Terms &

Januari, 2023

1. Agreement, quotation and confirmation

1.1. These general terms and conditions (hereinafter: General Terms and Conditions) apply to all quotations and the establishment, content and fulfillment of all agreements concluded between the client and Studio NelNel (hereinafter: contractor). Deviations from these General Terms and Conditions can only be agreed in writing between the client and the contractor.

1.2. Quotations are without obligation and are valid for 30 days. Quotations may be subject to change due to an unforeseen change in the work. Prices are exclusive of VAT. Mentioned rates and offers do not automatically apply to future assignments. The client guarantees the correctness and completeness of the information provided to the contractor by or on behalf of it on which the contractor bases the quotation.

1.3. A description of the assignment, including (functional and technical) specifications, is included as much as possible with the quotation, which annex forms an integral part of the quotation (hereinafter: the Specifications). In order to avoid misunderstandings, the contractor is free to elaborate or require a further elaboration of the assignment description or the Specifications.

1.4. Orders are confirmed in writing by the client. If the client fails to do so, but nevertheless agrees that the contractor will start carrying out the assignment, the content of the quotation will be deemed to have been agreed and these General Terms and Conditions will apply. Further oral agreements and stipulations are only binding on the contractor after they have been confirmed in writing by the contractor.

2. Services

2.1. If reference is made in these General Terms and Conditions to a service, this refers to a service that the contractor provides to the client, because the client has given the order for this.

2.2. Third-party services may form part of the agreement. If that is the case, the additional terms and conditions of these third parties apply to (the use of) those services. The additional terms and conditions can be consulted on the website of these third parties.

2.3. The client grants the contractor a power of attorney to accept any additional conditions on behalf of the client and/or to conclude a (separate) agreement for the provision of the service in question.

2.4. The contractor grants the client the non-exclusive, non-transferable and revocable right to use the service for the duration and under the conditions of the agreement.


3. Execution of the agreement

3.1. The contractor will make every effort to carry out the assignment carefully and independently, to represent the client’s interests to the best of its knowledge and to strive for a result that is useful for the client, as can and may be expected from a contractor acting reasonably and professionally. Insofar as necessary, the contractor will keep the client informed of the progress of the work.

3.2. The contractor will perform the assignment to the best of its ability with due observance of the current state of the art. The contractor cannot guarantee that the Result will work without interruption or errors in any environment. The Result and its appearance may depend on external factors such as hardware, systems, browsers, screen resolutions or operating systems. If necessary, the client can have it included in the Specifications prior to the execution of the assignment, in which environment the Result will be used, so that the Result can be adapted to this as much as possible.

3.3. The client will do everything that is reasonably necessary or desirable to enable a timely and correct delivery by the contractor, such as the timely delivery of complete, sound and clear data or materials, of which the contractor indicates or of which the client understands or should reasonably understand that they are necessary for the execution of the agreement.

3.4. A term specified by the contractor for the execution of the assignment is indicative, unless otherwise agreed in writing.

3.5. The client and the contractor determine in joint consultation which conditions the result of the assignment (hereinafter: the Result), in addition to the aforementioned Specifications, must in any case meet. Unless otherwise agreed, the Result consists of strategic advice (hereinafter: Advice), the visual design and illustration work (hereinafter: Visual Design), the interactive media applications, such as (mobile) applications/apps and websites (hereinafter: Software) and the source code with which the Software is written (hereinafter: Source code). Insofar as the correct use of the Result so requires, the parties also agree to what extent the contractor will be involved in the maintenance of the Result.

3.6. Unless otherwise agreed, the assignment of the contractor does not include:

performing tests, applying for permits and assessing whether instructions from the client meet legal or quality standards;

conducting research into the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties;

conducting research into the possibility of the possible forms of protection for the client;

request domain name registrations, email, web hosting or SSL certificates;

establishing procedures for security, control, maintenance and system administration.

3.7. Before implementation, production, duplication or publication, the parties will give each other the opportunity to check and approve the latest concepts, models, prototypes or tests of the result.

3.8. If an acceptance test has been agreed with the order, a test period will be determined, which will in no case be longer than 14 days after delivery of the Result by the contractor, unless otherwise agreed in writing. The client is not permitted to make the Result and/or the test data public during the test period, to make changes therein or to have them tested or by third parties – subject to the permission of the contractor.

3.9. If, in the opinion of the client, the Result does not comply with the relevant Specifications, the client will inform the contractor thereof immediately, but at least within 14 days after delivery, and for defects that are not caused by failure to observe the aforementioned technical and/or functional specifications, at least within 30 days of delivery, in writing, failing which he will be deemed to have unconditionally accepted the Result “as is”. The last-mentioned period of 30 days does not apply if the client can prove beyond doubt that, even if the aforementioned period has expired, they could not have discovered this defect earlier. In that case, the client is also obliged to report the defect to the contractor as soon as possible. Creative, substantive, artistic or linguistic choices by the contractor can never be regarded as a “defect” within the meaning of this article or of the agreement, unless they are expressly part of the Specifications.

3.10. Deviations in the (final) result compared to what has been agreed are not grounds for rejection, discount, compensation or dissolution of the agreement, if these deviations, taking all circumstances into account, are reasonably of minor importance.

4. Third parties

4.1. Unless otherwise agreed, assignments are given to third parties in the context of the execution of the assignment, by or on behalf of the client. At the request of the client, the contractor may act as an authorized representative at the expense and risk of the client. The parties can agree on a fee to be agreed upon for this.

4.2. If the contractor draws up a budget for the costs of third parties at the request of the client, this budget is indicative. If desired, the contractor can request quotes on behalf of the client.

4.3. If, in the performance of the assignment, the contractor purchases goods or services from third parties in accordance with an explicit agreement at its own expense and risk, 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 towards the client.

4.4. When the contractor, whether or not in the name of the client, issues orders or instructions to production companies or other third parties, the client will confirm the approval referred to in Article 3.7 of these General Terms and Conditions in writing at the request of the contractor.

4.5. The client will not engage third parties without consultation with the contractor if this may affect the execution of the assignment as agreed with the contractor. If the occasion arises, the parties will discuss which other contractors will be engaged and which activities will be assigned to them.

4.6. The contractor 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 have been introduced by the contractor. The client must address these parties itself. If desired, the contractor can provide assistance with this.

5. Intellectual Property and Property Rights

5.1. All intellectual property rights arising from the assignment – including patent law, trademark right, drawing or design right and copyright – to the results from the assignment belong to the contractor. Insofar as such a right can only be obtained through a deposit or registration, the contractor is exclusively authorized to do so, unless otherwise agreed.

5.2. The parties may agree that the rights referred to in the first paragraph will be transferred in whole or in part to the client. This transfer and any conditions under which the transfer takes place are always recorded in writing. Until the moment of transfer, a right of use is granted as regulated in Article 6 of these General Terms and Conditions.

5.3. The contractor has the right at all times to mention or have their name mentioned or removed on, with or in publicity surrounding the result of the assignment, in the usual manner for that result. The client is not permitted without the prior consent of the

the contractor to publish or reproduce the result without stating the name of the contractor.

5.4. Unless otherwise agreed, the (originally created) results created by the contractor in the context of the assignment (such as trademark rights, design rights, patents, designs, design sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photos, prototypes, (part) products, films, (audio and video) presentations, source codes, domain name rights and other materials or (electronic) files, etc.) are the property of the contractor, regardless of whether these are made available to the client or to third parties have been made.

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

6. Use of the result

6.1. When the client fully complies with his obligations under the agreement with the contractor, they acquire 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 has (apparently) been issued. The right to use is exclusive, unless the nature of the agreement dictates otherwise or otherwise agreed.

6.2. If the Result also relates to works to which the rights of third parties rest, the parties will make additional agreements about how the use of these works will be arranged.

6.3. Without written permission, the Client is not entitled to adjust the Result of the Assignment, to (re)use or to perform it in a wider or other way than has been agreed, or to have this done by third parties. The contractor may attach conditions to this permission, including the payment of a fair compensation.

6.4. In the event of wider or different use not agreed, including changes to, mutilation or impairment of the provisional or final Result, the contractor is entitled to compensation for infringement of their rights of at least three times the agreed fee, or at least a compensation that is in reasonableness and fairness proportionate to the infringement committed, without otherwise losing any other right.

6.5. The client is not (any longer) permitted to use the results made available and any right of use granted to the client in the context of the assignment will lapse, unless the consequences thereof are contrary to reasonableness and fairness:

from the moment that the client does not or does not fully comply with its (payment) obligations under the agreement or is otherwise in default;

if the assignment is terminated prematurely for reasons stated in Article 14.1 of these General Terms and Conditions;

in the event of bankruptcy of the client, unless the relevant rights have been transferred to the client in accordance with Article 5.2 of these General Terms and Conditions.

6.6. With due observance of the interests of the client, the contractor has the freedom to use the results for its own publicity, acquisition of assignments, promotion, including competitions and exhibitions, etc. and to get these on loan, when it comes to physical results.

7. Amendments

7.1. In the event of an order for the development of a (mobile) application or website, or a design that is equivalent to such an application, the client is permitted to make changes for daily use within the limits specified by the contractor. to be applied in the content of the databases, underlying pages and the tree structures.

7.2. However, the client is not permitted to make changes to:

the Illustrations;

the Visual Design;

the opening page;

the basic structure;

the Software.

8. Source Code and Protection Software

8.1. The Source code of the Software and the technical documentation created during the development of the Result will not be transferred by the contractor to the client. If the client so desires or if the nature of the assignment gives reason to do so, the contractor may be obliged to deposit the source code with a third party (“escrow”). The escrow costs are for the account of the client, unless the parties have agreed otherwise or the escrow arrangement already existed.

8.2. Insofar as the client can inspect the Source Code, they do not have the right to use it in any way (other than for which it may have been given in escrow), or to disassemble, decode, decompile, reverse engineer adapt, change and/or provide information about this to others without the prior written permission of the copyright owner of the Source Code.

8.3. The contractor has the right to protect their Software by means of (technical) measures. In that case, the client is not permitted to remove or evade this security.

9. Enforcement of rights

9.1. The contractor hereby authorizes the client, in the event of infringement of their rights to the Result, at their own expense, on behalf of the contractor and on their own behalf, both in and out of court, to maintain the rights and to claim compensation and payment of profit. In all measures taken for this purpose, the parties will provide each other with all necessary information.

9.2. In the event of legal action as referred to in the previous paragraph, the client is entitled to 60% and the contractor to 40% of the proceeds from any damage claim awarded or honored to the client, after deduction of any extrajudicial and judicial costs and costs for legal assistance, insofar as the infringer has not been ordered to pay those costs.

9.3. If the client declines to take such legal action, the contractor is free to take legal action against the infringing party(ies). The (damage) compensation to be paid by a third party on the basis of those legal measures will fully accrue to the contractor, with compensation to the client for the reasonable costs incurred by them for assistance to the contractor.

10. Fees and costs

10.1. The contractor 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.

10.2. In addition to the agreed fee, the costs incurred by the contractor 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 guidance, etc., are eligible for reimbursement. These costs are specified in advance as much as possible, unless a surcharge percentage is agreed.

10.3. The contractor may include their name in the Result in a modest manner. The manner in which this name is mentioned is determined in mutual consultation.

10.4. If the contractor, due to the late or non-delivery of complete, sound and clear materials, due to an amended or incorrect assignment or briefing, by carrying out unauthorized changes defined in Article 7.2 of these General Terms and Conditions, or due to external circumstances is forced to perform more or different work, these activities will be charged separately, on the basis of the usual fee rates charged by the contractor. The contractor 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.

10.5. If the execution of the assignment is delayed or interrupted by circumstances that cannot be attributed to the contractor, the client is obliged to reimburse any costs that this entails. The contractor will try to limit the costs as much as possible.

11. Payment and Suspension

11.1. All payments must be made without deduction, set-off or suspension, within 14 days of the invoice date, unless otherwise agreed in writing or otherwise stated on the invoice.

11.2. All goods delivered to the client remain the property of the contractor until all amounts that the client owes the contractor on the basis of the agreement concluded between the parties have been paid in full to the contractor.

11.3. If the client is in default with the full or partial payment of the amounts owed, the client owes statutory interest or extrajudicial collection costs, which amount to at least 10% of the invoice amount with a minimum of € 150 excl. VAT.

11.4. The contractor is responsible for timely invoicing. In consultation with the client, the contractor may charge the agreed fee and costs as an advance, interim or periodic.

11.5. The contractor may suspend the execution of the assignment after the payment term has expired and the client, after having been given a written reminder to pay within 10 days, fails to do so, or if the contractor must understand through a statement or behavior of the client that payment is not forthcoming.

12. Termination and dissolution of the agreement

12.1. If the client terminates the agreement without culpable failure on the part of the contractor, or if the contractor dissolves the agreement due to an attributable shortcoming in the fulfillment of the agreement by the client, then the client, in addition to the fee and the costs incurred with regard to the work performed up to that point, will owe compensation. Conduct of the client on the basis of which the contractor can no longer reasonably be expected to complete the assignment, are in this context also regarded as an attributable shortcoming.

12.2. The compensation referred to in the previous paragraph includes at least the costs arising from the commitments entered into by the contractor 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 have received upon full fulfillment of the contract.

12.3. Both the contractor and the client have the right to immediately dissolve the agreement in whole or in part, and all amounts owed become immediately due and payable when a petition for bankruptcy, (provisional) suspension of payments or debt restructuring is submitted with regard to the other party.

12.4. If the work of the contractor consists of repeatedly performing similar work, then there is a continuing performance agreement, unless otherwise agreed in writing. This Agreement may 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 the contractor or will compensate it financially.

13. Warranties and Disclaimers

13.1. The contractor guarantees that the delivered goods have been produced by or on behalf of them and that, if the result is subject to copyright, they are regarded as the creator within the meaning of the Copyright Act and can dispose of the work as copyright holder. The contractor guarantees that the Result of the assignment at the time of its realization, insofar as they know or should reasonably know, does not infringe the rights of third parties or is otherwise unlawful.

13.2. The contractor will repair any defects in the Result, as referred to and reported in article 3.8 of these General Terms and Conditions, insofar as these defects are due to the contractor not meeting the Specifications. If an acceptance test has been agreed, the contractor will, in deviation from the foregoing, repair such defects that are reported in writing by the client within 14 days after the end of the test period, in the Result, insofar as these defects are related to changes/improvements applied during the test period.

13.3. When the client uses the Result, the client indemnifies the contractor or third parties engaged by the contractor for the assignment against all third-party claims arising from the applications or the use of the result of the assignment. This does not affect the contractor’s liability towards the client for non-compliance with the guarantees as referred to in the previous paragraph and other liability as referred to in Article 14 of these General Terms and Conditions.

13.4. The client indemnifies the contractor against claims with regard to intellectual property rights on all materials and/or data provided by the client, which are used in the execution of the assignment.

14. Liability

14.1. In the event of an attributable shortcoming, the Contractor must first be given written notice of default, with a reasonable term to fulfill their obligations, or to repair any errors or to limit or eliminate damage.

14.2. The contractor is only liable towards the client for direct damage attributable to the contractor. The contractor’s liability for indirect damage, including consequential damage, loss of profit, lost savings, mutilated or lost data or materials, or damage due to business interruption, is excluded.

14.3. Various services provided by the contractor require access to the client’s infrastructure. In many cases, the client can deny the contractor access to this infrastructure. In these cases all liability of the contractor lapses immediately.

14.4. Except in the event of intent or willful recklessness on the part of the contractor, the contractor’s liability is limited to the contractor’s fee for the assignment, at least that part of the assignment to which the liability relates. This amount does not exceed €75,000 and in any case limited at all times to a maximum of the amount that the insurer pays out to the contractor in the appropriate case. The amount for which the contractor is liable in the appropriate case is reduced by any sums insured by the client.

14.5. Any liability lapses after two years from the moment the assignment is terminated by completion, cancellation or dissolution.

15. Privacy

15.1. If the contractor has to process personal data of (customers of) the client in the context of the services to be provided, then the contractor is regarded as a “processor” and the client as a “responsible person” within the meaning of the General Data Protection Regulation (GDPR) and If desired, an additional processing agreement is concluded.

16. Changes to the Terms and Conditions

16.1. The contractor may change these General Terms and Conditions. New General Terms and Conditions will be communicated in writing.

16.2. New General Terms and Conditions provisions will take effect immediately for new agreements and after thirty (30) days for existing agreements.

16.3. The client may object to these changes in writing within thirty (30) days. In this case, the client can reverse the change with regard to this client or terminate the agreement.

16.4. Changes in the General Terms and Conditions that are positive or simply neutral for the client will become effective without the client being able to object.

17. Other provisions

17.1. The client and the contractor both designate a contact person who is authorized to take decisions within the framework of the assignment. If the designated person of a party is unavailable for any reason for more than four weeks, that party will designate another contact person.

17.2. If the client wishes to grant the same assignment to others than the contractor at the same time or has already given the assignment to another party, they will inform the contractor of this, stating the names of these others.

17.3. The client is not permitted to transfer any right from an agreement concluded with the contractor to third parties, other than in the case of transfer of his entire business or with the written permission of the contractor.

17.4. The parties are obliged to maintain secrecy with regard to all confidential information, facts and circumstances that come to the knowledge of the other party in the context of the assignment, from each other or from another source, of which it can be reasonably understood that disclosure or communication to third parties or the client could cause damage. Third parties involved in the execution of the assignment will be bound by the same confidential treatment with regard to these facts and circumstances originating from the other party.

17.5. The applicability of any purchase or other conditions of the client is expressly rejected, unless expressly agreed otherwise in writing in additional conditions.

17.6. If any provision of these Terms and Conditions is void or voided, the remaining provisions of these Terms and Conditions will remain in full force and effect. In that case, the parties will consult with the aim of agreeing new provisions to replace the void or voided provisions, whereby the purpose and intent of the void or voided provisions will be taken into account as much as possible.

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

17.8. Dutch law applies to the agreement between the contractor and the client. In the first instance, the parties will try to resolve a dispute that has arisen in mutual consultation. Unless the parties have expressly agreed to arbitration in writing, the competent court according to the law, or the court in the district where the contractor is established, will, at the discretion of the contractor, take cognizance of any disputes between the contractor and the client.

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