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 B.V.
1.2 “Intellectual Property”: copyrights (including personality rights) source codes, neighboring rights, database rights, portrait rights, trade secrets, knowhow, patent rights, model rights, trade name rights, trademark rights, rights related to semiconductor topographies, utility model rights, all in the broadest sense of the term, including all other intellectual property rights and any rights pertaining to them.
1.3 “Contractor”: Lalaland B.V. situated at Koningin Wilhelminaplein 1 (1062 HG) in Amsterdam, listed at the Dutch Chamber of Commerce (KvK) under number 76515419, and/or one of its affiliated entities.
1.4 “Client”: the natural or legal person who commissions, or has commissioned, the contractor, or has entered into a negotiation about an Order with the contractor and/or has requested a quotation from the contractor.
1.5 “Order”: the work commissioned as described in writing in the Agreement between the parties.
1.6 “Agreement”: a contract 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 such (software) applications belonging to third parties which form part of it.
1.8 “Goods”: physical objects, such as, but not limited to, data carriers (including any data stored on them), mood boards, designs, campaign material, packaging material, props and consumer articles.
1.9 “Services”: all services delivered or deliverable, and other work done within the framework of the Order by the Contractor and/or any third party commissioned by the contractor, including such work as has not been explicitly requested by the Client, and which the Contractor is under no obligation whatsoever to carry out.
Article 2. General
2.1 The General Terms and Conditions in this document apply to the conclusion of the Agreement, its contents, the execution of and compliance with all Agreements entered into by the Client and the Contractor, with the exclusion of the purchasing conditions and other conditions stipulated by the Client.
2.2 Deviations from and/or additions to these General Terms and Conditions are only valid if agreed to explicitly by the parties digitally/in writing.
2.3 The voidness or voidability of part of the General Terms and Conditions does not affect the validity of the remaining conditions. 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.
2.4 The Contractor is entitled to amend the General Terms and Conditions at any time and adapt, make additions to or remove parts of these Terms without prior notice. The Client will be informed of the changes in writing by post or via e-mail. The amended Terms and Conditions will apply (1) week after notification.
Article 3. Quotation and Agreement
3.1 All quotations, offers and proposals from the Contractor are non-binding, including those which contain an acceptance period. Unless explicitly otherwise specified, a validity period of four weeks from the date of issue applies. If the Client fails to accept the offer within this period the offer is void, entitling the Contractor to amend it. Orders bases on quotations are only binding on the part of the Contractor if confirmed in writing by said Contractor.
3.2 All images, specifications etc. included in the quotation are indicative only, unless otherwise specified.
3.3 The Contractor is not bound to the quotation price if the Client’s requirements exceed the original quotation specifications.
3.4 There is no obligation to deliver part of the Order for part of the price.
Article 4. Execution of the Agreement
4.1 The Contractor will endeavour to carry out the Order with due care and according to the Client’s best interests, and to aim for a result which will be of practical use to the Client.
4.2 The Contractor will, to the extent necessary, inform the Client of the progress of the work.
4.3 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 clear information or materials. If the Client fails in this regard the Contractor is entitled to suspend the execution of the Agreement and/or charge the Client for any costs resulting from the suspension. Any incomplete or inaccurate information/materials are at the Client’s expense.
4.4 The Client will ensure the Contractor is able to execute the Order to the proper standard and will be held liable for any ensuing damage should he fail to do so.
4.5 Any Order completion date quoted by the Contractor is indicative only.
4.6 Unless explicitly 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 form part of the Order and are not the responsibility of the Contractor.
4.7 If the Client cancels an Agreement in part or in its entirety he is obliged to compensate the Contractor for the (preparatory) work already carried out on his behalf. The obligation to pay compensation also applies if the Client was unaware that (preparatory) work on his behalf by the Contractor had already begun.
4.8 The Contractor will exercise due care when selecting any third party to carry out the work. He is, however, free to do so. Any costs incurred by the involvement of third parties will be charged to the Client.
4.9 The use of Goods (including products/services) of third parties by or on the instruction of the Client are at the Client’s expense and risk.
4.10 The Client indemnifies the Contractor from and against any claims from third parties resulting from the applications and/or use of the result of the Order.
4.11 Any estimate of the costs for contracting third parties made by the Contractor at the request of the Client will be indicative only. If required, the Contractor can request estimates from third parties on behalf of the Client.
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4.12 If the Contractor, based on the express agreement with the Client, procures goods or services from third parties at his own expense and risk, after which these goods and services are transferred to the Client, the provisions from the General Terms and Conditions with regard to quantity, quality, properties and delivery will also apply to the Client.
4.13 The Client is not entitled to transfer rights and obligations resulting from the Agreement to third parties without the written permission of the Contractor.
4.14 The Client indemnifies the contractor from and against any claims from third parties which suffer damage resulting from the execution of the Agreement and whose claims are attributable to the Client.
Article 5. Guarantee conditions
5.1 The Contractor will never provide a more extensive guarantee with regard to deliveries, or Services, than expressly agreed to by the parties.
5.2 The Contractor will, for the duration of the guarantee period, vouch for the accepted standard quality and reliability of the finished work.
5.3 When using materials needed to carry out the work the Contractor relies on the information about the properties of these materials given to him by the maker or supplier of the materials. If a guarantee has been provided for the materials by the maker orsupplier this guarantee will apply equally between the parties. The Contractor will inform the Client of this.
5.4 The Contractor does not guarantee, and can never be assumed to have guaranteed, that the delivered Goods are suitable for the purpose for which the Client wishes to edit, process, use or have others use these Goods, unless this has been expressly confirmed in writing to the Client. Under no circumstances does the Contractor guarantee results, returns and profitability.
5.5 In the event that the Client has legitimate cause to invoke the guarantee conditions the Contractor will be obliged to repair or replace the delivered Goods or the result of the Services provided, or properly execute the agreed on Services, or return all or part of the agreed price. It is up to the Contractor which of the options will apply. In case of additional damage the provisions in these general Terms and Conditions apply.
Article 6. Intellectual Property rights
6.1 The intellectual Property rights pertaining to the Goods and/or Services developed and delivered to the Client in the framework of the Agreement will remain exclusively with the Contractor or the third party from whom the Contractor has obtained the right of use.
6.2 The Client is not entitled to modify any concept or end product without the prior permission of the Contractor. The Contractor is free to refuse requests of this nature within the bounds of reasonableness, or stipulate conditions.
6.3 The Contractor is entitled at all times to imprint or remove (or have imprinted or removed) his name on the work. If the Contractor has imprinted such markings as indicate intellectual ownership, or has made notifications to indicate the ownership of Intellectual Property rights, the Client is not allowed to remove or modify these. In the absence of further
agreements the Contractor is entitled to use the design/concept, manufactured Goods and/or a description of the Services provided to the Client for purposes of publicity and promotion, including naming the Client as one of his clients.
6.4 Even if the Agreement does not expressly specify the competence, the Contractor is entitled to put in place technical provisions to protect software, equipment, data files and suchlike in connection with the agreed limitation of the contents or duration of the right of use of these Goods and Intellectual Property rights. The Client is never allowed to remove or bypass any technical provisions, or have them removed or bypassed.
6.5 Unless otherwise agreed, the Order does not include an investigation into the existence of Intellectual Property rights owned by third parties. This applies to, but is not limited to the inclusion, recording or processing of the supplied or otherwise prescribed material by the Contractor, in any shape or form.
6.6 The Client guarantees that no third party rights will impede the availability to the Contractor of equipment,software, material intended to be used for websites (visual material, tests, music, domain names, logos, hyperlinks etc.), data files or other materials, including concepts and design materials, with the aim of editing, installation or incorporation (for instance on a website). The Client indemnifies the Contractor from and against all third party claims based on the assertion that this availability to use, edit, install or incorporate constitutes an infringement of third party rights.
6.7 Unless otherwise agreed, the Contractor retains the the Intellectual Property rights to the working drawings, illustrations, prototypes, scale models, templates, designs, design sketches, mood boards, texts, Ims, photos and other materials or (electronic ) files and the Intellectual property rights pertaining to them, irrespective of whether these have been provided to the Client or third parties.
6.8 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 7. Use and licensing
7.1 To the extent that it is necessary for the Client’s use of the suppliedGoods and/or Services, the Contractor gives the Client a limited, non-exclusive, non-transferable and – unless a written agreement has been entered into – non-sublicensable right to use the Intellectual Property rights for those Goods and/or Services, on the condition that the provision under 7.3 has been complied with. The licence is included in the Agreement. If this is not the case, the provision applies that the Client can use the delivered Goods and/or Services on a one-off basis – i.e. once, without further reproductions – and in compliance with the fixed intentions stated at the time the Order was commissioned. These intentions need to be clearly stated by the Client to the Contractor prior to entering into the Agreement.
7.2 A request from the Client for a different or broader use of the Goods and/or Services must be the subject of a new written agreement. The Contractor is entitled to charge accordingly.
7.3 Only if the Client has fully complied with the (payment) obligations arising from the Agreement with the Contractor will he acquire the licence for use as specified under 7.1.
7.4 The Client is not entitled to (have others) use the Intellectual Property rights, including, but not limited to, goods protected by any Intellectual Property right, such as designs, in a way that exceeds or is different from the agreed purpose without the written permission of the Contractor. In the event of a broader, or different use, including modifications, mutilation or anything which affects the integrity of the work/Goods, the Contractor is entitled to compensation for the infringement of his or her rights, amounting to ten times the agreed fee, or a compensation that is commensurate with the infringement, without prejudice to his right to demand compensation for the actual damage sustained.
7.5 The Client is not, or no longer, allowed to use the Goods provided whereby any licence granted to the Client in connection with the Order will cease to operate:
- a) as long as/ from the moment the Client (partly) defauls on his (payment) obligations, or is otherwise in default, unless the default is of insignificant importance in the light of the entire Order;
- b) if , for whatever reason, the Order has been terminated early, unless the termination of the licence would be contrary to the principles of reasonableness and fairness.
Article 8. Privacy, data processing and security
8.1 If the Contractor has to process personal data on behalf of the Client the two parties will enter into a data processing agreement.
8.2 If the Contractor deems it relevant to the execution of the Agreement, the Client will, upon request, inform the Contractor without delay and in writing about the way he fulfils his legal obligations regarding the protection of personal data.
8.3 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 by the Client or for which the Client is otherwise legally responsible, unless the Client can demonstrate that the facts that underlie the claim are solely attributable to the Contractor.
8.4 The responsibility for the data which are processed using a service provided by the Contractor lies solely with the Client. The Client will vouch that the content, use and/or processing of the data are not illegal and do not infringe 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.
8.5 If, based on the Agreement, the Contractor is obliged to put in place data protection measures, said measures must comply with the security specifications agreed to by the parties in writing. The Contractor cannot at any time guarantee that the information protection measures will be effective in all circumstances. If no explicitly described security measures have been included in the Agreement, a level of security will be provided which, given the state of the art, the sensitivity of the data and the cost associated with security, is not unreasonable.
8.6 If the execution of the Agreement or other situations involve the use of computer, data or telecommunications facilities, the Contractor is entitled to assign entry or identification codes to the Client. The Contractor is entitled to change these codes. The Client will treat these codes confidentially and with due care and will only disclose them to authorised staff. The Contractor is never liable for any damage or costs resulting from the use or abuse of entry or identification codes, unless the abuse was a direct result of an attributable shortcoming or act of omission on the part of the Contractor.
Article 9. Compensation and payment
9.1 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 in connection with the execution of the Order.
9.2 All amounts quoted by the Contractor are in euros and are to be paid in euros by the Client, unless otherwise agreed in writing.
9.3 If, in the event of a non or late delivery of complete, reliable and clear data/materials or an amended or incorrect Order or briefing, the Contractor is forced to execute additional or different work/services, the cost of these will be based on the Contractor’s usual rate for extra work. This also applies to the delivery of goods and/or the execution of work/services which are not included in the quotation or which have been agreed on in writing at a later date.
9.4 Unless otherwise agreed in writing, the agreed price includes a licence fee which is expressly limited to the agreed publication and/or reproduction and which is in accordance with the order and/or print run agreed upon by the parties.
9.5 The Contractor is entitled to invoice the Client at monthly intervals for work/services performed and costs related to the execution of the Order.
9.6 Unless otherwise agreed, the Client must pay the invoice within fourteen (14) days of the invoice date .
9.7 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 comply with the terms of the Agreement.
9.8 In the event that the Client does not pay within the term specified under article 9.6 he will be in default by operation of the law and liable without further notice for the legal interest on the total invoice amount. Trade transactions are subject to the legal interest rate stated under article 6:119 a of the Dutch Civil Code.
9.9 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 the 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 or execution costs will also be charged to the Client. The Client is also liable for the interest on the recovery costs owed.
9.10 In the case of an advance payment, work on the Order will not commence until the advance payment invoice has been paid by the Client, unless otherwise agreed by the parties in writing.
9.11 In the event of non-fulfilment of any payment obligation by the Client, the Contractor is entitled to suspend the execution of all Orders as well as the licence and the delivery of Services and/or Goods. In the event, the Contractor is also entitled to obtain a freezing order, (temporarily) barring the Client from accessto and availability of these Services and/or Goods.
9.12 The Client is never entitled to set off a payment owed to the Contractor.
9.13 Objections against the invoice amount do not suspend payment obligation. Neither does 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 274 of book 6 of the Dutch Civil Code).
Article 10. Retention of title
10.1 The Contractor retains ownership of all goods delivered to the Client until all amounts owed by the Client as specified in the Agreement have been paid to the Contractor in full.
10.2 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 outstanding amounts.
Article 11. Complaints procedure
11.1 The Client is obliged to check the Goods and Servicesimmediately on delivery and report any visible deficiencies, damages, defects, imperfections and/ or discrepancies in numbers to the Contractor within 24 hours in a written specification.
11.2 The Client is obliged to check the documents supplied by the Contractor and which have not been presented to the Client in draft first immediately on reception. Any visible defects and/or deficiencies which can be established on a first check of the documents have to be reported to the Contractor no later than two working days after reception.
11.3 Other complaints regarding the supplied Goods and/or Services have to be reported to the Contractor as soon as possible but no later than ten working days after the completion of the Order, in writing and substantiated, failing which the Client is taken to have fully accepted the result of the Order.
11.4 Any consequences of late and unspecified written notifications of complaints are at the risk of the Client. Once the time limit for reporting a complaint has expired the Contractor is not liable in any way for any deficiencies or shortcomings, save in those cases in which the law does not permit such an exoneration.
11.5 The Client must enable the Contractor to investigate the complaint and supply the Contractor with all the information relevant to the complaint. The Client is obliged to keep the Goods in the state in which they have been received and have them ready for inspection.
11.6 If a complaint has not been reported within the terms and specifications mentioned under the preceding paragraphs and/or if inspection is not possible, the Goods and/or documents will be considered to have been received in good order and to comply with the terms of the Agreement, while Services will be considered to have been performed in accordance with the Agreement.
11.7 It is not possible to report a complaint about Goods whose nature and/or composition have been changed or completely or partially edited or processed after delivery.
11.8 Complaints do not suspend the Client’s payment obligation.
Article 12. Termination and dissolution of the Agreement
12.1 If the Client terminates the Agreement he will be obliged to pay the agreed compensation and any additional costs incurred by third parties, less any costs saved by the Contractor as a result of the termination.
12.2 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, said Client is obliged to pay the agreed compensation and the costs incurred for the work until then, as well as loss of profit. Any conduct on the part of the Client on the grounds of which the Contractor can no longer be reasonably required to complete the Order, will, in this context, also be considered as attributable failure.
12.3 Both the Contractor and the Client have the right to terminate the Agreement entirely or in part with immediate effect if either party faces bankruptcy or suspension of payment.
12.4 If, for whatever reason, 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 expressly otherwise agreed in writing.
12.5 If the commissioned work/Services consist(s) of repeatedly performed, similar work/Services the relevant Agreement will apply for a an indefinite term, unless otherwise agreed in writing. This Agreement can only be terminated in writing with due observance of a reasonable term of notice of at least six (6) months.
Article 13. Liability
13.1 Save in the event of intent or deliberate recklessness on the part of the Contractor’s management the Contractor’s liability for damage resulting from the Agreement or an illegal act committed against the Client is limited to the invoice amount related to the part of the Order to be executed, less the costs incurred by the Contractor for the engagement of third parties, provided the amount will not exceed €250,000 (two hundred and fifty thousand euros ) and will in any case be limited to the maximum amount paid out by the Contractor’s liability insurer in such an event.
13.2 Any liability will lapse one (1) year from the moment the Order has been completed.
13.3 The Client must, if reasonably possible, retain copies of the data and materials provided by him until the Order has been completed. Failure to do this will void any liability on the Contractor’s part for damage that might not have occurred if these copies had been extant.
13.4 The Contractor is liable only for damage which is directly attributable to him. Direct damage only includes:
- reasonable costs incurred to establish the cause and extent of the damage, in so far as this process is related to damage as understood in the General Terms and Conditions;
- the reasonable costs incurred of necessity to make the Contractor’s defective performance comply with the terms of 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 direct damage as understood in these General Terms and Conditions.
13.5 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 and materials, damage caused by business interruption or cybercrime, is excluded.
Article 14. Confidentiality
14.1 The parties undertake to treat the contents of the Agreement confidentially. This obligation does not apply to the Contractor if and insofar it is necessary to make the contents known to a third party as a result of a court ruling, legal regulation (including actions to establish and/or protect Intellectual Property) or to ensure the proper execution of the Agreement.
14.2 The parties will treat all information which they exchange prior, during or after the execution of the Agreement confidentially if this information has been marked confidential or if the receiving party knows or can reasonable assume that the information in question is meant to be confidential. The parties will oblige staff and any third parties involved in the execution of the Agreement to do the same.
Article 15. Disputes and applicable law
15.1 Any Agreement between the Contractor is subject to Dutch law only.
15.2 Jurisdiction in disputes which arise from, or are connected with, the Agreement between the Client and the Contractor fall under the exclusive jurisdiction of the competent subject matter court in Amsterdam, except in the case of the mandatory local jurisdiction of a court elsewhere.