Article 1: Applicability of Terms and Conditions
These terms and conditions are applicable to every offer, quotation, agreement and/or contractual legal relationship between “Contractor” and “Client”, excluding any general or other terms and conditions of the Client. Deviation from these terms and conditions is only allowed with explicit consent and written agreement between both parties. The present terms and conditions are also applicable to proceedings by the Contractor, in the context of the contract, engaging third parties. These terms and conditions are also what the Contractor’s employees are submitted to.
1.1 The Client is defined as: the party providing the contract for the proceeding activities.
1.2 The Contractor is defined as: W.Green, Established in Amsterdam at Derde Oosterparkstraat 46, 1091 JZ.
1.3 The contractual legal relationship is defined as: everything that W.Green makes/undertakes c.q. has to make/undertake, for the purpose of the client within the framework of the contract provided to W.Green.
1.4 The contract is defined as: the agreement to the contract on grounds of article 7:400 of the Dutch Code of Civil Procedure wherein the Contractor, in a supplemental way from the employment contract, commits itself to the Client and whereby the Contractor performs the agreed upon activities for the Client.
Article 2: Quotation, offers and agreement
2.1 Quotations and offers are non-committal and will be valid for two months. Quotation estimations can undergo adjustments due to unforeseen changes in proceeding activities. Estimates are excluding VAT and other levies by the government, possible within the framework of the agreement costs to be made, including travel-, accommodation-, shipping- and administrative costs, unless indicated otherwise. Rates agreed upon here are not automatically applicable to future contracts.
2.2 Contracts are to be confirmed in writing by the client. In the case that the Client neglects to do so, but nonetheless agrees with W.Green about starting the execution of the contract activities, then the quotation will be upheld as agreement. Further verbal agreements and stipulations are binding W.Green after W.Green has provided written confirmation.
2.3 Every agreement for the execution of activities by W.Green with the Client incur for a specified period of time, unless parties have mutually agreed otherwise.
2.4 With every agreement without a specified period of time, parties will discuss a notice period for termination of the agreement. There must be a notice period of at least 2 months for termination of agreement.
Article 3: Execution of the agreement W.Green shall endeavor as meticulous and independent execution of the contract as possible, look after the interests of the Client and striving to realize a viable result for the Client. W.Green shall keep the Client up to date to the extent necessary for progression of activities.
3.1 The Client is held accountable to do that which can be reasonably necessary and/or desirable for W.Green to enable timely and proper delivery. Timely and proper delivery means: the timely (getting) delivery of full, adequate and clear information on materials (input). When the Client delivers the necessary information and details too late (e.g. delivery of the necessary input after the deadline that was set), the Contractor has the right to suspend and/or delay execution.
3.2 In the case W.Green does not receive timely, full, adequate and clear input from the Client, and the adjusted input be or briefing is compelled to be performed by execution of additional activities, these activities need to be rewarded separately, based on the rates applied by W.Green.
3.3 The terms by which W.Green upholds for the completion of the contract/assignment is an approximation and never a definitive term, unless from the nature and/or content of the agreement indicates otherwise. By the exceeding of a term the Client has to give the Contractor a written notice of default and offer a reasonable term for still completing the given agreement.
3.4 Contractor has the right to let certain activities be performed by third parties. The applicability of article 7:404, 7:407 section2 and 7:409 Dutch Code of Civil Procedure are explicitly excluded.
3.5 Unless agreed otherwise the execution of analyses/tests, the application for licenses and the assessment of instructions by the Client do or do not meet lawful quality standards, W. Green is not to be held responsible.
3.6 Before being sent to production, the collective approval of multiplication and publication parties needs to be performed through the inspection of the latest versions (be it models, prototypes, testing, of the subject).
Article 4: Rights to intellectual property and copyrights
4.1 Unless otherwise agreed in writing, all rights of intellectual property (including patents, design rights and copyrights) resulting from the assignment belong to W.Green, as far as such rights are able to be obtained through filing or registration, only W.Green is authorized to do so. Delivery within the framework of the agreement by the Contractor will remain property of the Contractor until the Client has duly met all commitments of the agreement(s) with the Contractor.
4.2 Upon inspection by W.Green production resulting from the Client, him/herself has to the right to inquire whether there are possible conflicts with the rights of others. Upon the discovery of conflict with the rights of others, W.Green must alter the result at the expense of the Client.
4.3 Unless the work is not suitable for that purpose, W.Green is at all times authorized to use her name on all materials. The Client is not allowed to publish or duplicate the works without mentioning the name of W.Green without prior authorization.
4.4 Unless otherwise agreed in writing, within the framework of the assignment by W.Green contrived, designed and executed (working) drawings, illustrations, materials or (electronic) files, will remain property of W.Green, regardless whether or not these have been handed over the Client or third parties.
4.5 Unless otherwise agreed in writing, after completion of the assignment neither the Client nor W.Green hold retention obligations with regards to the used materials. For the obligation of retention W.Green can determine compensation in accordance with reasonableness and fairness.
Article 5: Use en license
When the Client fully meets all his obligations resulting from the agreement with W.Green, he is granted exclusive license to the use of the design for as far as the right of publication and multiplication in accordance with the in the contract is agreed upon destination.
5.1 If no agreements have been made about the destination, then the licensing is limited to the use of the design, wherefore on the moment of departure of the assignment established intentions existed. These intentions are to be made demonstrably known before concluding the contract with W.Green.
5.2 The client is not authorized to use the design in broader sense or (let it be) used in a different manner than agreed upon, without written consent of W.Green. If no additional agreement has been made on broader and additional use, in the event that adjustments, disfiguration or deterioration of the provisional or definitive design occur, W.Green has the right to a compensation due to breach of her rights in the amount of at least three times the agreed upon honorarium, or at least a compensation within reasonable fairness in relation to the committed breach, undiminished by the right of W.Green to demand a compensation for the actual damages suffered.
5.3 The Client is not authorized for continued use the results made available, and any results under the framework of the assignment to the Client granted licenses are voided when:
a) The Client does not (fully) fulfill his (payment) obligations by virtue of the agreement or in any other way defaults, unless the failure of the Client is of subordinate significance to the assignment;
b) In the event that the assignment, for whatever reason, is ended prematurely, unless the consequences thereof are in conflict with reasonability and fairness.
5.4 W.Green has in compliance within the interest of the Client, the liberty to use the design for her own publicity or promotion.
5.5 Unless otherwise agreed upon in writing, W.Green has the right to name Clients, project and produced works in brochures, mailings and other advertising materials online and offline for the benefit of W.Green.
Article 6: Honoraria, expenses and declarations
The honoraria en declarations of W.Green are based on hourly rates that have been made known to the Client, or on a mutually agreed upon (month or project) fee, unless another way of compensation is agreed upon. W.Green is authorized to adjust her rates through indexation of 4% based on inflation, no more than once a year.
6.1 Increases as indicated in the last paragraph are to be calculated after discussion and being made clear to the client in writing. In the event that there is a preliminary agreement on working with estimate(s) based on hourly rates, W.Green commits itself to take this estimate into account, undiminished however by article 6.1. a set relevant office expenses or costs of third parties. Deviation in case of such an estimate is only allowed in relation to the above mentioned indexation, or in the event of intermediate adjustments to the assignment by the Client. All calculated and estimated honoraria and retainer fees are excluding VAT.
a) Aside from content article 6.1 meant honoraria and declarations W.Green can charge office expenses as well as costs of third parties that W.Green approaches with regard to execution within the framework of her given assignment, to the Client. Office expenses are understood among other things (not to be limited to) telephone-, fax-, postage-. photocopy-, clipping-, travel- and accommodation costs and expenses. Under costs of third parties are understood among other things (not to be limited to) all billed office expenses and purchasing costs and honoraria of third parties. Deviating from the content in article 6.1 provisions on the hourly rates used in the estimate, office expenses and third party costs are to be charged to the Client if they exceed the amount stated in the estimate. All agreed upon estimated amounts are excluding VAT.
b) Undiminished by the content of article 6.1: W.Green has to inform the Client in a timely and reasonable manner in the event that the approved estimate is exceeded by W.Green (and this can be foreseen).
c) W.Green is entitled to demand an advance payment on her honorarium, retainer fees and recharged costs of third parties from the Client. The height of the amount will be mutually agreed upon.
6.2 W.Green will declare monthly the owed honorarium/retainer fee, office expenses and costs of third parties of the past month, unless otherwise agreed upon with the Client. By mutual agreement the paid advance can diminish these charges.
6.3 Declarations are to be met within 14 days after the invoice date. By failing to pay that which is owed in time, the Client is legally in default.
6.4 Unless agreed upon otherwise in writing, the Client will make the owed payments to W.Green without discount or clearance. The Client is not authorized to suspend payment of already performed activities.
6.5 When the payment is not timely in the account of W.Green, W.Green has the right to suspend her activities, where the payment obligations remain applicable.
6.6 In the event that the Client defaults his payments of any amount, he owes W.Green interest for late payment on the amount owed.
a) This interest on late payment is equal to the trade interest ex article 6:119a Dutch Code of Civil Procedure.
b) In case the Client is a natural person (e.g. a human being, naturally born), then the interest on late payment is equal to lawful interest ex article 6:119a Dutch Code of Civil Procedure.
c) If the Client is defaulting one or more of his obligations, then the costs for obtaining of extrajudicial settlement are charged to the Client. These extrajudicial collection expenses are to be fixed at 15% of the unpaid amount, with a minimum of € 50, -.
6.7 All expenses made by W.Green, such as litigation costs and extrajudicial and judicial expenses, including the costs of legal counsel, bailiffs and debt collection agencies, made in relation to the late payments, are to be charged to the client.
Article 7: Cancellation and termination of the contract
7.1 With each agreement, the following applies:
a) The agreement can only be terminated by the Client in case there are unusual and unforeseen circumstances as determined in article 6:265 of the Dutch Code of Civil Procedure. Examples given: moving abroad, bankruptcy, etc.
b) Aside from that the agreement can be cancelled by the Client, as is legally determined in article 6:265 of the Dutch Code of Civil Procedure, when the other party – in this case W.Green – inadequately performs her duties (in other words when agreements are not fulfilled). These inadequacies must justify the cancellation and may therefore not be minor shortcomings. Aside from that the inadequacy needs to be in lasting compliance of temporarily impossible or the opposing party needs to be ‘defaulting’. In the event of defaulting on the basis of the law, it is constituted when strict deadlines have been exceeded, when the opposing party is in default, or when the opposing party itself indicates/communicates not in a timely matter to fulfill its duties.
7.2 The assignment can be rejected, or the agreement can be terminated by W.Green in the event that:
c) The Client is legally incompetent;
d) The Client does not comply with one of the terms conditions and/or does not to fulfill such duties;
e) The Client pursuant to earlier agreements with W.Green does not fulfill its financial obligations.
7.3 When the Client cancels an agreement, he is compelled to with immediate effect pay the honorarium and the expenses made concerning the performed activities.
7.4 In the event that an agreement is terminated by W.Green the Client is compelled to immediately pay the honorarium and the expenses made concerning the performed activities. W.Green is in no way accountable for any damages and/or costs that may arise therefrom.
7.5 In the event that the termination is attributable to the Client, the Contractor is entitled to compensation of damages, therein including: the costs, as both direct and indirect result. The termination can be attributed to the Client in the event he does not comply with his obligations from the Agreement and these terms and conditions are not honored.
7.6 The compensation referred to in earlier sections of this article will comprise of:
a) The expenses made by W.Green in accordance with the commitments made to third parties for the completion of the assignment;
b) At least 30% of the remaining part of the honorarium that the Client would owe upon complete fulfillment of the assignment
7.7 Immediate termination of an agreement for a fixed duration by a third party can only be carried out in the event that the other parties do not comply with one or more of her essential obligations. The termination of an agreement must be made in writing, taking into the account the termination notice period of 2 months with contracts with a duration up to one year, and of 3 months with contracts with a duration of more than one year.
7.8 Both W.Green and the Client have the right to immediately completely or partially terminate the agreement in the event of bankruptcy or (temporary) suspension of the other party. Upon bankruptcy of the Client, W.Green has the right to terminate the granted usage licenses, unless the consequences thereof are in conflict with reasonability and fairness.
7.9 In the event of termination by the Client due to attributable inadequacies in the compliance with obligation by W.Green, the current activities performed and the payment obligations associated with these are not subject to cancellation, unless the Client proves W.Green is in default with respect to earlier performed activities.
Article 8: Warranties and disclaimers
8.1 W.Green guaranties that the materials provided are by her design and that copyrights rest on the design, she is the the maker in the sense of Copyright law and can take possession as copyright owner of the works.
8.2 W.Green shall carefully handle the matters entrusted to her by the Client, but accepts no form of liability in relation thereto as for example the losing, damaging, destroying or disappearance of item entrusted to her by the Client. The Client is deemed to take this into their own account and insure the risks on the in the article intended goods.
8.3 The Client safeguards W.Green and engaged persons on all claims by third parties resulting from the application of the result of the assignment.
8.4 The Client safeguards W.Green on claims with relation to rights of intellectual property by the Client provided material or information that will be used in the execution of the assignment.
Article 9: Confidentiality and responsibility
9.1 W.Green commits herself to that which in the execution of her activities comes to knowledge and whereof she is deemed to acknowledge its confidentiality, to keep confidential, unless that information through no fault of W.Green is already publicly accessible. Only with authorization of the Client and/or on grounds of her only legal obligations W.Green is allowed to breach these confidentialities.
9.2 W.Green assesses her activities according to generally applicable legal regulations and standards and the generally applicable rules and customs in the industry.
a) The ultimate responsibility for the contents of the communicative expressions in the framework of execution of the assignment rest on the Client.
b) In the case a complaint is filed against the Client, then the Client decides on the manner of defense against this in consultation with W.Green.
c) In the case W.Green (also) is addressed judicially, W.Green has the right to independently, potentially independent of the potential defense of the Client, defend herself. The Client is held accountable for reasonable compensation of expenses made in relation to the defense.
Article 10: Liability
The Client is accountable for the correctness, completeness and trustworthiness of the data and information made available to W.Green, even if these come from third parties, as far as the nature of the agreement does not conclude otherwise.
10.1 Due to delay in the execution of the agreement resulting extra time and expenses, not timely or not reasonably availability of requested information and/or unobtrusive, are charged to the Client. W.Green is not liable for damages, of any nature, due to W.Green assuming the Client provided incorrect and/or incomplete information.
10.2 W.Green is in no case liable for company-, resulting- or indirect damages, except in case of intentional or conscious recklessness by W.Green or one of her managerial subordinates. The liability of W.Green towards the Client in the before mentioned cases restricted to the honorarium that W.Green accrues for the part of the executed assignment that has resulted in the occurrence of damage.
10.3 W,Green is exclusively liable for direct damages caused by an accountable shortcoming by W.Green in compliance with one of the fundamental obligations she has towards the Client.
10.4 W.Green is not liable for deviations, errors and defects that remained unnoticed in the samples approved or adjusted by the Client.
10.5 W.Green is not liable for damage of properties or other means in relation to the execution of the assignment for the Client or for third parties, herein included but not limited to the employees of the Client or the engaged third parties. The Client is required to adequately insure himself and remain insured in relation to the liability that lays on him according to this article.
10.6 Deviation between works on the one hand, provided by W.Green to the Client and on the other hand, the original designs, drawings, manuscripts or models, typesetting or printing proofs or and other proofs can not result in reasons for disapproval, discount, compensation or termination of the agreement by the Client in case these deviations – viewed in the whole of the assignment – are of little importance.
10.7 In the case that the execution of a provided assignment depends on the availability of the employees of W.Green and this person(s) is unable to perform the agreed upon activities, then qualifies as temporary force majeure for W.Green. The agreement remains in tact and the obligations of W.Green hold direct relation to the activities of the intended person will be – as far as possible – temporarily taken over by a colleague. In the case that this is not possible, the activities will be temporarily postponed. W.Green takes no liability for possible damages resulting from the postponing (temporary force majeure).
10.8 Every liability is voided by the course of one year from the moment the assignment is completed.
10.9 The Client is held reasonable for keeping copies of materials and information provided by him to himself until the assignment is completed. In the case that the Client neglects to do so, W.Green cannot be held accountable for damages that may occur from the existence of these copies.
Article 11: Adjustment terms and conditions
11.1 These terms and conditions and rates can be adjusted by W.Green. However, these adjustments shall be handed over to the Client for statement of agreement.
11.2 When the terms and conditions and/or rates are adjusted these changes are not applicable to ongoing projects, unless agreed upon otherwise.
Article 12: Other stipulations
12.1 The Client is in no way allowed to hand over an agreement made with W.Green to a third party, other than with the transferal of his/her entire company or with authorization by W.Green.
12.2 Parties are held by facts and circumstances, that if in the framework of the assignment to the other party, it comes to their knowledge, to be treated as confidential. Third parties who are involved in the execution of the assignment, shall with respect to these facts and circumstance be bound to the same confidentiality agreement.
12.3 The markings in these terms and conditions only serve to increase the readability and are of no part to these terms and conditions.
12.4 In the event that the Client adjusts their contact information, the Client has to inform W.Green of their new contact information prior to the adjustment.
12.5 After the completion of the agreement with W.Green the use of the name and/or logo of W.Green by the Client may not result in harm or damage to the name or identity of W.Green.
12.6 On the agreement between W.Green and Client, Dutch law is applicable. The court to rule on disputes between W.Green and the Client is the authorized court in the district W.Green is established in
+31 20 221 35 00
Derde Oosterparkstraat 46
1091 JZ Amsterdam