general terms + conditions

1. authorisation of the contract & quotation

1.1 These General Terms and Conditions (“General Terms and Conditions”) govern all quotations and all contracts concluded between the Client (the “Client”) and the contractor (“Studio Flora”). Deviations from these General Terms and Conditions may be agreed on between the Client and Studio Flora only in writing.

1.2 All quotations are non-binding and are valid for 1 (one) month. Prices quoted may be subject to change due to unforeseen changes in the work. Prices are exclusive of VAT. Rates and discounts do not automatically apply to future quotations. The Client warrants that the information given to Studio Flora by him/her or on his/her behalf and upon which Studio Flora bases the quotation is correct and complete.

1.3 Quotations are confirmed in writing by the Client. If the Client fails to do so but consents to Studio Flora commencing the commissioned work, the terms of the quotation are deemed to have been agreed on and these General Terms and Conditions apply. Any subsequent oral agreements and stipulations are not binding to Studio Flora until confirmed in writing.

2. implementation of the contract

2.1 Studio Flora must make every effort to execute the commissioned work carefully and independently, to promote the Client’s interests to the best of his or her ability and to aim to achieve a result that is useful to the Client, as can and may be expected of a reasonably and professionally acting designer.

2.2 The Client must do any and all things that are reasonably necessary and/or required to enable Studio Flora to deliver punctually and properly, such as supplying (or facilitating the provision of) complete, sound and clear data and/or materials in a timely manner.

2.3 Terms stated by Studio Flora regarding the execution of the commissioned work are approximations only, unless otherwise agreed upon in writing.

2.4 Unless otherwise agreed, the following do not form part of the commissioned work to Studio Flora:

2.5 Prior to execution, production, reproduction or publication, the parties must give each other the opportunity to check and approve the final draft of the prototypes or deliverables of the resulting commissioned work

2.6 Differences between the (final) commissioned work and the concluded agreements do not serve as grounds for rejection, discount, damages or dissolution of the contract if those differences are reasonable or of minor importance, taking all circumstances into account.

2.7 Any complaints must be filed with Studio Flora in writing with the shortest possible delay and no later than 10 (ten) business days following completion of the commissioned work, failing which the Client is deemed to have accepted the result of the commissioned work in its entirety.

3. outsourcing of third parties

3.1 Unless otherwise agreed, instructions to third parties concerning the execution of the commissioned work are given by or on behalf of the Client. At the Client’s request Studio Flora may act as an agent for the Client’s account and risk. The parties may agree on a fee for such agency.

3.2 If Studio Flora provides an estimate of third-party costs at the Client’s request, that estimate is an approximation only. If required, Studio Flora may apply for quotations at third parties on the Client’s behalf.

3.3  Should Studio Flora procure goods or services from third parties when carrying out the commissioned work, at their own account and risk and on the basis of an express contract with the Client, whereby those goods or services are delivered, passed on or resold to the Client, these general conditions of and/or any separate contracts concluded with that supplier also apply to the Client. Studio Flora will allow the Client to discuss the general conditions of and/or separate contracts with the supplier.

3.4  If Studio Flora gives commissions or instructions to production companies or other third parties in the Client’s name or otherwise, the Client will confirm in writing at Studio Flora’s request the approval of these General Terms and Conditions as referred to in Article 2.5

3.5  The Client will not engage any third parties without prior consultation with Studio Flora should that influence the execution of the commissioned work as agreed upon with Studio Flora. The Parties will consult, if necessary, as to which third parties will be engaged and which work will be assigned to them.

3.6  Studio Flora is not liable for any errors or defects of products or services of third parties engaged by or on behalf of the Client, irrespective of whether they have been introduced by Studio Flora. The Client itself must hold those parties accountable. Studio Flora may assist in that regard if necessary.

4. intellectual property rights

4.1  All intellectual property rights concerning the executed commissioned work belong to Studio Flora. Insofar as any of such rights can be acquired only by means of an application or registration, Studio Flora will have the sole and exclusive power to effect that application or registration, unless otherwise agreed. The “intellectual property rights” expressly include copyrights, databank rights, neighbouring rights, trademark rights, design rights, patents, domain name rights, know-how, commercial knowledge, trade secrets, and all similar rights, wherever they arise in the world, whether or not registrable, and including applications for them.

4.2  The parties may agree that the rights referred to in paragraph 1 are transferred in whole or in part to the Client. Such transfer and the conditions, if any, on which the transfer takes place must always be recorded in writing. Until the moment of transfer and payment of the agreed fee for that purpose, a right of use is granted as regulated in Article 5 of these General Terms and Conditions.

4.3 Studio Flora has the right at all times to have his/her name mentioned or removed from the resulting commissioned work or any publicity surrounding the resulting commissioned work – in a manner which is appropriate to the given work. Without Studio Flora’s prior consent the Client may not publish or reproduce the resulting commissioned work without identifying Studio Flora by name.

4.4  Unless otherwise agreed, the original or other resulting commissioned work (such as designs, design sketches, drafts, advice, reports, budgets, estimates, specifications, design drawings, illustrations, photographs, prototypes, scale models, templates, prototypes, products and partial products, films audio and video or other presentations, source codes, source files and other materials or (electronic) data files etc.) made by Studio Flora as part of the commissioned work remain the Studio Flora’s property, irrespective of whether they have been made available to the Client or to third parties. The Parties may agree on a fee for the transfer of these results.

4.5  On completion of the commissioned work, the Client and Studio Flora will have no obligation to retain the original or other resulting work produced by Studio Flora, as referred to in 4.4, unless otherwise agreed.

5. use of the commissioned work

5.1  Once the Client has fulfilled all his/her obligations arising from the contract with Studio Flora, he/she acquires the right to use the licence for the resulting commissioned work in accordance with its original purpose. If no such specific purpose has been agreed upon, the right of use is limited to the right of use (manifestly) intended for the design work. The right of use is exclusive, unless otherwise apparent from the nature of the contract or otherwise agreed.

5.2  Should the resulting commissioned work also concern work which is subject to third-party rights, the parties will conclude additional contracts on how the use of those works will be regulated.

5.3  Without Studio Flora’s prior written consent, the Client is not entitled to change the resulting commissioned work, or to use or reuse it in a broader or different manner than agreed, or to allow third parties to do so. Studio Flora may give that consent subject to conditions, including payment of an additional fee.

5.4  In the event of broader or different use upon which no agreement was reached, including any modification, change or infringement of the provisional or final result, Studio Flora is entitled to compensation on the grounds of infringement of his/her rights of at least three times the agreed fee, or a fee that is proportional to the infringement committed, without losing any other rights.

5.5  Unless Studio Flora gives prior consent, the Client is not (or no longer) permitted to use the resulting commissioned work or to further develop it or have a third party develop it. Each right of use (licence) granted to the Client in the context of the commissioned work will expire, unless the consequences conflict with the rules of reasonableness and fairness:

5.6  With respect of the Client’s interests, Studio Flora is free to use the commissioned work at his/her discretion for his/her own publicity, to secure commissions, for promotional purposes, including use on the internet, to create cases, websites and social media, competitions and exhibitions, etc.,

6. fees and additional costs

6.1  Studio Flora is entitled to a fee to carry out the commissioned work. That fee may consist of an hourly rate, a consultancy fee, a fixed amount or a fee agreed between the parties. Additional fees may be incurred for requests which fall outside of the scope of the quotation, such as additional correction rounds or revisions.

6.2  In addition to payment of the agreed fee, Studio Flora is entitled to reimbursement of any costs incurred upon executing the commissioned work, such as administrative overheads, travel and accommodation expenses, printing costs, typography or photography costs, copies, print proofs and prototypes, hosting, software, and costs to third parties related to advice, production, supervision, etc. Those costs must be itemised beforehand to the extent possible, unless a mark-up percentage is agreed on.

6.3  If Studio Flora is required to perform additional or other work due to late delivery or non-delivery of complete, sound and clear information and/or materials, any change or error in instructions or briefings, or any external circumstances, such additional work is charged separately on the basis of Studio Flora’s usual fees. Studio Flora will inform the Client accordingly beforehand unless this is impossible due to the given circumstances, or unless the nature of the work does not allow for any delay.

7. payment and deferral

7.1  Studio Flora is responsible for sending invoices in a timely manner. In consultation with the Client, Studio Flora may charge the agreed fee and costs as an advance, in the interim or periodically.

7.2  All payments must be made without any deduction, clearance or deferral within two weeks of the invoice date, unless otherwise agreed in writing or stated in the invoice.

7.3  All design work or related goods delivered to the Client remain the property of Studio Flora, until the total amount owed by the Client has been paid to Studio Flora, under the contract concluded between the parties.

7.4  Should the Client fail to pay all or part of the amount due, the Client owes statutory interest and out-of court costs for collection, amounting to at least 10% of the invoice amount, subject to a minimum of € 150, excluding VAT

7.5  Studio Flora may suspend carrying out the commissioned work after the payment term has expired and the Client, following a written request to make the payment within 14 days, fails to make that payment, or if Studio Flora is forced to conclude on the grounds of the Client’s communication or conduct that the payment will not be made.

8. attributable breach, notice of termination and dissolution of the contract

8.1  In the event of an attributable breach, the aggrieved party must first give the other party a written notice of default, granting the other party a reasonable period in which to still comply with his/her obligations, to remedy mistakes, or to limit or undo damage. The notice of default must contain as detailed a description of the breach as possible.

8.2  If the Client gives notice of early termination of the contract, without any attributable breach on the part of Studio Flora, or if Studio Flora dissolves the contract on the grounds of a breach by the Client in the fulfilment of the contract, the Client is liable for damages in addition to Studio Flora’s fee and the costs incurred as a result of the work carried out until that time. Any conduct by the Client on the grounds of which Studio Flora cannot reasonably be expected to complete the commissioned work is also regarded as an attributable breach.

8.3  The damages referred to in the preceding paragraph of this Article include at least the costs arising from obligations undertaken by Studio Flora in his/her own name with third parties to carry out the commissioned work, as well as 30% (thirty per cent) of the amount of the fee that the Client would owe Studio Flora if the commissioned work was completed in full.

8.4  Both Studio Flora and the Client have the right to dissolve the contract in whole or in part with immediate effect, and all amounts due are payable immediately, in the event that a petition for bankruptcy, or a petition for a deferral, or provisional payment deferral, or debt restructuring is filed in respect of the other party, or if the other party dies.

8.5  If Studio Flora’s work consists of recurrently carrying out work of a similar nature, this is a continuing performance contract (duurovereenkomst), unless otherwise agreed in writing. Such a contract may be terminated only by written notice given while observing a reasonable notice period of no less than 3 (three) months, during which period the Client must continue to purchase the customary amount of work from Studio Flora or compensate Studio Flora financially for loss of turnover and costs incurred.

9. warranties and indemnities

9.1  Studio Flora warrants that the commissioned work has been designed by him or her, or on his or her behalf and, if the work is copyright-protected, that Studio Flora is the author with respect to the Auteurswet (Dutch Copyright Act) and as the copyright holder has power of disposition over the work. Studio Flora warrants that, as far as he/she knows or reasonably ought to know, the commissioned work does not infringe any third-party rights and is not otherwise unlawful.

9.2  The Client indemnifies Studio Flora or persons engaged by Studio Flora in the execution of the resulting commissioned work against any third-party claims arising from the application or use of resulting commissioned work. This is without prejudice to Studio Flora’s liability towards the Client for failure to comply with the warranties referred to in the preceding paragraph and any other liability as referred to in Article 10 of these General Terms and Conditions.

9.3  The Client indemnifies Studio Flora for any claim or action related to intellectual property rights for materials or information supplied by the Client and used to carry out the commissioned work.

10. liability

10.1 Studio Flora is only liable for direct damage suffered by the Client that is the direct and sole result of a breach in performing the commissioned work that is attributable to Studio Flora. Studio Flora’s liability for consequential and indirect damage, including, but not limited to, loss of profits, loss savings, damage to his/her image, corrupted or lost data or materials, or damage due to business interruption is excluded.

10.2  Except in the event of intent or wilful recklessness on the part of Studio Flora, Studio Flora’s total liability is limited to the fee that he or she charged for the commissioned work, or at least the part of the assignment to which the liability relates.. That amount may not exceed EUR 75,000 and is always capped at the amount paid to Studio Flora by the insurance company in that case. The amount for which Studio Flora is liable in the case in question is reduced by any sums insured by the Client.

10.3  Any and all liability expires two years from the date that the commissioned work ended, on the grounds of completion, termination or dissolution.

11. privacy

If Studio Flora has to process the Client’s personal data, or of the Client’s customers, for the purpose of the services to be performed, Studio Flora will be regarded as the ‘processor’ and the Client as the ‘controller’ within the meaning of the General Data Protection Regulation (GDPR) and a processing agreement will be concluded.

12. force majeure

12.1  If one party fails to fulfil his/her obligations but this failure cannot be attributed to him/her (force majeure), that party is not liable and fulfilling that obligation is suspended for as long as the force majeure situation lasts.

12.2  Force majeure includes, but is not limited to, weather conditions, fires, strikes, illness, pandemics, epidemics, war and other violence, hacks, cyber attacks or other technical failures and resulting circumstances, such as government interventions, including quarantine measures, which reasonably prevent one party from fulfilling obligations and leading to delays, as well as delays or failures of suppliers and/or other third parties involved in the execution of the contract.

12.3 If one of the parties invokes force majeure, he/she must inform the other party in writing as soon as possible, citing the necessary supporting documents/reasons.

12.4  If the force majeure situation has lasted for 60 (sixty) days, either party may terminate all or part of the contract, insofar as the force majeure situation justifies termination.

12.5  If force majeure occurs, Studio Flora will be entitled to the portion of the fee for the work that he/she has performed and to be reimbursed for the costs that he/she has already incurred or that are unavoidable, for instance in connection with orders and instructions to third parties that cannot be cancelled any longer without liability for compensation.

13. other provisions

13.1  If the Client wishes to commission the work at the same time to parties other than Studio Flora or has previously already commissioned the work to another party, he/she must inform Studio Flora of this in advance.

13.2  The Client is not permitted to transfer or assign any of the rights of the contract concluded with Studio Flora to third parties, except in the event of transfer of his/her entire business or with Studio Flora’s prior written consent.

13.3 Both parties are obligated to maintain the confidentiality of all confidential information, facts and circumstances that come to the attention of the other party in the context of the commissioned work, from each other or from another source, of which it can reasonably be understood that disclosure or communication to third parties would damage Studio Flora or the Client. The parties must impose the same duty of confidentiality to their employees, or third parties engaged in carrying out the commissioned work, with regard to these facts and circumstances originating from the other party.

13.4 If any provision of these General Terms and Conditions is null and void or is annulled, the other provisions of these General Terms and Conditions will remain in full force. Should this happen, the parties will consult with the aim of agreeing on new provisions to replace the void or voided provisions that are as closely as possible in keeping with the purpose and scope of the void or voided provisions.

13.5  The headings of these General Terms and Conditions have been included for easy reference only and do not form part of these General Terms and Conditions.

13.6  These General Terms and Conditions may be amended at any time. Studio Flora will inform the Client of any amendments.

13.7  All agreements between Studio Flora and the Client are governed by Dutch law. The parties will first attempt to settle any dispute by agreement. Unless the parties have expressly agreed in writing on arbitration, the court that has jurisdiction by law or the court in the district in which Studio Flora has its registered office has jurisdiction to hear and decide on any disputes between Studio Flora and the Client.