See below the Terms and Conditions. There is a tab for the English and Dutch version. These terms and conditions are applicable for illustration, concept development and visual communication services provided by KESHA FELIPA. The terms and conditions for workshops and courses organized by KESHA FELIPA are found on the workshop page.
1 Agreement, quotations and confirmation
1.1 In this General Terms and Conditions (hereinafter: Terms and Conditions) are applicable to every offer, quotations and / or contractual legal relationship between the Client and the contractor KESHA FELIPA (hereinafter: Designer). Deviations from these Terms and Conditions can only be agreed in writing between the Client and the Designer.
1.2 Offers and quotations are non-committal and valid for two months. Quotation estimations can undergo adjustments due to unforeseen changes in proceeding activities. Estimates are excluding VAT. Rates agreed upon here are not automatically applicable to future contracts. The client guarantees the correctness and completeness of the information provided by or on its behalf to the Contractor on which the Contractor bases the quotation.
1.3 Contracts are to be confirmed in writing by the Client. If the Client neglects to do so, but nonetheless agrees that the Designer will start carrying out the contract, the content of the quotation will upheld as agreement and these Terms and Conditions will apply. Further verbal agreements and stipulations are only binding for the Designer after they have been confirmed in writing by the designer.
2 The execution of the agreement
2.1 The Designer makes every effort to carry out the contract carefully and independently, to represent the interests of the Client to the best of his knowledge and to strive for a useful result for the Client, such as can and may be achieved by a designer acting reasonably and professionally expected. Insofar as necessary, the Designer will keep the Client informed of the progress of the work.
2.2 The Client will do all that is reasonably necessary or desirable to enable a timely and correct delivery by the Designer, such as the timely delivery of complete, sound and clear data or materials. In which the designer indicates or of which the client understands or should reasonably understand that these are necessary for the performance of the agreement.
2.3 A term stated by the Designer for the execution of the contract is indicative, unless otherwise agreed in writing.
2.4 Unless otherwise agreed, the assignment of the Designer does not include:
a) performing tests, applying for permits and assessing whether the Client’s instructions meet legal or quality standards;
b) conducting research into the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties;
c) conducting research into the possibility of the under b. possible forms of protection referred to for the Client.
2.5 Before proceeding with execution, production, reproduction or publication, the parties give each other the opportunity to check and approve the latest models, prototypes or proofs of the result.
2.6 Deviations in the (final) result from what has been agreed are no grounds for rejection, discount, compensation or dissolution of the agreement, if these deviations, taking all circumstances into account, are reasonably of minor importance.
2.7 Complaints will be communicated to the Designer in writing as soon as possible, but in any case within ten working days after completion of the assignment, failing which the Client will be deemed to have fully accepted the result of the assignment.
3 Engaging third parties
3.1 Unless otherwise agreed, assignments are given to third parties in the context of the performance of the assignment, by or on behalf of the Client. At the request of the Client, the Designer can act as an agent at the expense and risk of the Client. The parties can agree on a further payment for this service.
3.2 If the Designer draws up a budget for the costs of third parties at the request of the Client, this budget is indicative. If desired, the Designer can request quotes on behalf of the Client.
3.3 If, in the performance of the assignment, the Designer obtains goods or services from third parties at her own expense and risk according, after which these goods or services are passed on to the Client, then the stipulation of the general terms and conditions of and / or separate agreements apply with the supplier with regard to the warranty and liability also towards the Client.
3.4 If the Designer, whether or not in the name of the Client, issues orders or directions to production companies or other third parties, the Client will confirm the approval referred to in Article 2.5 of these Terms and Conditions in writing at the request of the Designer.
3.5 The Client does not engage third parties without consultation with the Designer, if this may affect the performance of the assignment as agreed with the Designer. The parties will consult each other which other contractors will be engaged and which activities will be assigned to them.
3.6 The Designer 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 Designer. The Client must address these parties himself. The Designer can provide assistance with this if required.
4 Intellectual Property Rights and Property Rights
4.1 All intellectual property rights arising from the assignment – including patent right, trademark right, drawing or design right and copyright – on the results of the assignment belong to the Designer. Insofar as such a right can only be obtained through a deposit or registration, only the Designer is authorized to do so, unless otherwise agreed.
4.2 The parties can agree that the rights referred to in the first paragraph are 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 5 of these Terms and Conditions.
4.3 The Designer has the right at all times to mention or remove his / her name on, at or in publicity around the result of the assignment in the manner usual for that result. The Client is not permitted to publish or reproduce the result without the Designer’s name without the Designer’s prior consent.
4.4 Unless otherwise agreed, the (originals of the) results (such as designs, design sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photos, prototypes) , models, molds, prototypes, (partial) products, films, (audio and video) presentations, source codes and other materials or (electronic) files, etc.) are the property of the Designer, regardless of whether these are available to the Client or third parties posed.
4.5 After completion of the assignment, neither the Client nor the Designer have an accountability towards each other with regard retention obligation to the materials and data used, unless otherwise agreed.
5 Use of the result
5.1 When the Client fully complies with his / her obligations under the agreement with the Designer, he / she obtains 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 is limited to that use for which the order has (apparently) been given. The right to use is exclusive, unless the nature of the agreement dictates otherwise or otherwise agreed.
5.2 If the result also relates to works that are subject to third-party rights, the parties will make additional agreements on how the use of these works will be arranged.
5.3 Without written permission, the Client does not have the right to adjust the result of the assignment, to (re) use or execute it in a broader or different manner than agreed, or to have this done by third parties. The Designer may attach conditions to this permission, including the payment of fair compensation.
5.4 In the event of broader or different use not agreed upon, including modification, mutilation or damage to the provisional or final result, the Designer is entitled to compensation for infringement of his / her rights of at least three times the agreed fee, at least a compensation that is in reasonableness and fairness in proportion to the infringement committed, without losing any other right.
5.5 The Client is no longer permitted to use the results made available and any right to use granted to the Client in the context of the assignment will lapse, unless the consequences thereof are contrary to reasonableness and fairness:
a) from the moment that the Client does not or not fully fulfill his (payment) obligations under the agreement or is otherwise in default;
b) if the assignment is terminated prematurely for reasons stated in Article 8.1 of these Terms and Conditions;
c) in the event of bankruptcy of the Client, unless the relevant rights have been transferred to the Client in accordance with Article 4.2 of these Terms and Conditions.
5.6 With due observance of the interests of the Client, the Designer has the freedom to use the results for her own publicity, acquisition of assignments, promotion, including competitions and exhibitions, etc., and to obtain these on loan when it concerns physical results.
6 Fee and costs
6.1 The Designer is entitled to a fee for the execution of 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.
6.2 In addition to the agreed fee, the costs incurred by the Designer for the execution of the assignment, such as desk, travel and accommodation costs, costs for prints, copies, (printing) proofs, prototypes, costs of third parties for advice, production and guidance etc. are eligible for reimbursement. These costs are specified in advance as much as possible, except when a surcharge percentage is agreed.
6.3 If the Designer is forced to perform more or other work due to the late or non-delivery of complete, sound and clear data / materials, due to an amended or incorrect assignment or briefing, or due to external circumstances, these activities will be paid separately on the basis of the usual fee rates applied by the Designer. The Designer 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 postponement.
6.4 If the execution of the assignment is delayed or interrupted due to circumstances that cannot be attributed to the Designer, the Client is obliged to reimburse any costs that this entails. The Designer will try to limit the costs as much as possible.
7 Payment and Suspension
7.1 All payments must be made without deduction, set-off or suspension, within 30 days after the invoice date, unless otherwise agreed in writing or the invoice states otherwise.
7.2 All goods delivered to the Client remain the property of the Designer until all amounts that the Client owes the designer on the basis of the agreement concluded between the parties have been paid in full to the Designer.
7.3 If the Client is in default with full or partial payment of the amounts due, the client owes statutory interest and extrajudicial collection costs, which amount to at least 10% of the invoice amount with a minimum of € 150 excluding VAT.
7.4 The Designer ensures timely invoicing. In consultation with the Client, the designer may charge the agreed fee and costs as an advance, in the interim or periodically.
7.5 The Designer may suspend the execution of the assignment after the payment term has expired and the Client, after being reminded in writing, fails to pay within 14 days, or if the Designer must understand that payment due to a communication or action by the Client will be omitted.
8 Cancellation and termination of the agreement
8.1 If the Client terminates the agreement without culpable shortcomings by the Designer, or if the Designer terminates the agreement due to an attributable shortcoming in the performance of the agreement by the Client, then the Client, in addition to the fee and the incurred costs related to the work performed up to that point, will be liable to pay compensation. Conduct of the Client on the basis of which the Designer can no longer reasonably be expected to complete the assignment, are in this context also regarded as an attributable shortcoming.
8.2 The compensation referred to in the previous paragraph includes at least the costs arising from the commitments entered into by the Designer in her 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 will have paid in the event of full fulfillment of the contract.
8.3 Both the Designer and the Client have the right to immediately terminate the agreement in whole or in part, and all amounts due become immediately due and payable when an application for bankruptcy, (provisional) moratorium or debt rescheduling is submitted with regard to the other party.
8.4 If the work of the Designer consists of the repetitive performance of similar work, then there is a continuing performance agreement, unless otherwise agreed in writing. This agreement can 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 Designer or will compensate financially.
9 Warranties and Indemnities
9.1 The Designer guarantees that the delivered work has been designed by or on behalf of her and that, if the result is copyrighted, she is regarded as the maker within the meaning of the Copyright Act and that she can dispose of the work as copyright holder. The Designer guarantees that the result of the assignment at the time of its realization, as far as she knows or should reasonably know, does not infringe the rights of third parties or is otherwise unlawful.
9.2 When the Client uses the results of the assignment, the Client indemnifies the Designer or third parties engaged by the Designer in 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 liability of the Designer towards the Client for non-compliance with the guarantees as referred to in the previous paragraph and other liability as referred to in article 10 of these Terms and Conditions.
9.3 The Client indemnifies the Designer against claims relating to intellectual property rights on all materials and / or data provided by the Client that are used in the execution of the assignment.
10.1 In the event of an attributable shortcoming, the Designer must first be given written notice of default, with a reasonable period in which to still fulfill her obligations, or to correct any errors or to limit or eliminate damage.
10.2 The Designer is only liable to the Client for direct damage attributable to the Designer. Liability of the Designer for indirect damage, including consequential damage, lost profit, missed savings, mutilated or lost data or materials, or damage due to business interruption is excluded.
10.3 Except in the case of intent or deliberate recklessness on the part of the Designer, the liability of the Designer is limited to the fee of the designer for the assignment, at least that part of the assignment to which the liability relates. This amount does not exceed € 75,000 and is in any case limited at all times to a maximum of the amount that the insurer pays out to the Designer in the appropriate case. The amount for which the designer is liable in the relevant case is reduced by any sums insured by the Client.
11 Other stipulations
11.1 If the Client wishes to issue the same assignment to others than the Designer at the same time or has already given the assignment to another person before, he / she will inform the Designer stating the names of these others.
11.2 The client is not permitted to transfer any right from an agreement concluded with the designer to third parties, other than in the event of transfer of his / her entire company or with the written consent of the designer.
11.3 The parties are obliged to observe confidentiality 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 reasonably be understood that disclosure or communication to third parties could cause damage to the Designer or Client. Third parties involved in the performance of the assignment will be bound by the same confidential treatment with regard to these facts and circumstances originating from the other party.
11.4 If any provision of these Terms and Conditions is null and void or is nullified, the other provisions of these Terms and Conditions will remain in full force. In that case, the parties will enter into consultations with the aim of agreeing new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and scope of the void or voided provisions.
11.5 The headings in these Terms and Conditions only serve to promote readability and do not form part of these Terms and Conditions.
11.6 The agreement between the Designer and Client is governed by Dutch law. 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 court with jurisdiction according to the law, or the court in the district where the Designer is located, will take cognizance of disputes between the Designer and the Client at the choice of the Designer.
Last version: September 2020