Terms & Conditions
Article 1. Definitions
In these general terms and conditions the following terms are understood to mean:
1.1 General terms and conditions: the terms and conditions included in this document as applied by Lalaland Ltd.
1.2 Intellectual property: copyrights (including personality rights), source codes, neighbouring rights, database rights, trade secrets, know-how, patent rights, design and model rights, trade name rights, trademark rights, rights related to semiconductor topographies, utility model rights in the broadest sense of the term and all other intellectual property rights and the rights pertaining to them.
1.3 Contractor: Lalaland Ltd., situated at Koningin Wilhelminaplein 1, 1062 HG in Amsterdam, listed under number 76515419 at the Chamber of Commerce, and/or one of its affiliated entities.
1.4 Client: the natural or legal person who has commissioned the contractor.
1.5 Order: the work commissioned by the client as described in writing in the agreement between the parties.
1.6 Agreement: an agreement concerning the delivery or provision by the contractor to the client of goods and/or services of any nature or description.
1.7 Software: software provided by the contractor to the client including, but not limited to, websites and/or (software) applications, including any (software) applications belonging to third parties which may form part of it.
1.8 Goods: physical objects, such as, but not limited to, data carriers, including the data stored on them, supplies, mood boards, designs, campaign material, packaging material, props and consumer articles.
Article 2. Agreement, quotation and order confirmation
2.1 These general terms and conditions apply to the conclusion of the agreement, its contents and the execution of all agreements between client and contractor, with the exclusion of purchasing conditions or other conditions set by the client.
2.2 All quotations and offers from the contractor are non-binding and valid for up to four weeks after the date of issue. In addition, any orders based on quotations are only binding on the part of the contractor if confirmed in writing by the contractor.
2.3 If the client cancels an offer or quotation in part or in its entirety he will be liable for the costs incurred by the contractor for any (preparatory) work already executed on his behalf. Compensation is also due if the client was unaware (preparatory) work on his behalf by the contractor had already begun.
2.4 Deviations and/or additions to these General Terms and Conditions only apply if they have been agreed by the parties digitally/in writing.
2.5 The voidness or voidability of part of the General Terms and Conditions does not affect the validity of the remaining provisions. In the event, the client and the contractor will agree to replace the void or voidable provision by one which approximates the intention and substance of the original provision as much as possible
2.6 The contractor is entitled to amend the General Terms and Conditions at any time and adapt, make additions to or remove any part of these terms without prior notice. The client will be informed of the changes in writing or by e-mail. The amended Terms and Conditions will apply (1) week after notification.
Article 3. Execution of the Agreement
3.1 The contractor will endeavour to execute the work commissioned to the best of his abilities while keeping in mind the client’s best interests and to aim for a result that is of use to the client. The contractor will, to the extent necessary, inform the client of the progress of the work. The client is obliged to do whatever is reasonably possible or necessary to enable a timely and correct delivery by the contractor, particularly with regard to the timely supply of complete, accurate and solid data or materials is concerned.
3.2 The contractor does not under any circumstances guarantee results, returns and profitability.
3.3 A time limit for the conclusion of the work quoted by the contractor is an approximation only. If the stipulated term is exceeded the client must give the contractor notice of default in writing.
3.4 Unless agreed otherwise, the performance of tests, the application for permits and the assessment of whether or not the instructions of the client comply with statutory or quality standards do not fall within the remit of the contractor.
3.5 Complaints must be submitted to the contractor in writing no later than ten (10) working days after the completion of the order, in failure of which the client is taken to fully accept the commissioned work as delivered.
3.6 The client indemnifies the contractor from and against any liabilities from third parties resulting from the application and/or use of the result of the commissioned work.
Article 4. Engaging third parties
4.1 Unless otherwise agreed, the commission of third parties for the realisation of the order will be undertaken by or on behalf of the client. The client may authorise the contractor to act as his representative at said client’s expense and risk for a mutually agreed sum.
4.2 Any estimate of the costs for the engagement of third parties made by the contractor at the request of the client is an approximation only. If required the contractor can request estimates from third parties on behalf of the client.
4.3 If, in the course of the execution of the order, the contractor procures goods or services for his own account and risk based on the express agreement with the client and these goods and services are then transferred to the client, the provisions in the general terms and conditions of the supplier concerning the quality, quantity, properties and delivery of these goods and services will also apply to the client.
4.4 . The client is not entitled to transfer rights and obligations arising from the agreement to third parties without the written permission of the contractor.
4.5 The client indemnifies the contractor from and against any claims from third parties which have suffered damages in consequence of the execution of the commissioned work and whose claims are attributable to the client.
Article 5. Intellectual property rights
5.1 The intellectual property rights pertaining to the products developed and delivered by the contractor conform to the agreement will remain exclusively with the contractor or the third party from whom the contractor has acquired the right of use. To the extent it is necessary for the client to make use of the products and/or services delivered by the contractor, the latter will grant the client in writing the limited, non-exclusive, non-transferable and – unless otherwise agreed in writing – non-sublicensable right to use the intellectual property rights pertaining to those products and/or services.
5.2 In the event the contractor is prepared to commit to the transfer of a right of intellectual property the agreement and transfer can only be entered into expressly and in writing. Should the parties agree in writing that a right of intellectual property pertaining to specific software (developed on behalf of the client), data files, equipment or other products, is to be transferred to the client, a subsequent separate right of intellectual property will ensure that the contractor retains the right or possibility to use and/or exploit for other purposes, either for his own benefit or that of third parties and without limit, the elements underpinning this development, including general principles, ideas, designs, algorithms, documentation, documents, works, programming languages, protocols, standards and similar elements. The separation of a property right does not affect the right of the contractor to engage in developments which are similar, or derive from, those undertaken on behalf of the client, either for his own benefit or that of a third party.
5.3 The contractor is entitled to have his name mentioned on or removed from the commissioned work at any time. If the contractor has included said contractor’s name on the products and/or services indicating intellectual property ownership the client is not entitled to change or remove it.
5.4 Even if the agreement does not explicitly provide for the competence, the contractor is entitled to put in place technical provisions to protect software, equipment, data files and similar elements in connection with the agreed limit regarding the content or the term of the right of use of these objects. The client is at no time entitled to remove these technical provisions or circumvent them or allow others to do so on his behalf.
5.5 Unless otherwise agreed, the work commissioned does not include an investigation into existing intellectual property rights, including, but not limited to, patent rights, trademark rights, model rights, copyrights or portrait rights of third parties. The same applies to any investigation into the possible existence of similar forms of protection on behalf of the client.
5.6 The client guarantees that no third party rights will prevent the availabilty to the contractor of equipment, software, material intended for websites (visual material, tests, music, domain names, logos, hyperlinks etc.) data files or other materials, including concepts and design material aimed at use for adaptation, installation or incorporation (for instance on a website). The client indemnifies the contractor from and against any claims from a third party based on the assertion that such a provision, use, adaptation, installation or incorporation infringes any right of that third party.
5.7 Unless otherwise agreed, the contractor retains the ownership of the working drawings, illustrations, prototypes, scale models, templates, designs, design sketches, mood boards, texts, lms, photos and other materials and (electronic) files produced by the contractor in connection with the order or the preceding quotation, irrespective of whether these have been provided to the client or third parties.
5.8 Once the order has been concluded neither the client nor the contractor is bound by a mutual retention obligation regarding the materials and/or data used.
Article 6. Use and licensing
6.1 Once the client has fully complied with the (payment) obligations arising from the agreement he will acquire a licence to use the design in as far as this concerns the right of publication and reproduction conform to the intended use agreed on when the work was commissioned. If the intended use was not agreed on, the licence will be limited to such use of the design as complies with the fixed intentions existent at the time of commission. These intentions must be verifiably made known to the contractor before the agreement is entered into.
6.3 The client is not, or no longer, allowed to use the results provided whereby any licence granted to the client in connection with the order will cease to operate:
- from the moment the client (partly) defaults on his (payment) obligations or is otherwise in default, unless the default is insignificant by reference to the overall scope of the work;
- if, for whatever reason, the work commissioned has been terminated early, unless the consequences of this are contrary to the principles of reasonableness and fairness.
6.4 The contractor is free to use the design for purposes of publicity, reference or promotion on his own behalf with due regard for the interests of the client.
Article 7. Privacy, data processing and security
7.1 If the contractor has to process personal data on behalf of the client the two parties will enter into a data processing agreement.
7.2 If the contractor deems it relevant to the execution of the agreement, the client will inform the contractor without delay and in writing of the way he fulfils his legal obligation with regard to the protection of personal data.
7.3 The client indemnifies the contractor from and against any claims by persons whose personal data have been processed or are being processed in the context of a processing action performed by the contractor or for which the contractor is legally responsible, unless the client can demonstrate that the facts on which the claim is based can be attributed solely to the contractor.
7.4 The responsibility for the data which are processed using a service provided by the contractor lies solely with the client. The client provides the contractor with the guarantee that the content, use and/or processing of the data are not unlawful and do not breach any third party rights. The client indemnifies the contractor from and against any legal claims of whatever nature in connection with these data or the execution of the agreement.
7.5 If, based on the agreement, the contractor is obliged to put in place data protection measures, said measures will have to comply with the data security specifications agreed by both parties in writing. The contractor cannot at any time guarantee that these data protection measures will be effective under all circumstances. If no such explicitly described data protection measures have been included in the agreement the protection of the data will comply with a level of security which, taking into account the state of the art, the sensitivity of the data and the cost associated with data security, is not unreasonable.
7.6 If the execution of the agreement or any other action involves the use of computer, data or telecommunication facilities the contractor is entitled to assign access or identification codes to the client. The contractor is entitled to change the assigned access or identification codes. The client will treat the access and identification codes with due care and confidentiality and will only make them known to trusted staff. The contractor is never liable for damage or cost arising from the use or abuse of the access and identification codes, unless the abuse is a direct consequence of an attributable failure or negligence on the part of the contractor.
Article 8. Prices and payment
8.1 All prices quoted by the contractor are exclusive of VAT and other government taxes. In addition to the agreed price, the contractor will also charge for any costs incurred by the contractor during the execution of the work.
8.2 All the amounts quoted by the contractor are in euros and are to be paid in euros by the client unless otherwise agreed in writing.
8.3 If, in the event of non or late delivery of complete, solid and clear data/materials, an amendment to the order or briefing or an incorrect order or briefing the contractor is forced to engage in additional or different activities, the cost of these will be based on the contractor’s usual rates for extra work. This also applies to the delivery of goods and/or the execution of work and services which are not included in the quotation or which have been agreed in writing at a later date.
8.4 The contractor is entitled to invoice the client at monthly intervals for work performed and costs related to the execution of the work.
8.5 The client must pay the invoice within thirty (30) days of the invoice date unless otherwise agreed.
8.6 If the client does not pay within the term specified under article 8.5 he will be in default by operation of the law and liable without further notice for the legal interest on the entire amount charged. Trade transactions are subject to the legal interest rate stated under article 6:119a of the Dutch Civil Code.
8.7 If the agreement specifies that the term ‘client’ refers to more than one natural person and/or legal person each of these (legal) persons will be severally bound to honour the terms of the agreement.
8.8 Unless otherwise agreed by the parties, work on the order by the contractor will not commence until the client has paid the advance payment invoice.
8.9 If payment is made in instalments and the client defaults on any of these payments, the contractor is entitled to provisionally suspend the delivery of services and/or products. The contractor may also freeze the assets, which means the client is (provisionally) barred from the access or availability of these services and/or products.
8.10 The client is never entitled to offset the amount owed by him to the contractor.
8.11 Objections against the amount of the invoice do not suspend the client’s payment obligations. Neither will the client have the right to suspend payment for any other reason if said client is not entitled to invoke section 6.5.3 (articles 231 up to and including 247 of book 6 of the Dutch Civil Code).
8.12 If the client is in default or in breach of the (timely) fulfilment of his obligations, all reasonable costs incurred in obtaining extrajudicial payment will be charged to the client. The extrajudicial costs will be based on current debt recovery practice in the Netherlands, subject to the Netherlands Extrajudicial Collection Costs Decree (Besluit Buitengerechtelijke Incassokosten). If the contractor is faced with circumstances which reasonably necessitate higher recovery costs, the actual costs will be eligible for compensation. Any legal and execution costs will also be charged to the client. The client is also liable for the interest on the recovery costs owed.
Article 9. Retention of title
9.1 The contractor retains ownership of all products delivered to the client until all amounts owed by the client on the basis of the agreement have been paid in full to the contractor.
9.2 In accordance with the agreement the contractor is entitled to retain the received or realised data, documents, software and/or data files, despite an existing obligation to surrender or transfer until the client has paid all amounts owed to the contractor in full.
Article 10. Termination and dissolution of the agreement
10.1 If the client terminates the agreement, he will be obliged to pay the agreed price and any additional costs incurred by third parties in connection to the work executed by the contractor until then less the costs saved by the contractor as a result of the termination.
10.2 If the agreement is terminated by the contractor on the ground of attributable failure to comply with the agreement on the part of the client, the latter will be liable for the agreed price and the costs made in connection with the work executed until then, as well as loss of profit. Actions by the client which are such that the client cannot reasonably be expected to finish the commissioned work will also be regarded as attributable failures.
10.3 Both the contractor and the client are entitled to terminate the agreement in whole or in part with immediate effect if either party faces bankruptcy or suspension of payment.
10.4 If, for whatever reason, work on the order is terminated early, the client is no longer allowed to use the materials and/or designs made available to him while any licence granted in the context of the order will also cease to operate unless otherwise and expressly agreed in writing.
10.5 If the commissioned work consists of the repetition of similar actions, the relevant agreement will apply for an indefinite term unless otherwise agreed in writing. The agreement can only be terminated in writing and with due observance of a reasonable term of notice of at least six (6) months.
Article 11. Liability
11.1 Save in the event of intent or deliberate recklessness by the contractor’s management, the contractor’s liability for damage or loss arising from an agreement or any wrongful act committed against the client will be limited to the amount invoiced for the portion of the work executed, less the costs incurred by the contractor in the engagement of third parties, on the understanding that that amount will not exceed EUR 250,000 (two hundred and fifty thousand) and will in no event be higher than the benefit that the insurance company of the contractor may pay in the event.
11.2 Any and all liability lapses by the expiry of a period of one (1) year from the date of the completion of the work.
11.3 The client must, if reasonably possible, retain copies of the data and materials supplied by him until the work has been completed. If the client fails to do this the contractor cannot be held liable for any damage which would not have occurred had the copies been extant.
11.4 The contractor is liable only for direct damage which is attributable to him. Direct damage will only include:
- reasonable costs incurred to determine the cause and extent of the damage insofar as the determination refers to damage as understood in the General Terms & Conditions;
- the reasonable costs necessarily incurred to have the contractor’s defective performance conform to the agreement;
- the reasonable costs incurred to prevent or limit damage insofar as the client can demonstrate that these costs have led to the limitation of the direct damage referred to in these General Terms & Conditions.
11.5 Liability on the part of the contractor for all indirect damage including, but not limited to, consequential damage, loss of profit, mutilated or lost data or materials, damage caused by business interruption or cybercrime, is excluded.
Article 12. Confidentiality
12.1 The parties agree to treat the detailed content of the agreement with confidentiality. This stipulation does not apply to the contractor if and insofar it is necessary to make the content known to third parties as a result of a court ruling, legal regulation or to ensure the proper execution of the agreement.
12.2 The parties will treat all information which they exchange prior, during or after the execution of the agreement with confidentiality if this information is marked confidential or if the receiving party knows, or can be reasonably assumed to know, that the information was meant to be confidential. The parties oblige staff and third parties engaged by them to execute the agreement to conform to the same.
Article 13. Disputes and applicable law
13.1 Any agreement between the contractor and the client is subject to Dutch law only.
13.2 The court of Amsterdam has exclusive jurisdiction to hear any disputes arising from, or connected with, the agreement between the contractor and the client.