GENERAL TERMS AND CONDITIONS
Updated / Actualized on: 06 May 2024
1 Agreement, quotation, and confirmation
1.1 Applicability of general terms and conditions
These General Terms and Conditions (hereafter: “the GTC”) apply to the exclusion of purchase or other conditions of the client, to the conclusion, content and fulfilment of all agreements concluded between the client and the contractor.
1.2 Offer / Quotation
Quotations are without obligation and valid for thirty (30) days. Quotations may undergo changes due to an unforeseen change in the work. Prices do not include sales tax and other government levies. The rates and offers do not automatically apply to future assignments. Quotations are binding once accepted by the client in writing. An ‘unforeseen change in the work’ that may alter the quoted price refers to substantial changes in the project scope, deliverables or requirements communicated by the client after the quote has been provided.
1.3 Written confirmation
Assignments must be confirmed in writing by the client. If the client fails to do so, but nevertheless agrees that the contractor makes a start with the execution of the assignment, the content of the quotation will count as agreed. Further verbal agreements and stipulations bind the contractor only after these have been confirmed in writing by the contractor.
1.4 Multiple contractors
If the client wishes to provide the same assignment to others than this contractor at the same time or has already provided the assignment to another person or legal entity, he must inform the contractor of this, stating the names of these others. If the client engages multiple contractors for the same assignment without informing the contractor, the contractor reserves the right to terminate the agreement and the client shall be liable for any costs incurred by the contractor up to that point.
2 The execution of the agreement
2.1 Run command
The contractor will make every effort to carry out the assignment carefully and independently, to represent the interests of the client to the best of its knowledge and to strive for a result that is usable for the client. To the extent necessary, the contractor will keep the client informed of the progress of the work.
2.2 Provision of data
The client is obliged to do all that is reasonably necessary or desirable to enable a timely and correct delivery by the contractor, by delivering complete, sound and clear data or materials in a timely manner or having them delivered.
2.3 Term of delivery
Unless otherwise explicitly stated in the agreement, any period specified by the contractor for completion of the design shall be considered a non-binding estimate only. However, the contractor shall make reasonable efforts to complete the work within the estimated period provided. If the contractor expects a delay beyond the estimated period due to reasons solely attributable to the contractor, the contractor shall notify the client promptly with the revised timelines. In the case of a delay caused solely by the contractor, the client may claim a penalty of fifteen percent (15%) of the total fee for every month of delay, subject to a maximum of forty-five percent (45%) of the total fee.
2.4 Tests, permits and legal provisions
Unless otherwise agreed, the execution of tests, the application for permits and the assessment whether instructions from the client meet legal or quality standards are not part of the contractor’s assignment.
2.5 Disclosure and reproduction
Before proceeding with production, reproduction or publication, the parties must allow each other to check and approve the latest models, prototypes or design tests. At the request of the contractor, the client must confirm his above-mentioned approval in writing.
2.6 Complaints
Complaints must be communicated to the contractor in writing as soon as possible, but in any case, within ten (10) working days after completion of the assignment, failing which the client is deemed to have accepted the result of the assignment in full.
3 Engaging third parties
3.1 Use suppliers
Unless otherwise agreed, assignments to third parties, in the context of the realization of the design, are provided by or on behalf of the client. At the request of the client, the contractor can, at the expense and risk of the client, act as an authorized representative. The parties can agree on a further agreed fee for this.
3.2 Request quotes for suppliers
If, at the request of the client, the contractor draws up a budget for the costs of third parties, this budget will only have an indicative purpose. If desired, the contractor can request quotations on behalf of the client.
3.3 General terms and conditions of suppliers
If, in the execution of the assignment, the contractor, as expressly agreed, obtains goods or services from third parties for his own account and risk goods or services, after which these goods or services are passed on to the client, then the provisions of the general terms and conditions of the supplier with regard to the quality, quantity, quality and delivery of these goods or services will also apply to the client. The contractor shall make the client aware of the general terms and conditions of any third-party suppliers before procuring goods/services from them on the client’s behalf.
4 Intellectual property rights and property rights
4.1 Copyright and industrial property
Unless otherwise agreed, all intellectual property rights arising from the assignment, including patent law, design right and copyright, belong to the contractor. Insofar as such a right can only be obtained by a deposit or registration, then the contractor is only authorized to do so.
4.2 Examination of the existence of rights
Unless otherwise agreed, the assignment does not include conducting research into the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights and portrait rights of third parties. The same applies to a possible investigation into the possibility of such forms of protection for the client.
4.3 Attribution
Unless the work does not lend itself to it, the contractor is at all times entitled to mention or remove his / her name on or near the work and the client is not permitted without prior permission to make the work public or to reproduce it without mentioning the name of the contractor.
4.4 Ownership at the contractor
Unless otherwise agreed, the working drawings, illustrations, prototypes, models, moulds, designs, design sketches, films, and other materials or (electronic) files created by the contractor in the context of the assignment remain the property of the contractor, regardless of whether these have been made available to the client or to third parties.
4.5 Retention obligation
After completing the assignment, neither the client nor the contractor has a retention obligation towards each other regarding the materials and data used.
5 Use and license
5.1 The use
When the client fully complies with his obligations under the agreement with the contractor, he obtains an exclusive license to use the design insofar as this concerns the right of disclosure and reproduction in accordance with the destination agreed at the time of the assignment. If no agreements have been made about the destination, the licensing is limited to that use of the design, for which there were established intentions at the time of the assignment was given. These intentions must demonstrably have been made known to the contractor before the conclusion of the agreement.
5.2 Wider use
Without the written permission of the contractor, the client is not entitled to use the design more broadly or in any other way than has been agreed. In the event of unconsioned wider or other use, including modification, garbling, or deterioration of the provisional or final design, the contractor is entitled to compensation for infringement of his / her rights of at least three-hundred percent (300%) the agreed fee, at least a compensation that is reasonably and fairly proportional to the infringement committed, without prejudice to the right of the contractor to claim compensation for the damage actually suffered for the deed actually suffered.
5.3 Prohibition of use
The client is no longer permitted to use the results made available and any license granted to the client in the context of the assignment will lapse:
from the moment that the client does not (fully) fulfil its (payment) obligations under the agreement or is otherwise in default, unless the client’s shortcoming is of minor significance in the light of the entire assignment;
if, for whatever reason, the assignment is terminated prematurely, unless the consequences thereof are contrary to reasonableness and fairness.
5.4 Own promotion
The contractor has, with due regard for the interests of the client, the freedom to use the design for his own publicity or promotion.
6 Fee and additional costs
6.1 Fee and additional costs
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 Fee for additional work
If the contractor is forced to perform more or other activities due to the late or non-delivery of complete, sound, and clear data / materials or by a changed or incorrect assignment or briefing, these activities must be honored separately, on the basis of the fee rates usually applied by the contractor.
7 Payment
7.1 Commitment to pay
Payments must be made within twenty (20) days of the invoice date. If, after the expiry of this period, the contractor has not yet received (full) payment, the client is in default, and he owes interest equal to the statutory interest. All costs incurred by the contractor, 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 least ten percent (10%) of the invoice amount with a minimum of Naf 350.00 excl. Sales tax.
7.2 Periodic payments
The contractor has the right to charge his monthly fee for work performed and costs incurred for the execution of the assignment.
7.3 No discount or set-off
The client makes the payments owed to the contractor without discount or set-off, except for set-off with deductible advances relating to the agreement, which he has provided to the contractor. The Client is not entitled to suspend payment of invoices for work already performed.
8 Termination and dissolution of the agreement
8.1 Termination of the agreement by the client
When the client terminates an agreement, he must, in addition to compensation, pay the fee and the costs incurred regarding the work performed until then.
8.2 Termination of the agreement by the contractor
If the agreement is dissolved by the contractor due to an attributable shortcoming in the performance of the agreement by the client, the client must, in addition to compensation, pay the fee and the costs incurred regarding the work performed until then. Conduct of the client based on which the contractor can no longer reasonably be expected to complete the assignment, are in this context also considered as an attributable shortcoming.
8.3 Compensation
The compensation referred to in the previous two paragraphs of this article will include at least the costs arising from the commitments entered by the contractor in his own name for the fulfillment of the assignment with third parties, as well as thirty percent (30%) of the remaining part of the fee that the client would owe upon full fulfillment of the assignment.
8.4 Bankruptcy
Both the contractor 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 the other party. In the event of bankruptcy of the client, the contractor has the right to terminate the provided right of use, unless the consequences thereof are contrary to reasonableness and fairness.
8.5 Attributable shortcoming
In the event of dissolution by the client due to attributable shortcoming in the fulfillment of the obligations by the contractor, the services already delivered, and the related payment obligation will not be the subject of undone, unless the client proves that the contractor is in default with regard to those services. Amounts that the contractor has invoiced before the dissolution in connection with what he has already properly performed or delivered in the execution of the agreement, remain due without prejudice to the provisions of the previous sentence and become immediately due and payable at the time of the dissolution.
8.6 Duration agreements
If the work of the contractor consists of repeatedly performing similar activities, then the applicable agreement will, unless otherwise agreed in writing, apply for an indefinite period. This agreement can only be terminated by written termination, with due observance of a reasonable notice period of at least 3 months.
9 Warranties and indemnities
9.1 Copyright holder
The contractor guarantees that the delivered goods have been designed by or on his/her site and that, if the design is copyrighted, he/she is regarded as a creator within the meaning of the Copyright Act and that the work can be used as the copyright holder.
9.2 Indemnification for claims m.b.t. use design
The client indemnifies the contractor or persons engaged by the contractor in the assignment against all claims of third parties arising from the applications or the use of the result of the assignment.
9.3 Materials and data provided
The client indemnifies the contractor against claims regarding intellectual property rights on materials or data provided by the client, which are used in the execution of the assignment.
10 Liability
10.1 Liability
The contractor is not liable for:
Errors or shortcomings in the material provided by the client.
Misunderstandings, errors, or shortcomings with regard to the execution of the agreement if these find their reason or cause in actions of the client, such as the late or non-delivery of complete, sound and clear data / materials.
Errors or shortcomings of third parties engaged by or on behalf of the client.
Defects in suppliers’ quotations or for exceeding quotations from suppliers.
Errors or shortcomings in the design or the text/data, if the client, in accordance with the provisions of Clause 2.5 has given its approval or has been given the opportunity to carry out an inspection and has not made use of it.
Errors or shortcomings in the design or the text/data, if the client has omitted the creation or execution of a certain model, prototype or test, and these errors would have been observable in such a model, prototype, or test.
10.2 The Contractor is only liable for direct damage attributable to it. Direct damage is only understood to mean:
Reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to the damage within the meaning of the GTC.
Any reasonable costs necessary to ensure that the contractor’s defective performance complies with the agreement
Reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to the limitation of the direct damage as referred to in the GTC.
The liability of the contractor for all other than the aforementioned damage, such as indirect damage, including consequential damage, loss of profit, garbled or decayed data or materials, or damage due to business stagnation, is excluded.
10.3 Limitation of liability
Except in the event of intent or deliberate recklessness on the part of the contractor or the management of the contractor – therefore excluding subordinates – the contractor’s total liability for direct damages under this agreement shall be limited to the lesser of (a) the fees paid by the client for the specific portion of work giving rise to the liability; or (b) thirty percent (30%) of the total project fees, subject to a maximum of NAf 2500.00.
10.4 Forfeiture of liability
Any liability lapses by the expiry of one year from the moment the assignment is completed.
10.5 Copies of materials
The client is obliged, if reasonably possible, to keep copies of materials and data provided by him until the assignment has been fulfilled. If the client fails to do so, the contractor cannot be held liable for damage that had not occurred when these copies existed.
11 Other provisions
11.1 Transfer to third parties
The client is not permitted to transfer any right from an agreement with the contractor to third parties, other than when transferring their entire business, unless the contractor provides prior written consent.
11.2 Confidential
The 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 subject to the same confidential treatment regarding such facts and circumstances emanating from the other Party.
11.3 Inscriptions
The headings of the GTC are only used to promote readability and do not form part of the GTC.
11.4 Dispute Resolution
Any dispute arising out of or in connection with this agreement shall be resolved through good-faith negotiations between the parties. If unresolved within 10 (ten) days, the dispute shall be referred to mediation via a locally established and mediation attorney, if accepted by the parties. If mediation fails, the dispute shall be resolved as specified in Section 11.5 of the GTC.
11.5 Curaçao Law, Dutch law
The agreement between the contractor and the client is governed by Curaçao law or Dutch law. The court to hear disputes between the contractor and the client is the competent court in the country of the Chamber of Commerce registration of the office of the contractor that provides the services to which the GTC apply, or the competent court according to the law, at the discretion of the contractor.