LUKKIEN GENERAL TERMS AND CONDITIONS
Article 1. Definitions
In these General Terms and Conditions, the following terms will have the following meanings:
1.1 General Terms and Conditions: the terms and conditions of Lukkien B.V. set out below;
1.2 Intellectual Property: copyrights (including personality rights), source codes, neighbouring rights, database rights, trade secrets, know how, patent rights, drawing and design rights, trade name rights, trade mark rights, rights concerning topographies of semi conductor products, utility model rights in the broadest sense and any other intellectual property rights or related rights;
1.3 Contractor: Lukkien B.V., with its registered office at Copernicuslaan 15 in (6716 BM) Ede, listed in the Chamber of Commerce under number 09064424 and Lukkien Casting B.V., also with its registered office at the aforementioned address, listed in the Chamber of Commerce under number 09044732, and/or any of the legal entities affiliated with them;
1.4 Client: the natural person or legal entity that has given the Assignment to the Contractor;
1.5 Assignment: the assignment set out in writing in the Agreement between the parties;
1.6 Agreement: an agreement relating to the delivery or provision of goods by the Contractor to the Client and/or the performance of services of whatever nature and however termed;
1.7 Software: the software furnished by the Contractor to the Client, including, but not limited to, websites and/or software or other applications, including third party software or other applications which constitute part of this;
1.8 Items/Item: tangible objects, including, but not limited to, data carriers, such as stored data, supplies, mood boards, designs, campaign materials, packaging materials, props and consumable items.
Article 2. Agreement, quote and confirmation
2.1 These General Terms and Conditions, to the exclusion of any purchasing or other terms and conditions of the Client, apply to the formation, content and performance of any agreements concluded between the Contractor and the Client.
2.2 Any quotes or offers of the Contractor will be non binding and will be valid for four weeks after the date of the quote or offer. Assignments based on quotes will only be binding on the Contractor if it has confirmed them in writing.
2.3 If the Client cancels an offer or quote, in whole or in part, it must pay for the preparatory and other work performed by the Contractor in connection with this. This obligation on the Client to pay will also apply if it was unaware that the Contractor had already begun the assigned or preparatory work.
2.4 Deviations from and/or additions to these General Terms and Conditions will only be valid if they have expressly been agreed in writing (including digitally) by the parties.
2.5 If any provision in these General Terms and Conditions turns out to be invalid or is nullified, the other provisions in these General Terms and Conditions will remain in full force, and the Client and Contractor will consult each other to agree new provisions to replace the invalid or nullified provision, with the purpose and effect of the invalid or nullified provision being taken into account as much as possible.
2.6 The Contractor may modify or supplement its General Terms and Conditions, or delete parts of them, at any time it so requires and without prior notice. Changes will be announced to the Client in writing or by email. They will take effect one (1) week after the announcement.
Article 3. Performance of Agreement
3.1 The Contractor will endeavour to perform the Assignment with due care, represent the Client’s interests to the best of its knowledge and strive towards a result which the Client can use. Insofar as necessary, the Contractor will keep the Client informed about the progress of the work. The Client must do everything that is reasonably necessary or desirable to enable the timely and proper delivery by the Contractor, in particular by furnishing complete, proper and clear data or materials (or having these furnished) in good time.
3.2 The Contractor does not under any circumstances guarantee results, returns or profitability.
3.3 Any period indicated by the Contractor for carrying out the Assignment is only indicative. If the stated period is exceeded, the Client must provide the Contractor with a written notice of default.
3.4 Unless expressly agreed otherwise, the Contractor’s Assignment will not include conducting tests, applying for permits/licences or assessing whether the Client’s instructions comply with statutory provisions or quality standards.
3.5 Complaints must be reported to the Contractor in writing as soon as possible, but in any event within ten (10) business days after the Assignment is completed. Failing this, the Client will be deemed to have accepted the result of the Assignment in full.
3.6 The Client indemnifies the Contractor against any third-party claims ensuing from the applications and/or the use of the result of the Assignment.
Article 4. Engaging third parties
4.1 Unless otherwise agreed, assignments to third parties in connection with the formation of the Assignment will be furnished by or on behalf of the Client. At the Client’s request, the Contractor may, at the Client’s expense and risk, act as an agent. The parties may stipulate a fee for this to be agreed later.
4.2 If, at the Client’s request, the Contractor formulates a budget for third party costs, this budget will only be indicative. If desired, the Contractor may request quotes from third parties for the Client.
4.3 If, in performing the Assignment, the Contractor, in accordance with an explicit agreement, procures goods or services from third parties at its own expense and risk, after which these goods or services are passed on to the Client, the provisions in the supplier’s general terms and conditions about the quality, quantity, properties and delivery of these goods or services will likewise apply to the Client.
4.4 The Client may not transfer rights or obligations ensuing from the Agreement to third parties without the Contractor’s written permission.
4.5 The Client indemnifies the Contractor against any claims by third parties that suffer damage as a result of the performance of the Agreement and which claims are imputable to the Client.
Article 5. Intellectual Property Rights
5.1 The Intellectual Property rights to the products and/or services developed and delivered by the Contractor in the context of the Agreement will continue to be held solely by the Contractor or the third party from which the Contractor has obtained the user rights. Insofar as necessary for the Client to use the products and/or services delivered by the Contractor, the Contractor will grant the Client, in writing, a limited, non-exclusive, non-transferable and – subject to a written agreement to the contrary – non-sub-licensable right to use the Intellectual Property Rights to these products and/or services.
5.2 If the Contractor is prepared to undertake to transfer an Intellectual Property right, such commitment and transfer may only be entered into expressly and in writing. If the parties agree in writing that an Intellectual Property right regarding specific Software, data files, equipment or other Items developed for the Client will pass to the Client, a split off Intellectual Property right will arise, meaning that the Contractor’s right or option to continue using and/or exploiting (either for itself or for third parties, and without any limitation for other purposes) the components, general principles, ideas, designs, algorithms, documentation, documents, works, programming languages, protocols, standards and such like underlying this development will not be affected. Nor will such split off of an Intellectual Property right affect the Contractor’s right to effect developments for itself or third parties which are similar to or derived from those effected for the Client.
5.3 The Contractor may indicate or remove its name (or have its name indicated or removed) on or by the work at any time. If the Contractor has placed designations on the products and/or services delivered by it which show that it holds the Intellectual Property rights, the Client may not remove or modify them.
5.4 Even if the Agreement does not expressly provide for such a right, the Contractor may apply technical measures to protect the Software, equipment, data files and such like in connection with an agreed limitation on the substance or duration of the right to use these objects. The Client may never remove or circumvent these technical measures (or have them removed or circumvented).
5.5 Unless agreed otherwise, conducting an investigation into the existence of Intellectual Property rights, including, but not limited to, third party patent rights, trade mark rights, design rights, copyrights or portrait rights, will not be part of the Assignment. The same applies to any investigation into the possibility of such forms of protection for the Client.
5.6 The Client warrants that there are no third party rights which preclude it from providing the Contractor with equipment, Software, materials intended for websites (visual materials, tests, music, domain names, logos, hyperlinks and so forth), data files or other materials, including drafts and design materials, for the purpose of using such for adaptation, installation or combination (for example, in a website). The Client indemnifies the Contractor against any claim by a third party based on the allegation that such provision, use, adaptation, installation or incorporation infringes any right of that third party.
5.7 Unless agreed otherwise, the Contractor will continue to own the working drawings, illustrations, prototypes, models, moulds, designs, design sketches, mood boards, texts, films, photographs and other materials or electronic or other files developed by the Contractor in the context of the Assignment or the prior quote, irrespective of whether these have been furnished to the Client or third parties.
5.8 After the Assignment is completed, neither the Client nor the Contractor will have any duty to each other to retain the materials and/or data used.
Article 6. Use and license
6.1 If the Client completely fulfils its payment and other obligations under the Agreement with the Contractor, it will acquire a licence to use the design insofar as this pertains to the right of disclosure and reproduction consistent with the intended use agreed in the Assignment. If agreements have not been made about the intended use, the granting of the licence will be limited to that use of the design for which definite intentions existed when the Assignment was given. These intentions must demonstrably have been communicated to the Contractor before the Agreement was entered into.
6.2 Unless it receives written permission from the Contractor, the Client may not use the design (or have it used) in a broader or different way than agreed. If broader or different use, including modification, mutilation or impairment of the provisional or final design, has not been agreed, the Contractor will be entitled to compensation on account of infringement of its rights equal to at least three times the agreed fee, or at least compensation which is reasonably and fairly related to the infringement committed, without prejudice to the Contractor’s right to seek compensation for the damage actually suffered.
6.3 The Client may not (or may no longer) use the results provided, with each licence furnished to the Client in the context of the Assignment being extinguished as well:
a. from the time that the Client does not or does not completely fulfil its payment and other obligations under the Agreement or is otherwise in default, unless the breach by the Client is of minor significance in light of the Assignment as a whole;
b. if, for whatever reason, the Assignment is terminated prematurely, unless the consequences of this would be inconsistent with the principle of reasonableness and fairness.
6.4 With due observance of the Client’s interests, the Contractor will be free to use the design for its own publicity, references or promotion purposes.
Article 7. Privacy, data processing and security
7.1 If the Contractor processes personal data for the Client, the parties will conclude a data processing agreement with each other.
7.2 If the Contractor deems this relevant to performing the Agreement, the Client will, upon request, immediately inform the Contractor in writing about the way in which the Client is carrying out its statutory obligation concerning the protection of personal data.
7.3 The Client indemnifies the Contractor against claims by persons whose personal data has been or will be processed as part of the processing carried out by the Client or for which the Client is otherwise responsible by law, unless the Client proves that the facts underlying the claim must solely be attributed to the Contractor.
7.4 The Client will solely be responsible for the data processed using a service provided by the Contractor. The Client warrants to the Contractor that the content, use and/or processing of the data is not unlawful and does not infringe any third party right. The Client indemnifies the Contractor against any legal claims by third parties on any account whatsoever in connection with this data or the performance of the Agreement.
7.5 If, under the Agreement, the Contractor must provide information security, such security will conform to the specifications on security agreed by the parties in writing. The Contractor does not warrant that the information security will be effective in all circumstances. If a form of security is not expressly described in the Agreement, the security must be at a level that, given the state of the art, the sensitivity of the data and the costs associated with providing the security, is not unreasonable.
7.6 If computer, data or telecommunications facilities are used to carry out the Agreement or otherwise, the Contractor may assign the Client access or identification codes. The Contractor may change access or identification codes. The Client will treat the access and identification codes as confidential and with due care and will only disclose them to authorised employees. The Contractor is never liable for damage or costs ensuing from the use or misuse of access or identification codes, unless the misuse was possible as a direct result of a culpable breach or negligence by the Contractor.
Article 8. Fee and payment
8.1 All the prices applied by the Contractor are exclusive of turnover tax (VAT) and other government levies imposed. Besides the agreed fee, the costs that the Contractor incurs in performing the Agreement will also be payable.
8.2 Unless otherwise agreed in writing, any prices indicated by the Contractor will always be in euros, and the Client must make all payments in euros.
8.3 If, due to the non-delivery or non timely delivery of complete, proper and clear data/materials or due to a modified or incorrect Assignment or briefing, the Contractor needs to perform additional or other work, this work will be considered contract extras to which the rates normally applied by the Contractor will apply. This will also apply to the delivery of goods and/or the performance of work and services not mentioned in the quote or agreed later in writing.
8.4 The Contractor may charge its fee for work carried out and costs incurred in performing the Assignment on a monthly basis.
8.5 Unless otherwise agreed in writing, the Client will pay the Contractor’s invoice within thirty (30) days of the invoice date.
8.6 If the Client does not pay within the period stated in Article 8.5, it will be in default by operation of law and, without a further notice of default, it will owe statutory interest on the total invoice amount. With respect to commercial transactions, the statutory interest under Section 6:119a of the Dutch Civil Code (“DCC”) will be owed.
8.7 If, under the Agreement, the Client consists of multiple natural persons and/or legal entities, each of these persons and/or entities will be jointly and severally liable to the Contractor for performing the Agreement.
8.8 Unless the parties agree otherwise in writing, the Contractor will not start the work until the advance invoice has been paid by the Client.
8.9 If payment is to be made in instalments, the Contractor may, in the event of non timely payment by the Client, temporarily suspend the services and/or products delivered by it. In that instance, the Contractor may institute a “freeze”, meaning that the Client will not be able to obtain access to or have these services and/or products at its disposal on a temporary basis.
8.10 The Client is never entitled to set off the amount owed by it to the Contractor.
8.11 Objections to the amount of an invoice do not suspend the payment obligation. Clients not entitled to invoke Part 6.5.3 (Sections 231 to 247, Book 6, DCC) will not be entitled to suspend the payment of an invoice for any other reason either.
8.12 If the Client is in default or fails to fulfil its obligations (temporarily or otherwise), any reasonable costs to obtain extrajudicial payment will be borne by the Client. The extrajudicial costs will be calculated on the basis of what is customary in Dutch collection practice. The Dutch Extrajudicial Collection Costs (Fees) Decree [Besluit vergoeding voor Buitengerechtelijk Incassokosten] will apply to this. If, however, the Contractor has incurred higher collection costs which were reasonably necessary, the costs actually incurred will be payable. Any court or enforcement costs incurred will likewise be recovered from the Client. The Client will also owe interest on the collection costs owed.
Article 9. Retention of title
9.1 Any Items delivered to the Client will remain the Contractor’s property until all amounts the Client owes to the Contractor under the Agreement have been paid to the Contractor in full.
9.2 The Contractor may maintain possession of the data, documents, Software and/or data files received or created in the context of the Agreement until the Client has paid all amounts owed to the Contractor, regardless of any existing obligation to deliver or transfer these objects.
Article 10. Termination and rescission of the Agreement
10.1 If the Client terminates the Agreement, it must pay the agreed fee and any supplemental third-party costs incurred for the work performed up to then by the Contractor, minus any costs saved by the Contractor as a result of termination.
10.2 If the Contractor rescinds the Agreement because the Client breaches the Agreement, the Client must pay the agreed fee and the costs incurred for the work performed up to then, plus the lost profits. Acts by the Client which mean that the Contractor can no longer be required to complete the Assignment will also be viewed as breaches in this respect.
10.3 Both the Contractor and the Client will be entitled to immediately rescind the Agreement in whole or in part in the event of the other party’s liquidation/bankruptcy or a suspension of payments being applied to the other party.
10.4 If the Assignment is terminated prematurely for whatever reason, the Client may not (or may no longer) use the materials and/or designs furnished to it and any licence provided to the Client in connection with the Assignment will be extinguished, unless expressly agreed otherwise in writing.
10.5 If the Contractor’s work consists of repeatedly performing the same type of work, the applicable Agreement will apply for an indefinite period of time, unless otherwise agreed in writing. This Agreement may only be terminated through written notice, subject to a reasonable notice period of at least six (6) months.
Article 11. Liability
11.1 Except in the case of wilful misconduct or deliberate recklessness by the Contractor’s managers, the Contractor’s liability for damage on account of the Agreement or an unlawful act committed against the Client will be limited to the invoice amount relating to the part of the Assignment to be carried out, minus the costs incurred by the Contractor for engaging third parties, on the understanding that this amount will never exceed EUR 250,000 (in words: two hundred and fifty thousand euros) and will in any event be limited at all times to at most the amount that the Contractor’s liability insurer pays out in the particular case.
11.2 Any liability will be extinguished one (1) year after the Assignment is completed.
11.3 If reasonably possible, the Client must keep copies of the data and materials provided by it until the Assignment is finished. If the Client does not do this, the Contractor may not be held liable for damage which would not have occurred if those copies had existed.
11.4 The Contractor is only liable for direct damage which is imputable to it. Direct damage solely means:
a. reasonable costs to determine the cause and scope of the damage, insofar as the determination pertains to damage within the meaning of these General Terms and Conditions;
b. any reasonable costs necessary to have the Contractor’s deficient performance conform to the Agreement;
c. the reasonable costs incurred to avoid or limit damage, insofar as the Client demonstrates that these costs limited the direct damage referred to in these General Terms and Conditions.
11.5 The Contractor is not liable for any indirect damage, including, but not limited to, consequential damage, lost profits, mutilated or lost data or materials, damage due to business interruptions, or cybercrime.
Article 12. Confidentiality
12.1 The parties undertake to treat the detailed substance of the Agreement as confidential. This provision does not apply to the Contractor if and insofar as the data in question must be provided to a third party under a court decision or statutory requirement or for the Agreement to be performed properly.
12.2 The parties will treat the information which they give to each other before, during or after the performance of the Agreement as confidential if this information has been marked as confidential or if the receiving party knows or could reasonably suspect that the information was intended to be confidential. The parties will also impose this obligation on their employees and third parties engaged by them to perform the Agreement.
Article 13. Disputes and applicable law
13.1 Dutch law applies to all Agreements between the Contractor and the Client.
13.2 The District Court of Gelderland, the Netherlands, Arnhem location, will have exclusive jurisdiction to hear disputes ensuing from or relating to the Agreement between the Contractor and the Client.