Fitbrand B.V. - Terms and conditions, April 2022.
1 Agreement, quotation and confirmation
1.1
These terms and conditions, to the exclusion of any purchase or other terms and conditions of the client, apply to the formation, content and fulfillment of all agreements entered into between the client and Fitbrand BV.
1.2
Quotations are without obligation and are valid for 30 days. Quotes and Price Quotes may undergo changes due to an unforeseen change in the work. Prices are exclusive of VAT and other government levies. Mentioned rates and offers do not automatically apply to future assignments.
1.3
Assignments must be confirmed by the client in writing. If the client fails to do so, but nevertheless agrees to Fitbrand BV commencing to carry out the assignment, then the contents of the quotation will be deemed to have been agreed. Further oral agreements and clauses are only binding for Fitbrand BV after they have been confirmed in writing by Fitbrand BV.
1.4
If the client wishes to give the same assignment to others than Fitbrand BV at the same time or has already given the assignment to another person, he must inform Fitbrand BV, stating the names of these others.
2 The execution of the agreement
2.1
Fitbrand BV will endeavor to carry out the assignment carefully and independently, to represent the client's interests to the best of its knowledge and to strive to achieve a result that is useful to the client. To the extent necessary, Fitbrand BV will keep the client informed of the progress of the work.
2.2
The client is obliged to do everything that is reasonably necessary or desirable to enable timely and correct delivery by Fitbrand BV, in particular by supplying (or having supplied) complete, sound and clear data or materials on time.
2.3
A deadline specified by Fitbrand BV for completion of the design is indicative in nature, unless the nature or content of the agreement indicates otherwise. The client must give written notice of default to Fitbrand BV in the event that the stated period is exceeded.
2.4
Unless otherwise agreed, performing tests, applying for permits and assessing whether instructions from the client comply with legal or quality standards are not part of Fitbrand BV's assignment.
2.5
Before proceeding with production, reproduction or publication, the parties must give each other the opportunity to check and approve the latest models, prototypes or proofs of the design. If Fitbrand BV, whether or not in the name of the client, is to give orders or instructions to production companies or other third parties, then the client must, at the request of Fitbrand BV, confirm its approval as referred to above in writing.
2.6
Complaints must be communicated in writing to Fitbrand BV as soon as possible, but in any case within ten working days of completion of the assignment, failing which the client will be deemed to have fully accepted the result of the assignment.
3 Engaging third parties
3.1
Unless otherwise agreed, assignments to third parties, within the framework of the realization of the design(s), will be given by or on behalf of the client. At the request of the client, Fitbrand BV can, at the expense and risk of the client, act as an agent. The parties can agree on a fee for this.
3.2
If Fitbrand BV provides an estimate for third party costs at the request of the client, this estimate will only be indicative in nature. If required, Fitbrand BV can request quotations on behalf of the client.
3.3
If, in the execution of the assignment, Fitbrand BV obtains goods or services from third parties at its own expense and risk in accordance with an explicit agreement, 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 respect to the quality, quantity, capacity and delivery of these goods or services will also apply against Fitbrand BV.
4 Intellectual property rights and proprietary rights
4.1
Unless otherwise agreed in the quotation, all intellectual property rights arising from the assignment - including patent rights, design rights and copyright - belong to Fitbrand BV. Insofar as such a right can only be acquired by filing or registration, Fitbrand BV is exclusively authorised to do so.
4.2
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 or portrait rights of third parties. The same applies to any investigation of the possibility of such forms of protection for the client.
4.3
Unless the work does not lend itself to this, Fitbrand BV is at all times entitled to mention or remove his/her name on or near the work (or have it mentioned) and the client is not permitted, without prior permission, to publish or reproduce the work without mentioning the name of Fitbrand BV.
4.4
Unless otherwise agreed, the working drawings, illustrations, prototypes, models, templates, designs, design sketches, website designs, films, photographs and other materials or (electronic) files created by Fitbrand BV in the context of the assignment remain the property of Fitbrand BV, regardless 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 Fitbrand BV have an obligation to each other to retain the materials and data used.
5 Use and license
5.1
When the client fully complies with his obligations under the agreement with Fitbrand BV, he is granted an exclusive license to use the design insofar as this concerns the right of publication and reproduction in accordance with the intended use agreed upon with the client. If no agreements are made about the intended use, then the license is limited to that use of the design for which firm intentions existed at the time the assignment was given. These intentions must be demonstrably made known to Fitbrand BV before the agreement is entered into.
5.2
Without written permission from Fitbrand BV, the client is not entitled to use the design more extensively or in any other way than agreed. In the case of non-agreed wider or other use, including alteration, mutilation or damage to the provisional or final design, Fitbrand BV is entitled to compensation due to infringement of his/her rights of at least three times the agreed fee, or at least a compensation that is reasonably and fairly proportional to the infringement committed, without prejudice to the right of Fitbrand BV to claim compensation for the actual damages incurred.
5.3
The client shall not be permitted (any longer) to use the results made available and any license granted to the client in the context of the assignment shall lapse:
a. from the moment that the client fails to (fully) comply with his (payment) obligations under the agreement or is otherwise in default, unless the client's default is of minor significance in light of the assignment as a whole;
b. if the assignment is terminated prematurely for any reason, unless the consequences thereof are contrary to reasonableness and fairness.
5.4
Fitbrand BV, with due regard to the interests of the client, is free to use the design for its own publicity or promotion.
6 Fee and incidental expenses
6.1
In addition to the agreed fee, any additional costs incurred by Fitbrand BV for the execution of the assignment will also be considered for reimbursement.
6.2
If Fitbrand BV is forced to perform more or other work as a result of late delivery or non-delivery of complete, sound and clear data/materials or as a result of an amended or incorrect assignment or briefing, such work will be charged separately, on the basis of the customary fees charged by Fitbrand BV.
6.3
If the fee is in any way dependent on facts or circumstances that must be evident from the client's accounts, Fitbrand BV is entitled, after a statement from the client, to have the client's accounts audited by an accountant chosen by Fitbrand BV. If the outcome of the audit by the accountant differs by more than 2% or € 120.00 from the statement and settlement by the client, the costs of this audit will be charged to the client.
7 Payment
7.1
Payments must be made within 21 days of the invoice date. If after the expiry of this period Fitbrand BV has not received (full) payment, the client is in default and owes interest at the statutory rate. All costs incurred by Fitbrand BV, such as legal costs and extrajudicial and judicial costs, including the costs of legal assistance, bailiffs and collection agencies, incurred in connection with late payment are for the account of the client. The extrajudicial costs are set at a minimum of 10% of the invoice amount with a minimum of € 150, - excluding VAT.
7.2
Fitbrand BV is entitled to charge its fee on a monthly basis for work performed and costs incurred in the execution of the assignment. Unless otherwise stipulated in the quotation.
7.3
The client will make the payments owed to Fitbrand BV without discount or settlement, except for settlement against offsettable advances related to the agreement, which the client has provided to Fitbrand BV. The client is not entitled to suspend payment of invoices for work already performed.
8 Termination and dissolution of the agreement
8.1
If the client terminates an agreement, he must pay, in addition to compensation, the fee and expenses incurred with respect to the work performed up to that time.
8.2
If the agreement is terminated by Fitbrand BV because of an attributable failure by the client to comply with the agreement, the client must, in addition to compensation, pay the fee and costs incurred in relation to the work carried out up until that point. Behavior by the client on the basis of which Fitbrand BV can no longer reasonably be required to complete the assignment is, in this context, also considered an attributable failure.
8.3
The compensation for damages referred to in the previous two paragraphs of this article will include at least the costs arising from obligations entered into by Fitbrand BV in its own name with third parties for the fulfillment 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.
8.4
Both Fitbrand BV and the client are entitled to immediately terminate the agreement in whole or in part in the event of bankruptcy or (provisional) suspension of payments of the other party. In case of bankruptcy of the client, Fitbrand BV is entitled to terminate the right of use granted, unless the consequences of this are contrary to reasonableness and fairness.
8.5
In the event of termination by the client due to an attributable failure by Fitbrand BV to comply with its obligations, the services already provided and the related payment obligation will not be subject to cancellation, unless the client proves that Fitbrand BV is in default with respect to those services. Amounts that Fitbrand BV has invoiced before the dissolution in relation to what it has already properly performed or delivered in the execution of the agreement remain due in full with due observance of the provisions in the previous sentence and become immediately payable at the time of the dissolution.
8.6
If the work of Fitbrand BV consists of the repeated performance of similar work, then, unless otherwise agreed in writing, the applicable agreement will be for an indefinite period of time. This agreement can only be terminated by written notice, taking into account a reasonable notice period of at least three months.
9 Warranties and indemnities
9.1
Fitbrand BV guarantees that the work supplied has been designed by it or on its behalf and that, if there is copyright on the design, it is deemed to be the creator in the sense of the Copyright Act and as the copyright owner can dispose of the work.
9.2
The client indemnifies Fitbrand BV or persons engaged by Fitbrand BV in the course of the assignment against all claims by third parties arising from the applications or use of the result of the assignment.
9.3
The client indemnifies Fitbrand BV 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
Fitbrand BV is not liable for:
a. errors or deficiencies in the materials provided by the client.
b. misunderstandings, errors or shortcomings regarding the execution of the agreement if they have their origin or cause in acts of the client, such as failure to provide complete, sound and clear data/materials on time or at all.
c. errors or shortcomings of third parties engaged by or on behalf of the client.
d. defects in suppliers' quotations or for exceeding suppliers' quotations.
e. errors or shortcomings in the design or text/data, if the client, in accordance with the provisions of Article 2.5 has given his approval, or has been given the opportunity to carry out a check and has not availed himself of it.
f. errors or shortcomings in the design or text/data, if the client omitted to create or have a particular model, prototype or test performed, and these errors would have been observable in such model, prototype or test.
10.2
Fitbrand BV is only liable for direct damage attributable to it. Direct damages only include:
a. reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage in the sense of these terms and conditions;
b. any reasonable costs necessary to make the defective performance of Fitbrand BV conform to the agreement;
c. reasonable costs incurred to prevent or limit damage, to the extent that the client demonstrates that these costs have led to a limitation of the direct damage referred to in these general terms and conditions.
Liability of Fitbrand BV for all damages other than the above, such as indirect damages, including consequential damages, lost profits, mutilated or lost data or materials, or damages due to business stagnation, is excluded.
10.3
Except in the case of intent or deliberate recklessness on the part of Fitbrand BV or the management of Fitbrand BV - therefore excluding subordinates -, the liability of Fitbrand BV for damages arising from an agreement or an unlawful act committed against the client is limited to the invoice amount for the part of the assignment that has been carried out, less the costs incurred by Fitbrand BV for the engagement of third parties, on the understanding that this amount will not exceed € 45.000 and in any case always limited to a maximum of the amount paid by the insurer to Fitbrand BV in the relevant case.
10.4
Any liability shall expire by the lapse of one year from the time 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 completed. If the client fails to do so, Fitbrand BV 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 permitted to transfer any right under an agreement entered into with Fitbrand BV to third parties, other than in the case of transfer of its entire business.
11.2
The parties are bound to treat as confidential facts and circumstances which come to the knowledge of the other party in the context of the assignment. Third parties involved in the performance of the assignment will be bound to the same confidential treatment with respect to these facts and circumstances originating from the other party.
11.3
The headings in these terms and conditions are for readability purposes only and do not form part of these terms and conditions.
11.4
The agreement between Fitbrand BV and the client is subject to Dutch law. The judge to hear disputes between Fitbrand BV and the client is the competent judge in the district where Fitbrand BV has its registered office, or the competent judge according to the law, at the discretion of Fitbrand BV.
