of two years from the time that the assignment is terminated by completion, cancellation or dissolution.

12. Other provisions

12.1 The client is not permitted to transfer any right from an agreement entered into with DIG to third parties, other than when transferring its entire business or with the written consent of DIG.

12.2 The parties are obliged to keep confidential all confidential information, facts and circumstances, which in the context of the assignment, from each other or from other sources, come to the knowledge of the other party, of which it can be reasonably understood that disclosure or communication to third parties could cause damage to DIG or the client. Third parties involved in the implementation of the assignment will be bound to the same confidential treatment in respect of these facts and circumstances originating from the other party.

12.3 If any provision of these General Terms and Conditions is null and void or annulled, the other provisions of these General Terms and Conditions shall remain in full force and effect. The parties will in that case enter into consultations with the aim of agreeing new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and meaning of the void or voided provisions.

12.4 The headings in these General Terms and Conditions serve only to promote readability and do not form part of these General Terms and Conditions.

12.5 The agreement between DIG and the client is governed by Dutch law. The parties will initially attempt to resolve any dispute that arises in mutual consultation. Unless the parties have expressly agreed arbitration in writing, the competent court according to the law, or the court in the district where DIG is established, this at the discretion of DIG, will take cognisance of disputes between DIG and the client.

12.6 Data in any form, not being personal data, provided by the client or originating from the project may be used by DIG in other projects or development of services. DIG uses such data at its own expense and risk and always anonymised.