These General Terms of La Terzi B.V. (hereinafter: “La Terzi”) have been registered at the Chamber of Commerce in the Netherlands under the number 64927342.
Clause 1. Definitions
The following terms shall have the meaning herein assigned to them:
- Agreement: the entire content of these General Terms and the offered document(s) concerning the Project and/or the sale and delivery of Products and/or granting of the License.
- Client: the (legal) person or entity entering in to an agreement with La Terzi.
- Client Content: all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
- Client Products: the products of Client delivered under the Trademark(s);
- Deliverables: the services and work product specified in the offer to be delivered by La Terzi to Client, in the form and media specified in the offer.
- Final Art: all creative content developed or created by La Terzi, or commissioned by La Terzi, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, but not limited to, any and all visual designs visual elements, graphic design, illustration, photography, typographic treatments and text, modifications to Client Content, and La Terzi’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
- Final Deliverables: the final versions of Deliverables provided by La Terzi and accepted by Client.
- General Terms: the present General Terms of La Terzi.
- La Terzi: the designer La Terzi B.V., a private limited liability company organized under the laws of the Netherlands, with offices at Veenendaal, at the Lunet 10, 3905 NW in The Netherlands, registered with the Dutch Chamber of Commerce under the number 64927342 (KvK).
- License: the granting of a non-assignable right and license to use the Trademarks;
- Preliminary Works: all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by La Terzi and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
- Products: the products of La Terzi delivered under its Trademark(s);
- Project: the scope and purpose of the Client’s identified usage of the work product as described in the offer or in another proposal.
- Services: all services and the work product to be provided to Client by La Terzi as described and otherwise further defined in the Proposal.
- Third Party Materials: proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
- Trademarks: all registered or to be registered trademarks, trade names, words, symbols, designs, logos or other devices or designs of La Terzi.
Clause 2. Applicability
- he General Terms shall apply to all offers, proposals, Agreements and contracts of La Terzi, unless stated otherwise.
- The General Terms govern all offers and the preparation, content and performance of all Agreements concluded between Client and La Terzi.
- These General Terms shall apply with the express rejection of Client’s and/or any other third party’s general terms.
- Invalidity or unenforceability of any of the provisions of the Agreement and/or the General Terms, shall not impair the validity of the remaining provisions. Should any provision of the Agreement and/or General Terms prove to be invalid or unenforceable, the Parties agree that it shall be replaced with a legal, valid and enforceable provision which has the same or the most equivalent legal and/or economic effect.
- La Terzi may change the terms of the General Terms without Client’s consent from time to time.
Clause 3. Offers
- Offers are given based on information and specifications provided by the Client, and are based on the Services and/or delivery of Products within normal terms and under normal circumstances.
- Client cannot derive any rights from any errors in an offer.
- The offers and quotations made by La Terzi are without engagement nor with the effect that the offer constitutes a binding agreement between La Terzi and the recipient of the offer. Furthermore, the aforementioned offer is only valid for thirty (30) days from the date stipulated thereon unless specified otherwise.
- The formation of an Agreement takes place by the Client’s written acceptance of the offer, provided that La Terzi may revoke the offer within three (3) days of receipt of the acceptance, in which case no agreement shall be deemed to be formed.
- If Client places a Project and/or Product order, which is binding for Client, the Agreement will be concluded at the moment of acceptance of the order by La Terzi, notwithstanding La Terzi’s the right to revoke its acceptance, in which case no agreement shall be deemed to be formed.
Clause 4. Performance
- La Terzi undertakes to perform the Services to the best of her knowledge, ability, and expertise, keeping in mind the Client’s stated purpose of the Project.
- Unless expressly stipulated otherwise, the agreed lead or delivery time in the offer is an estimate.
- La Terzi will prioritize performance of the Services as may be necessary or as identified in the offer, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the offer.
- La Terzi shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services.
- Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to La Terzi.
- La Terzi shall be entitled to request written clarification of any concern, objection or correction. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and La Terzi will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the General Terms. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
Clause 5. Delivery of Products
- The terms of this clause shall only apply in addition, and having precedence, in case La Terzi sells and delivers Products to Client under the Agreement.
Unless otherwise confirmed by La Terzi in writing, delivery shall be made FCA (Incoterms 2010).
- All dates quoted for delivery of the Products shall be approximate only, and La Terzi shall not be liable for any losses or damages suffered by Client due to any delay in delivery or non-delivery of the Products howsoever caused.
- If Client fails to take timely delivery of the Products – or if, where Client is to give delivery instructions, Client fails to give such instructions – La Terzi shall at its discretion either extend the time of delivery or shipment of the Products, storing the Products at Client’s risk and cost until actual delivery or cancel the Contract or any part thereof, in either event without prejudice to any other right or remedy available to La Terzi.
- Client undertakes to abide strictly by the instructions of La Terzi in respect of the customs handling of the Products and to provide to La Terzi, as and when requested by La Terzi, all relevant documents, including but not limited to export/import documents from EU member states and/or third country required for the entitlement to export refunds or other subsidies. Client shall be liable for and shall hold La Terzi and its affiliates harmless from and against all costs and losses suffered or incurred by La Terzi and its affiliates as a result of Client’s breach of this undertaking.
- Immediately upon receipt of the Products the Client shall carry out a thorough examination of the Products in order to ascertain whether the Products are in conformity with the Agreement and complete.
- The Client shall lose the right to rely on non-conformity or loss of the Products if Client fails to notify La Terzi thereof in writing without any delay, but within seven (7) calendar days of receipt of the Products, specifying the nature of the non-conformity or loss, or as soon as possible after Client has discovered or ought to have discovered such nonconformity or loss.
- itle to the delivered Products only passes to Client once La Terzi has received all payments which have been invoiced to Client in connection with the delivery of the Products.
- In the event of late payment, La Terzi shall be entitled to repossess or arrange for the return of any Products delivered without further notice of default and without legal intervention. Client authorizes La Terzi in advance to access all sites in and around the Client’s business to this end.
- Client shall be responsible for complying with any and all legislation, administrative rules and/or regulations governing the importation of the Products into the country of distribution and the subsequent processing, marketing, distribution, resale and/or use hereof.
Clause 6. Client responsibilities
- Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
- coordination of any decision-making with parties other than La Terzi;
- provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the offer;
- provision of other accurate and complete information and materials requested by La Terzi and final proofreading
- and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
- Client acknowledges and agrees that La Terzi’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the offer and that any delays in Client’s performance or changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or La Terzi’s obligations under the General Terms or the Agreement.
- Client represents, warrants and covenants to La Terzi that:
- Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
- to the best of Client’s knowledge, the (use of) Client Content in connection with the Project does not infringe the rights of any third party,
- Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
- Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
- Client agrees to indemnify, save and hold harmless La Terzi from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations under the Agreement.
Clause 7. Changes
- Unless otherwise provided in the offer, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at La Terzi’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the offer, despite any maximum budget, contract price or final price identified therein. La Terzi may extend or modify any delivery schedule or deadlines in the offer and Deliverables as may be required by such Changes.
- If Client requests or instructs Changes that amount to a revision in or near excess of fifty percent (50%) of the time required to produce the Deliverables, and or the value or scope of the Services, La Terzi shall be entitled to submit a new and separate offer to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by La Terzi.
Clause 8. Fees and charges
- In consideration of the Services to be performed by la Terzi, the License granted and/or the Products delivered, Client shall pay to La Terzi fees in the amounts and according to the payment schedule set forth in the offer, and all applicable sales, use or value added taxes (VAT).
- Client shall pay La Terzi’s expenses incurred in connection with the Agreement as follows: incidental and out-of-pocket expenses including but not limited to costs for postage, shipping, courier, service bureaus, printing, blueprints, models, presentation materials, photocopies, computer expenses, and, if applicable, travel reimbursement per kilometer (including parking fees and tolls) or other travel expenses (including transportation, meals, and lodging) incurred by La Terzi with Client’s prior approval.
- The Project pricing includes La Terzi’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, agency fees, licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the offer.
Clause 9. Payment
- All invoices are payable within fourteen (14) days of receipt, unless specified otherwise in any written Agreement between La Terzi and Client.
- Unless agreed otherwise, any payments under the Agreement shall be effected to La Terzi’ bank account by wire transfer or another payment method agreed to by the Client and La Terzi.
- The currency of all payments is in EURO, unless another currency is stated in the Agreement or invoice.
- If payments are not made punctually the Client will be in default (“in verzuim”) by operation of the law.
- A monthly service charge of one percent (1%) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance.
- Client shall be responsible for all collection or legal fees necessitated by default in payment.
- La Terzi reserves the right to suspend (“opschorten”) delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under the Agreement (including a License), are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding additional costs, taxes, expenses, and fees, charges, or the costs of changes.
- To the extent permitted by applicable law, the Client shall not be entitled to assert any rights to set-off claims against his payment obligations under the Agreement. The payment obligation under the Agreement is absolute and unconditional.
Clause 10. Term, default and termination
- The Agreement shall commence upon the acceptance of the offer and shall remain effective until the Services and/or the delivery of Products are completed and delivered.
- In case the Agreement concerns the granting of a License, it is concluded for an indefinite period unless its contents, nature or effect imply that it was concluded for a definite period. In such a case a notice period shall apply to each of the parties of three (3) calendar months. Notice of termination must be given in writing. La Terzi shall under no circumstances be obliged to pay any compensation as a result of termination of the Agreement.
- If La Terzi has cause to suspect that the Client will be unable to perform its obligations under the Agreement, Client is obligated to provide, upon La Terzi’s first request, sufficient security for complete performance of all its obligations with regard to the Agreement, in a manner to be indicated by La Terzi.
- Without prejudice to any other right or remedy available to La Terzi, La Terzi is entitled to terminate (“ontbinden”) the Agreement with immediate effect by notice in writing in the following events:
- If after the conclusion of the Agreement La Terzi doubts the necessary liquidity of the Client and the Client cannot dispel such doubts by providing adequate supporting documents or sufficient security;
- If a receiver, trustee, conservator or liquidator of the Client of all or a substantial part of its assets is appointed;
- If the Client is declared bankrupt or granted suspension of payments, or if an application to that end is filed; or
- If the Client’s business is liquidated or discontinued.
- If the Client is in default (“in verzuim”), by breaching any of its material responsibilities or obligations under the Agreement which breach is not remedied within ten (10) days from receipt of a written notice (“ingebrekestelling”) specifying the thing or matter in default.
- In the event of termination, La Terzi shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by La Terzi or La Terzi’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any additional costs incurred through and up to, the date of cancellation.
- Upon expiration or termination of the Agreement each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and other than as provided herein, all rights and obligations of each party under the Agreement, exclusive of the Services, shall survive.
Clause 11. Confidential information
- Each party acknowledges that in connection with the Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works.
- Each party, its agents and employees shall hold and maintain in strict confidence all confidential information, shall not disclose confidential information to any third party, and shall not use any confidential information except as may be necessary to perform its obligations under the offer except as may be required by a court or governmental authority.
- Notwithstanding the foregoing, Confidential information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
Clause 12. Accreditation/promotion
- All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in La Terzi’s name in the form, size and location as incorporated by La Terzi in the Deliverables, or as otherwise directed by La Terzi.
- La Terzi retains the right to reproduce, publish and display the Deliverables in La Terzi’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
- La Terzi may describe its role in relation to the Project and, if applicable, the Services provided to the Client on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
Clause 13. Intellectual property
- Client Content, including all pre-existing trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to La Terzi a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with La Terzi’s performance of the Services and limited promotional uses of the Deliverables as authorized in the Agreement.
- All Third Party Materials are the exclusive property of their respective owners. La Terzi shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances La Terzi shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein.
- In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless La Terzi from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
- La Terzi retains all (Copy)rights in and to all Preliminary Works. Client shall return all Preliminary Works to La Terzi within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of La Terzi.
- La Terzi retains all (Copy)right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to La Terzi within thirty (30) days of completion of the Services.
- La Terzi retains all rights, title and interest in and to all of its Trademarks.
- Unless otherwise agreed, La Terzi grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Art and/or Trademarks solely in connection with the Project as defined in the offer and in accordance with the various terms and conditions of the Agreement and the General Terms. The rights granted to Client are for usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.
- All goodwill associated with the use of the Final Art and/or Trademarks shall accrue to La Terzi.
- If Client becomes aware of any third party infringing or attempting to infringe any rights in and to the Trademarks or other intellectual property rights of La Terzi, than Client shall notify La Terzi immediately after such alleged infringement has come to its knowledge, and shall give all such help and assistance to La Terzi as it shall reasonably request in deciding whether to proceed against the alleged infringer in respect of such alleged infringement and in prosecution of any such proceedings that La Terzi may decide to take.
- Client shall take no proceedings against any alleged infringement except at the direction of La Terzi. However, La Terzi shall not be obliged to proceed against any alleged infringement and shall not be liable to Client in any way for not doing so.
- Client shall notify La Terzi of any claim or proceedings made, threatened or started by any third party against Client, whether for damages, and injunction or otherwise, arising out of the exploitation by Client of the rights granted by the Agreement, immediately after any such claim or proceeding is made, threatened or started, and Client shall permit La Terzi to participate in its defense.
Clause 14. License
- The terms of this clause shall only apply in addition, and having precedence, in case La Terzi grants Client a separate License to use the Trademarks in connection with the manufacture, packaging, sale, marketing and distribution of Client Products, as defined in the offer and in accordance with the various terms and conditions of the Agreement.
- La Terzi is entitled to limit the use of the Trademarks to a geographical area.
- The Client shall pay La Terzi the royalty rate as specified in the offer. La Terzi shall be entitled to terminate the Agreement forthwith by notice in writing if Licensee shall have failed to pay royalties within thirty (30) days of their due date.
- Within 30 days following 31 March, 30 June, 30 September and 31 December of each calendar year during the term of the Agreement, Client shall submit to La Tezi a sales report. Each report shall specify, with respect to the preceding quarterly period, the total gross amount invoiced by Client on all sales of Client Products under the Trademarks.
- To enable verification of the report, Client shall keep complete and accurate books and records relating to the purchase, manufacture, sale and other disposal of any Client Product and shall keep these books and records available for a period of five (5) years following the purchase, manufacture, sale or other disposal of such Client Product.
- La Terzi shall have the right to inspect the books and records of Client from time to time to verify the report.
- Any such inspection shall be conducted by a certified public auditor appointed by La Terzi. Client shall willingly cooperate and provide all such assistance in connection with such inspection.
- La Terzi’s right of inspection shall survive termination or expiration of the License Agreement for a period of five (5) years following the termination or expiration.
- Unless otherwise agreed, in case of (early) termination of the License Agreement a phasing-out period of six (6) months applies. During the phasing-out period Client is allowed to sell its inventory of the Client Products. Client is not allowed to manufacture new Client Products during this period. For the avoidance of doubt, the provisions regarding Client’s royalty obligations and other post contractual obligations regarding the audit and financial control in accordance with the License Agreement will remain in force during the phasing-out period.
Clause 15. Limitation Liability
- La Terzi’s total liability ensuing from or relating to the Agreement will be limited to at most the amounts paid by Client to La Terzi in connection with the delivery Products, the License, Services and the work product.
- La Terzi will not be liable for loss or damages that Client suffers on account of the Client’s use of the Products, License, Services, Final Deliverables and the work product or on account negative publicity.
- In all circumstances, the maximum liability of La Terzi to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the maximum overall amount that La Terzi’s liability insurer will pay out in the particular case, even if held to amount to a breach of La Terzi’s obligations under the Agreement. Client shall indemnify defend and hold harmless La Terzi for such claims in excess of this amount.
- In no event shall La Terzi be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental special, consequential, reputational, exemplary or punitive damages arising out of or relating to the Agreement, even if La Terzi has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
- Any claim against employees or persons engaged by La Terzi will be precluded. Employees and persons engaged by La Terzi may always invoke this third-party clause stipulated for their benefit.
- The Client shall submit any claims under this clause to La Terzi within one (1) year of occurrence of thereof, in the absence of which any right to claim compensation lapses (“verjaring”).
Clause 16. Miscellaneous
- No waiver by La Terzi of any breach by the Client, or failure by La Terzi to insist on the Client’s performance of obligations shall be considered a waiver of any subsequent breach of the same or any other provision.
- La Terzi shall not be deemed in breach of the Agreement if La Terzi is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of La Terzi or any local, state, federal, national or international law, governmental order or regulation or any other event beyond La Terzi’s control. Upon occurrence of any of such force majeure event, La Terzi shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
- The parties expressly acknowledge that the Agreement does not create an exclusive relationship between the parties. La Terzi shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by La Terzi.
- Nothing in the relationship between La Terzi and the Client shall create an agency, partnership or joint venture between the Parties and in specific the Client shall not be entitled to make any representation or warranty on behalf of La Terzi.
- Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
- The Agreement may not be assigned nor shall any sub-license be granted under it by Client, without the prior written consent of La Terzi, both as to the making of any such assignment or granting of any such sub-license, and as to their detailed terms.
- La Terzi shall have the right to transfer any and all of its rights and obligations under the Agreement to any third party and, to the extent necessary, Client hereby explicitly agrees with such transfer. Client shall further provide any reasonable assistance necessary to effect any transfer of rights and/or obligations.
- In the event of conflict between a translation of the Agreement and/or the General Terms, the English text shall prevail.
- In the event that there should be any discrepancy between a Dutch legal term used in these General Terms between brackets and the English translation, the Dutch legal term will prevail.
Clause 17. Governing Law
- All Agreements, the General Terms and other legally binding transactions between the Client and La Terzi are governed by Dutch law.
- The United Nations Convention on Contracts for the International Sales of Good (CISG) shall apply in addition, with respect to the delivery of Products under the Agreement.
- In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties.
- If they are unable to resolve the dispute, the dispute shall be settled before the courts of law in The Netherlands, Rechtbank Midden-Nederland, Utrecht.
- Notwithstanding the above, La Terzi shall at all times at its discretion be entitled to initiate legal proceedings against the Client in the country in which the registered office of the Client is located.
- In the event of conflicting provisions between these General Terms and the License Agreement between Client and La Terzi, the provision of the License Agreement shall prevail.