Terms of conditions
The Dare Company
1 Agreement, offer and confirmation
1.1 These general terms and conditions, to the exclusion of purchase or other terms and conditions of the client, apply to the conclusion, content and performance of all contracts concluded between the client and The Dare Company.
1.2 Quotes are without obligation and are valid for 2 months. Quotations may undergo changes due to an unforeseen change in work. Prices are exclusive of VAT and other government levies. Mentioned rates and offers do not automatically apply to future assignments.
1.3 Orders must be confirmed by the client in writing. If the client fails to do so, but nevertheless agrees to The Dare Company commencing work on the assignment, the contents of the quotation shall be deemed to have been agreed. Further verbal agreements and stipulations shall only bind The Dare Company after they have been confirmed in writing by The Dare Company.
1.4 When the client wishes to simultaneously give the same assignment to others than The Dare Company or has already given the assignment to another person, he must inform The Dare Company, stating the names of these others.
2 Performance of the contract
2.1 The Dare Company shall make every effort to perform the assignment carefully and independently, to represent the client's interests to the best of its knowledge and to strive for a result that is useful to the client. To the extent necessary, The Dare Company will keep the client informed of the progress of the work.
2.2 The client is obligated to do everything that is reasonably necessary or desirable to enable timely and correct delivery by The Dare Company, in particular by timely supplying (or having supplied) complete, sound and clear data or materials.
2.3 A deadline specified by The Dare Company for completion of the design is indicative only, unless the nature or content of the contract indicates otherwise. The client must give The Dare Company written notice of default in the event the stated period is exceeded.
2.4 Unless otherwise agreed, carrying out tests, applying for permits and assessing whether instructions from the client comply with legal or quality standards do not form part of The Dare Company's assignment.
2.5 Prior to production, reproduction or publication the parties must give each other the opportunity to check and approve the latest models, prototypes or proofs of the design. If The Dare Company, whether or not in the name of the client, will give orders or instructions to production companies or other third parties, the client must confirm its above-mentioned approval in writing at the request of The Dare Company.
2.6 Complaints must be communicated to The Dare Company in writing as soon as possible, but in any case within ten working days after completion of the assignment, failing which the client shall be deemed to have fully accepted the result of the assignment.
3 Engagement of third parties
3.1 Unless otherwise agreed, instructions to third parties, within the framework of the realization of the design, will be given by or on behalf of the client. At the client's request The Dare Company can act as an agent for the client's account and risk. Parties may agree on a fee for this purpose.
3.2 In the event The Dare Company draws up an estimate for third party costs at the client's request, this estimate shall only be indicative. If desired, The Dare Company may request quotations on behalf of the client.
3.3 If in the execution of the order, The Dare Company procures goods or services from third parties for its own account and risk by express agreement, after which these goods or services are passed on to the client, the provisions of the general terms and conditions of the supplier with respect to the quality, quantity, capacity and delivery of these goods or services shall also apply to the client.
4 Rights of intellectual property and property rights
4.1 Unless otherwise agreed, all intellectual property rights arising from the order - including patent rights, design rights and copyright rights - belong to The Dare Company. Insofar as such a right can only be obtained by filing or registration, only The Dare Company is authorized to do so.
4.2 Unless otherwise agreed, the assignment does not include conducting research into the existence of rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties. The same applies to any investigation of the possibility of such forms of protection for the client.
4.3 Unless the work does not lend itself for it, The Dare Company is at all times entitled to mention or remove its name on or near the work (or have it mentioned) and the client is not allowed to publish or reproduce the work without mentioning the name of The Dare Company without prior permission.
4.4 Unless otherwise agreed, the working drawings, illustrations, prototypes, models, templates, designs, design sketches, films and other materials or (electronic) files created by The Dare Company in the context of the order will remain the property of The Dare Company, regardless of whether they were made available to the client or to third parties.
4.5 After completion of the assignment, neither the client nor The Dare Company have any obligation to each other to retain the materials and data used.
5 Use and license
5.1 When the client fully complies with his obligations under the agreement with The Dare Company, he acquires an exclusive license to use the design insofar as this concerns the right of publication and reproduction in accordance with the purpose agreed upon when the work was commissioned.
If no such purposes have been agreed, the license is limited to that use of the design for which firm intentions existed at the time the work was commissioned. These intentions must have been made known to The Dare Company prior to the conclusion of the contract.
5.2 Without the written consent of The Dare Company, the client is not entitled to use the design more extensively or in a different manner than agreed. In case of non-agreed broader or other use, including modification, mutilation or impairment of the preliminary or final design, The Dare Company is entitled to compensation due to infringement of his/her rights of at least three times the agreed fee, or at least a fee that is reasonably and fairly proportional to the infringement committed, without prejudice to the right of The Dare Company to claim compensation for the actual damages incurred.
5.3 The client is not (or no longer) permitted to use the results made available and any license granted to the client in the context of the assignment will lapse:
a. from the moment the client fails to (fully) fulfill his (payment) obligations under the agreement or is otherwise in default, unless the client's default is of minor significance in light of the assignment as a whole;
b. if the assignment, for whatever reason, is terminated early, unless the consequences are contrary to reasonableness and fairness.
5.4 The Dare Company, with due regard for the client's interests, shall be free to use the design for its own publicity or promotion.
6 Fee and additional costs
6.1 In addition to the agreed fee, the costs incurred by The Dare Company for the execution of the order are also eligible for reimbursement.
6.2 If The Dare Company is required to perform more or other work due to late delivery or non-delivery of complete, sound and clear data/materials or due to an amended or incorrect order or briefing, such work shall be charged separately, based on the usual fees charged by The Dare Company.
6.3 If the fee is in any way dependent on facts or circumstances, which must be evident from the client's records, The Dare Company has the right to have the client's records audited by an accountant of The Dare Company's choice after a statement from the client. If the outcome of the audit by the accountant differs by more than 2% or €100 from the statement and settlement by the client, the costs of this audit shall be borne by the client.
7.1 Payments must be made within 14 days of the invoice date. If after the expiry of this period no (full) payment has been received by The Dare Company, the client shall be in default and shall owe interest at the statutory rate. All costs incurred by The Dare Company, such as legal costs and extrajudicial and judicial costs, including costs for legal assistance, bailiffs and collection agencies, incurred in connection with late payments, shall 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.
7.2 The Dare Company has the right to charge its fee on a monthly basis for work performed and costs incurred for the execution of the order.
7.3 The client shall make payments due to The Dare Company without any discount or set-off, except for settlement against offsettable advance payments related to the contract, which he has provided to The Dare Company. The client is not entitled to suspend payment of invoices for work already performed.
8 Termination and dissolution of the agreement
8.1 If the client terminates a contract, he must pay, in addition to damages, the fee and costs incurred in relation to the work performed until then.
8.2 If the contract is terminated by The Dare Company due to an attributable failure by the client to perform the contract, the client must pay, in addition to damages, the fee and costs incurred in relation to the work performed until then. Conduct by the client on the basis of which The Dare Company can no longer reasonably be required to complete the assignment, shall in this context also be considered an attributable failure.
8.3 The damages referred to in the previous two paragraphs of this article will include at least the costs arising from obligations entered into by The Dare Company in its 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 would owe if the assignment were fully completed.
8.4 Both The Dare Company and the client have the right to immediately terminate the contract in whole or in part in case of bankruptcy or (provisional) suspension of payments of the other party. In case of bankruptcy of the client, The Dare Company has the right to terminate the granted right of use, unless the consequences are contrary to reasonableness and fairness.
8.5 In case of dissolution by the client due to an attributable failure of The Dare Company to fulfill its obligations, the performances already delivered and the related payment obligation shall not be subject to cancellation, unless the client proves that The Dare Company is in default with respect to those performances. Amounts that The Dare Company has invoiced before the dissolution in connection with what it has already duly performed or delivered in performance of the contract shall remain due in full with due observance of the previous sentence and shall become immediately payable at the time of dissolution.
8.6 If the work of The Dare Company consists of the repeated performance of similar work, then, unless otherwise agreed in writing, the applicable contract for that purpose will be valid for an indefinite period of time. This agreement may only be terminated by written notice, with due observance of a reasonable notice period of at least three months.
9 Warranties and indemnities
9.1 The Dare Company guarantees that the deliverables were designed by or on behalf of him/her and that, if the design is subject to copyright, he/she is considered the creator within the meaning of the Copyright Act and can dispose of the work as the copyright owner.
9.2 The client shall indemnify The Dare Company or persons engaged by The Dare Company for the assignment against all claims of third parties arising from the applications or use of the result of the assignment.
9.3 The client indemnifies The Dare Company for claims regarding intellectual property rights on materials or data provided by the client, which are used in the performance of the assignment.
10.1 The Dare Company shall not be liable for:
a. errors or shortcomings in the material provided by the client.
b. misunderstandings, errors or shortcomings with respect to the performance of the contract if these have their origin or cause in acts of the client, such as failure to deliver complete, sound and clear data/materials on time or at all.
c. errors or shortcomings of third parties engaged by or on behalf of the client.
d. errors in quotations from suppliers or for exceeding quotations from suppliers.
e. errors or shortcomings in the design or text/data, if the client has given his approval in accordance with the provisions of Article 2.5, or has been given the opportunity to carry out an inspection and has not availed himself of this opportunity.
f. errors or shortcomings in the design or the text/data, if the client has not had a particular model, prototype or test performed and these errors would have been visible in such model, prototype or test.
10.2 The Dare Company shall only be liable for direct damage attributable to it. Direct damage shall only mean:
a. reasonable costs to determine the cause and extent of the damage, to the extent the determination relates to damage within the meaning of these terms and conditions;
b. any reasonable costs necessary to have the faulty performance of The Dare Company comply with the agreement;
c. reasonable costs incurred to prevent or limit the damage, to the extent that the client demonstrates that these costs have led to a limitation of the direct damage referred to in these general terms and conditions.
Liability of The Dare Company for all damages other than the above, such as indirect damages, including consequential damages, lost profits, mutilated or lost data or materials, or damages due to business interruption, is excluded.
10.3 Except in case of intent or deliberate recklessness of The Dare Company or the management of The Dare Company - therefore excluding employees -, the liability of The Dare Company for damages pursuant to a contract or an unlawful act committed against the client is limited to the invoice amount relating to the executed part of the assignment, less the costs incurred by The Dare Company for the engagement of third parties, on the understanding that this amount will not exceed € 45. 000,- and in any case always limited to a maximum of the amount paid by the insurer to The Dare Company in the relevant case.
10.4 Any liability shall expire by the lapse of one year from the time the assignment is completed.
10.5 The client is obliged, if reasonably possible, to retain copies of materials and data provided by him until the assignment has been completed. If the client fails to do so, The Dare Company cannot be held liable for damages that would not have occurred had these copies existed.
11 Other provisions
11.1 The client is not permitted to transfer any rights from a contract concluded with The Dare Company to third parties, other than upon transfer of his entire company.
11.2 Parties are obliged to treat facts and circumstances, which come to the knowledge of the other party in the context of the assignment, confidential. Third parties involved in the performance of the assignment will be bound to the same confidential treatment with respect to these facts and circumstances originating from the other party.
11.3 The headings in these general terms and conditions serve only to facilitate readability and do not form part of these terms and conditions.
11.4 The contract between The Dare Company and client is governed by Dutch law. The court to hear disputes between The Dare Company and the client is the competent court in the district where The Dare Company has its registered office, or the competent court according to law, this at the discretion of The Dare Company.