Terms and conditions
ATELIER VAN LIESHOUT GENERAL TERMS AND CONDITIONS
1 Agreement, offer and confirmation
1.1 These general terms and conditions (hereinafter: the “General Terms and Conditions”) apply to all offers and to the formation, the contents and the performance of all agreements concluded between the client and the party accepting the order (hereinafter “Atelier Van Lieshout”). Departures from these General Terms and Conditions can only be agreed between the client and Atelier Van Lieshout in writing.
1.2 Quotations are issued without obligation and are valid for 2 months. Estimates may be subject to change due to unforeseen changes in the work. Prices are inclusive of Dutch VAT (9%). The rates and offers that are specified do not automatically apply to future orders. The client warrants that the details furnished by it or on its behalf to the artist, on which Atelier Van Lieshout bases its quotation, are correct and complete.
1.3 Orders must be confirmed by the client in writing. If the client fails to do so, but gives its consent for Atelier Van Lieshout to start carrying out the order, the contents of the quotation are deemed to have been agreed and these General Terms and Conditions apply. More detailed verbal arrangements and stipulations are only binding on Atelier Van Lieshout after it has confirmed them in writing.
2 Performance of the agreement
2.1 Atelier Van Lieshout will use its best endeavours to carry out the order with due care and independently, to promote the client’s interests to the best of its knowledge and to strive for a result that will be useful to the client, as can and may be expected of an artist acting reasonably and professionally. So far as necessary, Atelier Van Lieshout will keep the client informed of the work’s progress.
2.2 The client will do all that is reasonably necessary or desirable to enable the artist or supplier to make timely and correct delivery, such as promptly supplying complete, reliable and clear data or materials that Atelier Van Lieshout has indicated, or the client understands or should reasonably understand, are needed for the performance of the agreement.
2.3 Any deadline stated by Atelier Van Lieshout by which to carry out the order is indicative only, unless otherwise agreed in writing.
2.4 Unless otherwise agreed, delivery takes place directly from the factory / warehouse.
2.5 Complaints must be communicated to Atelier Van Lieshout in writing as soon as possible but in any case within ten working days of completion of the order, failing which the client will be deemed to have accepted the result of the order in full.
3 Enlisting third parties
3.1 Atelier Van Lieshout is permitted to enlist third parties for and during the performance of an order. At the client’s request, Atelier Van Lieshout can act as an authorised agent of the client, for the client’s expense and risk. The parties may arrange a fee, yet to be specified, for this.
3.2 If, at the request of the client, Atelier Van Lieshout draws up a budget for the costs of third parties, this budget is indicative only. If desired, Atelier Van Lieshout can request quotations on behalf of the client.
3.3 While carrying out the order, if Atelier Van Lieshout purchases items or services from third parties for its own expense and risk, in accordance with an explicit arrangement, after which these items or services are passed to the client, then the provisions of the general terms and conditions of and/or separate arrangements with the third-party supplier in relation to the guarantee and to liability will also apply towards the client.
3.4 If Atelier Van Lieshout issues orders or instructions to production companies or other third parties, whether on behalf of the client or otherwise, the client will confirm its approval in writing to the third party concerned if asked to do so by Atelier Van Lieshout.
3.5 Atelier Van Lieshout is not liable for faults or defects in products or services of third parties enlisted by or on behalf of the client, whether those third parties were introduced by Atelier Van Lieshout or not. The client must itself hold these third parties to account. In such cases, Atelier Van Lieshout can provide assistance if desired.
4 Intellectual property rights and title
4.1 All intellectual property rights to the results of the order arising from the order – including patent rights, trade mark rights, design or model rights and copyrights – accrue to Atelier Van Lieshout. To the extent that such a right can only be obtained by means of filing or registering it, Atelier Van Lieshout is exclusively authorised to do so, unless otherwise agreed.
4.3 Atelier Van Lieshout is at all times entitled to have its name mentioned in, or removed from, publicity in relation to the result of the order, in the manner customarily used for that result.
4.4 Unless otherwise agreed, the originals of the result that have been created by Atelier Van Lieshout in the context of the order (such as designs, design sketches, drafts, recommendations, reports, budgets, estimates, specifications, working drawings, illustrations, photographs, prototypes, scale models, moulds, products or parts of products, films, audio, video and other presentations, source codes and other materials or files, electronic files, etc.) will remain the property of Atelier Van Lieshout regardless of whether they are made available to the client or to third parties.
4.5 After the order is completed, neither the client nor Atelier Van Lieshout will be obliged to retain the materials and data used, unless otherwise agreed.
5 Use of the result
5.1 After the client has complied in full with its obligations arising from the agreement with Atelier Van Lieshout, it will be entitled to use the result of the order in accordance with the agreed purpose. If no arrangements have been made as to the purpose, then the right of use will remain limited to the use for which the order was apparently issued. The right of use is exclusive, unless another form of use arises from the nature of the agreement or unless otherwise agreed.
5.2 If the result also relates to works that are subject to rights of third parties, the parties will make further arrangements as to how the use of these works will be regulated.
5.3 Without written consent, the client may not alter the result of the order, use or reuse it or implement it in a broader or different manner than has been agreed, or allow the third parties to do so. Atelier Van Lieshout may attach conditions to any such consent, including the payment of fair compensation.
5.4 If the result is used more broadly or differently to what was agreed, which includes alteration, mutilation or impairment of the provisional or final result, Atelier Van Lieshout is entitled to a payment for infringement of its rights equivalent to at least three times the agreed fee, or at least to compensation that is reasonably and fairly proportionate to the infringement, without losing any of its other rights.
5.5 The client will not be, or will no longer be, permitted to use the results provided to it, and all rights of use granted to the client in the context of the order will be cancelled unless the consequences would be contrary to reasonableness and fairness:
A. from the time when the client fails to comply or to comply in full with its obligations on the basis of the agreement, including its obligations to make payment, or is otherwise in breach;
B. if the order is terminated prematurely for reasons named in Clause 8.1 of these General Terms and Conditions;
C. if the client is declared insolvent, unless the rights concerned were transferred to the client pursuant to Clause 4.2 of these General Terms and Conditions.
5.6 With due regard to the client’s interests, Atelier Van Lieshout is at liberty to use the results for its own publicity, acquisition of orders, promotional activities, including competitions and exhibits, etc., and to obtain them on loan, if the results are tangible.
6 Payment and suspension
6.1 All payments must be made without discount, set-off or suspension and within 14 days of the invoice date, unless otherwise agreed in writing or unless the invoice states otherwise.
6.2 All items delivered to the client will remain the property of Atelier Van Lieshout until all amounts owed by the client to Atelier Van Lieshout pursuant to the agreement concluded between the parties have been settled in full.
6.3 Atelier Van Lieshout will arrange for timely invoicing. In consultation with the client, Atelier Van Lieshout may charge an agreed fee and costs in the form of advance payments, interim payments or periodically.
6.4 Atelier Van Lieshout may suspend the performance of the order after the payment period has expired and the client has been sent a written reminder to make payment within 14 days, but has not done so, or when Atelier Van Lieshout is given to understand from a communication or from the client’s behaviour that payment will not be made.
7 Cancellation and dissolution of the agreement
7.1 Cancellation of the agreement can only take place after consultation with and after written consent from Atelier Van Lieshout under the conditions set by Atelier Van Lieshout.
7.2 If the client cancels the agreement and there is no imputable failure on the part of Atelier Van Lieshout, or if Atelier Van Lieshout dissolves the agreement because of an imputable failure by the client to perform the agreement, the client will owe an amount as compensation, in addition to the fee and the costs incurred for the work carried out up to that point. Conduct of the client on the basis of which the artist can no longer reasonably be required to complete the order will also be deemed to be an imputable failure in this context.
7.3 The compensation referred to in the preceding paragraph will include at least the costs arising from the obligations assumed towards third parties by Atelier Van Lieshout in its own name in order to carry out the order, as well as at least 30% of the remainder of the fee that the client would owe if the order were completed in full.
7.4 Atelier Van Lieshout is entitled to dissolve the agreement in full or in part with immediate effect, and all outstanding amounts will immediately become due and payable, if an application is filed for the client’s insolvency, for suspension or provisional suspension of payments or for debt rescheduling.
8 Guarantees and indemnifications
8.1 If the client uses the results of the order, the client will indemnify Atelier Van Lieshout or third parties enlisted by the artist for the order against all claims by third parties arising from the application or use of the result of the order. This is without prejudice to the liability of Atelier Van Lieshout to the client for non-performance of the guarantees referred to in the preceding paragraph and other liability referred to in Clause 10 of these General Terms and Conditions.
8.2 The client indemnifies Atelier Van Lieshout against claims in relation to intellectual property rights to all materials and/or data furnished by the client that are used in the performance of the order.
9 Other provisions
9.1 The parties are obliged to observe confidentiality in relation to all confidential information, facts and circumstances that come to their knowledge in the context of the order, whether from the other party or from any other source, if it can reasonably be understood that disclosure or communication of this information to third parties might cause harm to Atelier Van Lieshout or the client. Third parties involved in performing the order will also be bound to treat these facts and circumstances originating from the other party as confidential.
9.2 If any provision of these General Terms and Conditions is void or is declared invalid, the other provisions of these General Terms and Conditions will continue to apply in full. In that case, the Parties will enter into consultations with the object of agreeing new provisions to replace the provisions that are void or have been declared invalid, whereby the object and the tenor of the conditions that are void or that have been declared invalid will be taken into consideration as far as possible.
9.3 The headings in these General Terms and Conditions only serve to assist readability and do not form part thereof.
9.4 All agreements between Atelier Van Lieshout and the client are governed by Dutch law. In the first instance, the parties will try to resolve a dispute that arises between them by mutual consultation. Unless the parties have expressly agreed to written arbitration, the court that has jurisdiction by law or the court in the district where Atelier Van Lieshout has its registered office, this at the discretion of the designer, will hear disputes between Atelier Van Lieshout and the client.