1 Agreement, quote, and confirmation

 

1.1 These general terms and conditions apply, to the exclusion of any purchasing or other conditions of the client, to the formation, content, and performance of all agreements concluded between the client and the contractor.

1.2 Quotes are non-binding and are valid for 30 days. Price quotations may be subject to changes due to unforeseen changes in the work. Prices are exclusive of VAT and other government levies, unless explicitly stated. The mentioned rates and offers do not automatically apply to future orders.

1.3 Orders over €1000 must be confirmed in writing by the client, by returning the quote with a signature. Orders under €1000 may be confirmed by giving consent via email. If the client fails to do so but nevertheless agrees that the contractor may start performing the assignment, the content of the quote shall be deemed agreed upon. Further oral agreements and provisions shall only bind the contractor after confirmation in writing by the contractor.

1.4 If the client wishes to entrust the same assignment to others than this contractor at the same time, or has already entrusted the assignment to another party, he shall notify the contractor thereof, stating the names of these other parties.

 

2 Execution of the agreement

 

2.1 Unless otherwise agreed, the number of design iterations for each piece of digital content to be created shall be a maximum of 2. This means that the contractor delivers an initial design (round 1), delivers a new design or makes adjustments to the initial design (round 2).

2.2 The contractor shall make an effort to carefully and independently perform the assignment within the agreed number of design rounds, represent the interests of the client to the best of his knowledge, and strive for a usable result for the client.

2.3 The client shall do all that is reasonably necessary or desirable to enable the contractor to deliver on time and correctly, in particular by providing timely, complete, sound, and clear information or materials.

2.4 A term stated by the contractor for completing the digital content has an indicative meaning, unless the nature or content of the agreement indicates otherwise. In case of exceeding the stated term, the client shall notify the contractor of default in writing.

2.5 Unless otherwise agreed, testing, obtaining permits, and evaluating whether the client's instructions meet legal or quality standards are not part of the contractor's assignment.

2.6 Before proceeding with production, duplication, or disclosure, the parties shall give each other the opportunity to check and approve the final models, prototypes, or samples of the digital content. If the contractor, whether or not on behalf of the client, will give orders or instructions to production companies or other third parties, the client shall confirm his approval mentioned above in writing or by email at the request of the contractor.

2.7 Complaints must be communicated to the contractor 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 Engagement of third parties

 

3.1 Unless otherwise agreed, assignments to third parties in the context of the creation of the digital content shall be provided by or on behalf of the client. At the request of the client, the contractor can act as an agent, at the expense and risk of the client. The parties can agree on a further fee for this.

3.2 If the contractor prepares an estimate of third-party costs at the request of the client, this estimate will only be indicative. If desired, the contractor can request quotes on behalf of the client.

3.3 If, in the execution of the assignment, the contractor, according to explicit agreement, purchases goods or services from third parties at its own expense and risk, which goods or services are then passed on to the client, the provisions of the general terms and conditions of the supplier regarding the quality, quantity, nature, and delivery of these goods or services will also apply to the client.

 

4 Intellectual property rights and ownership rights

4.1 Unless otherwise agreed, all intellectual property rights resulting from the assignment, including patent rights, design rights, and copyright, belong to the contractor. If such a right can only be obtained by registration or deposit, only the contractor is authorized to do so.

4.2 Unless otherwise agreed, conducting research into the existence of third-party rights, including patent rights, trademark rights, design rights, copyright, or portrait rights, is not part of the assignment. The same applies to any research into the possibility of such forms of protection for the client.

4.3 Unless the work is not suitable for it, the contractor is always entitled to have their name mentioned on or with the work or to have it removed. The client is not allowed to publicly disclose or reproduce the work without the contractor's prior permission and without mentioning their name.

4.4 Unless otherwise agreed, all working drawings, illustrations, prototypes, models, designs, design sketches, films, and other materials or (electronic) files created by the contractor in the context of the assignment remain the property of the contractor, regardless of whether they have been handed over to the client or third parties.

4.5 Material provided by the client shall remain the property of the client, unless expressly agreed otherwise in writing.

4.6 With the consent of the client/contractor of the products, contractor will use the visual material, if applicable, for social media or its own website.

4.7 Upon completion of the project, neither the client nor the contractor shall have any obligation to retain the materials and data used with respect to each other.

 

5 Use and License

5.1 When the client fully complies with their obligations under the agreement with the contractor, they obtain an exclusive license to use the digital content to the extent that this concerns the right of publication and reproduction in accordance with the agreed destination for the assignment. If no agreements have been made about the destination, the license is limited to the use of the digital content for which established intentions existed at the time the assignment was given. These intentions must be demonstrably made known to the contractor before the agreement is concluded.

5.2 Without the written permission of the contractor, the client is not entitled to use the digital content more widely or in a different way than agreed. In the case of wider or other use not agreed upon, including modification, mutilation, or damage to the preliminary or final design, the contractor is entitled to compensation for infringement of their rights of at least three times the agreed fee, or a compensation that is reasonable and fair in proportion to the infringement, without prejudice to the contractor's right to claim compensation for actual damage suffered.

5.3 The client is no longer allowed to use the results made available and any license provided to the client in connection with the assignment will expire:

a. from the moment the client fails to fulfill their (payment) obligations under the agreement in full or otherwise defaults, unless the client's breach is of minor importance in the context of the entire assignment;

b. if the assignment is terminated prematurely for any reason, unless the consequences of such termination are contrary to reasonableness and fairness.

5.4 With due regard for the interests of the client, the contractor is free to use the digital content for their own publicity or promotion.

 

6 Maintenance and delivery of 3D artistic services

6.1 The contractor shall deliver the 3D artistic services according to the agreement in the agreed-upon format. This means that the 3D animations, 3D renders, and 3D models must be workable and usable in the agreed-upon format and suitable for the common software and digital media that are not older than 1 year on the day of delivery.

6.2 The client accepts that the 3D artistic services may not be compatible and fully functional with every software, computer, or digital medium. This may occur due to outdated software, computers, and digital media.

 

7 Remuneration and additional costs

7.1 In addition to the agreed-upon fee, the costs incurred by the contractor for the execution of the assignment shall also be eligible for reimbursement.

7.2 If the contractor is forced to perform additional or different work due to the late or incomplete delivery of reliable and clear data/materials, or due to a changed or incorrect assignment or briefing, these additional work activities shall be remunerated separately based on the usual fee rates applied by the contractor.

7.3 If the remuneration is dependent on facts or circumstances that must be revealed through the client's administration, the contractor shall have the right to have the client's administration checked by an accountant chosen by the contractor after receiving a statement from the client. If the outcome of the accountant's check deviates by more than 2% or € 100 from the statement and settlement by the client, the costs of this check shall be borne by the client.

 

8 Payment

8.1 After approval of the quote, the client will receive an invoice for the down payment, which amounts to 50% of the total. After receiving the down payment, the contractor will start the project. The final payment will take place after the project is completed, the maximum number of design rounds has been reached, or if the project takes longer than 30 days from day 30.

8.2 If the client wishes to receive files during an ongoing project, the full payment must also be made.

8.3 Payments must be made within 14 days of the invoice date. If the contractor has not received (full) payment after this period, the client is in default and is liable for interest equal to the statutory interest. All costs incurred by the contractor, such as legal costs and out-of-court and judicial costs, including the costs of legal assistance, bailiffs, and collection agencies, incurred in connection with late payments, will be borne by the client. The extrajudicial costs are set at a minimum of 10% of the invoice amount with a minimum of € 150, excluding VAT.

8.4 The contractor has the right to invoice his fee monthly for work performed and costs incurred for the execution of the project.

8.5 The client makes the payments due to the contractor without any discount or setoff, except for offsetting with recoverable advances relating to the agreement that he has provided to the contractor. The client is not entitled to suspend payment of invoices for work already performed.

 

9 Termination and dissolution of the agreement

9.1 If the client terminates an agreement, in addition to compensation, they must pay the fee and costs incurred up to that point for work already carried out.

9.2 If the contractor terminates the agreement due to attributable failure to fulfill the agreement by the client, in addition to compensation, the client must pay the fee and costs incurred up to that point for work already carried out. Behaviors of the client that make it no longer reasonable for the contractor to complete the assignment are also considered attributable failure.

9.3 The compensation referred to in the previous two paragraphs of this article will at least include the costs resulting from commitments entered into by the contractor with third parties for the fulfillment of the assignment on their own behalf, as well as at least 30% of the remaining part of the fee that the client would owe upon full completion of the assignment.

9.4 Both the contractor and the client have the right to immediately wholly or partially dissolve the agreement in the event of bankruptcy or (provisional) suspension of payment of the other party. In the event of the client's bankruptcy, the contractor has the right to terminate the granted right of use, unless the consequences of this are contrary to reasonableness and fairness.

9.5 In the event of termination by the client due to attributable failure to fulfill the obligations by the contractor, the already delivered performances and the related payment obligation will not be subject to cancellation, unless the client proves that the contractor is in default with regard to those performances. Amounts that the contractor has invoiced for the dissolution in connection with what they have already properly performed or delivered under the agreement will remain owed and will be immediately due and payable at the time of the dissolution, taking into account the provision in the previous sentence.

9.6 If the contractor's work consists of repeatedly performing similar work, the applicable agreement for this will, unless otherwise agreed in writing, be valid indefinitely. This agreement can only be terminated by written notice, with a reasonable notice period of at least three months.

 

10 Guarantees and indemnities

10.1 The contractor guarantees that the delivered work has been designed by him/her or on his/her behalf and that, if the digital content is protected by copyright, he/she is considered the creator in the sense of the Copyright Act and can dispose of the work as the copyright holder.

10.2 The client indemnifies the contractor or any persons engaged by the contractor for the project against all claims by third parties arising from the use of the result of the project.

10.3 The client indemnifies the contractor against claims relating to intellectual property rights in materials or data provided by the client and used in the execution of the project.

 

11 Liability

11.1 The contractor is not liable for:

a. errors or deficiencies in the materials provided by the client.

b. misunderstandings, errors, or deficiencies regarding the execution of the agreement if these are caused by actions of the client, such as not providing timely, complete, and clear data/materials.

c. errors or deficiencies of third parties engaged by or on behalf of the client.

d. defects in quotations from suppliers or for exceeding price estimates from suppliers.

e. errors or deficiencies in the digital content or text/data if the client has given his approval in accordance with Article 2.5 or has been given the opportunity to perform a check and has not used it.

f. errors or deficiencies in the digital content or text/data if the client has not produced or had a certain model, prototype, or test executed and these errors would have been visible in such a model, prototype, or test.

11.2 The contractor is only liable for attributable, direct damages. Direct damages are only understood to mean:

a. reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damages within the meaning of these terms and conditions;

b. any reasonable costs necessary to make the contractor's defective performance comply with the agreement;

c. reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to a limitation of direct damages as referred to in these general terms and conditions. The contractor's liability for all other damages, including indirect damages, consequential damages, loss of profit, mutilated or lost data or materials, or damage caused by business interruption, is excluded.

11.3 Except in case of willful intent or gross negligence on the part of the contractor or the contractor's management -excluding subordinates- the contractor's liability for damages under an agreement or tort against the client is limited to the invoice amount relating to the executed part of the project, reduced by the costs incurred by the contractor for the engagement of third parties, provided that this amount will not exceed € 45,000 and, in any case, will be limited to the amount that the insurer pays out to the contractor in the event in question.

11.4 Any liability expires after one year from the moment the project is completed.

11.5 The client is obliged, if reasonably possible, to keep copies of the materials and data provided by him/her. If the client fails to do this, the contractor cannot be held liable for damage that would not have occurred if these copies had existed.

 

12 Other provisions

12.1 The client is not permitted to transfer any rights arising from an agreement concluded with the contractor to third parties, except in the case of the transfer of his entire business.

12.2 Parties are obliged to treat confidentially any facts and circumstances that come to the knowledge of the other party in the context of the assignment. Third parties involved in the execution of the assignment shall be bound to the same confidential treatment with regard to these facts and circumstances originating from the other party.

12.3 The headings in these general terms and conditions are for readability purposes only and do not form part of these terms and conditions.

12.4 The agreement between the contractor and the client is governed by Dutch law. The court with jurisdiction to hear disputes between the contractor and the client is the competent court in the district where the contractor is established, or the court with jurisdiction under the law, at the contractor's choice.
 

13 Definitions:

13.1 Digital content: In these general terms and conditions, the term "digital content" refers to the 3D visualizations, animations, models, and other digital creative works that are created and delivered by the contractor in the scope of the services of Trespro.