GENERAL TERMS AND CONDITIONS

Cream on Chrome, January 2025

1 Agreement, offers and confirmation

1.1  These General Terms and Conditions govern all offers and the preparation, content and performance of all agreements concluded between the Client and Cream on Chrome (the “Contractor”) – jointly described as “the Parties”. Deviations from these General Terms and Conditions may be agreed on between the Client and Cream on Chrome only in writing.
1.2  All offers are without commitment and are valid for 30 days, unless stated otherwise in the offer itself. Quotations may be subject to change due to an unforeseen change in the work. Prices are exclusive of VAT and other government levies. Mentioned rates and offers do not automatically apply to future assignments.
1.3  Commissions are confirmed in writing by the Client. If the Client fails to do so but consents to the Contractor commencing the work commissioned, the terms of the offer are deemed to have been agreed on and these General Terms and Conditions apply. Further oral agreements and stipulations are only binding on the Contractor after they have been confirmed in writing by the Contractor.

1.4  If, within the framework of an offer, the Contractor has been granted an assignment to make designs, prototypes, models, drawings, videos etc., the Contractor may charge the costs thereof, even if no agreement is concluded.

1.5 If the Client simultaneously gives the same assignment to parties other than the Contractor or has already given the order to another party, they must inform the Contractor, stating the names of these others.

2 Performance of the agreement

2.1  The Contractor must make every effort to perform the work commissioned 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. To the extent necessary, the Contractor must keep the Client informed of the progress of the work.

2.2 The Client is obliged to do everything that is reasonably necessary or desirable to enable a timely and correct delivery by the Contractor, in particular by the timely delivery of complete, sound and clear data or materials.

2.3 A term specified by the Contractor for completing the design is indicative, unless the nature or content of the agreement shows otherwise. The Client must give the Contractor written notice of default if the specified term is exceeded.

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

1. performing tests, applying for permits and assessing whether the Client’s instructions comply with statutory or quality standards;
2. investigating any existing rights, including patents, trademarks, drawing or design rights or portrait rights of third parties; and
   
3. investigating the possibility of the forms of protection referred to in (b) for the Client.
    

2.5 Before proceeding to production, duplication or publication, the parties must give each other the opportunity to share the latest models, prototypes or samples of the design for check and approval. If the Contractor, 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 his above-mentioned approval in writing at the request of the Contractor.

2.6  Differences between the (final) result and the agreements made cannot serve as grounds for rejection, discount, damages or dissolution of the agreement if those differences are reasonably of minor importance, taking all the circumstances into account.

2.7  Any complaints must be filed with the Contractor in writing at the earliest possible time but no later than 10 (ten) business days after completion of the work commissioned, failing which the Client is deemed to have accepted the result of the work commissioned in its entirety.

3 Changes to Performance

3.1 The Contractor shall render its cooperation to any changes required, within the bounds of reasonableness, if the substance of the performance to be rendered by the Contractor is not essentially different from the originally agreed performance. The Contractor may, however, refuse to accept a change required if such change should jeopardize the delivery term or if, as a result, projects of other clients cannot be performed in good time.

4 Engagement of third parties

4.1  Unless otherwise agreed, instructions to third parties in the context of the performance of the work commissioned are given by or on behalf of the Client. At the Client’s request the Contractor may act as an agent for the Client’s account and risk. The parties may agree on a fee for such agency.

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

4.3 If, in the performance of the assignment, the Contractor purchases goods or services from third parties in accordance with an explicit agreement at its own expense and risk, after which these goods or services are passed on to the Client, the provisions of the supplier’s general terms and conditions with regard to the quality, quantity, quality and delivery of these goods or services also apply to the Client. 

4.4  If the Contractor 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 the Contractor’s request the approval referred to in Article 2.5 of these General Terms and Conditions.

4.5  The Client may not engage any third parties without consultation with the Contractor if that may influence the performance of the work commissioned as agreed on with the Contractor. The Parties will consult, if necessary, as to which third parties will be engaged and which work will be assigned to them.

4.6  The Contractor 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 the Contractor. The Client itself must hold those parties accountable. The Contractor may assist in that regard if necessary.

5 Intellectual property and other property rights 

5.1 All intellectual property rights to the results arising from the assignment belong to the Contractor. Insofar as such a right may only be extended by means of a filing or registration, only the Contractor is authorised to do so, unless agreed otherwise. ‘Intellectual property rights’ are expressly understood to mean: copyrights, database rights, related rights, trademark rights, design rights, patents, domain name rights, know-how, commercial knowledge, trade secrets and all similar rights, anywhere in the world, whether or not susceptible to registration and including applications for registration.

5.2 The Parties may agree to transfer the rights referred to in the first paragraph in whole or in part to the Client. This transfer and any conditions under which the transfer takes place must always be recorded in writing. Until the time of transfer and payment of the fee agreed for this purpose, a right of use shall be provided as stipulated in Article 6 of these General Terms and Conditions.

5.3 The Contractor has the right at all times to mention or have his/her name mentioned on, at or in publicity about the result of the assignment – in the usual way for that result – or removed from that publicity. The Client is not permitted to publish or reproduce the result without the prior consent of the Contractor without mentioning the name of the Contractor.

5.4 Unless otherwise agreed, the (originals of) the results (such as designs, design sketches, concepts, opinions, reports, budgets, estimates, specifications, working drawings, illustrations, photos, prototypes, models, moulds, [partial] products, films, presentations, source codes, source files and other materials or [electronic] files and the like) created by the Contractor in the context of the assignment remain the property of the Contractor, regardless of whether they have been made available to the Client or to third parties. The parties may agree to a further fee to be arranged for the transfer of the aforementioned results.

5.5 After completion of the assignment, the Client and the Contractor have no obligation to retain the results achieved by the Contractor (originals of the results) as mentioned in 5.4, unless otherwise agreed.

6 Use of the result

6.1 If the Client fully complies with his/her obligations arising from the agreement with the Contractor, he/she acquires the right of use (licence) of the result of the assignment in accordance with its purpose. If no agreements have been made about the purpose, the right of use is limited to the use for which the assignment was (apparently) granted. The right to use is exclusive, unless the nature of the agreement dictates otherwise or is agreed otherwise.

6.2 If the result also relates to works on which rights of third parties are based, the Parties should make additional agreements on how the use of these works should be governed.

6.3 Without written permission, the Client does not have the right to adjust the result of the assignment, to use or reuse, or execute it more widely, or in any other way than has been agreed, or to let that be done by third parties. The Contractor may attach conditions to this consent, including the payment of an additional fee.

6.4 In the event of non-agreed broader or other use, including modification, mutilation or damage to the provisional or final result, the Contractor is entitled to compensation for infringement of his/her rights of at least three times the agreed fee, or at least compensation that is proportional to the infringement committed, without otherwise losing any other rights.

6.5 Without the prior consent of the Contractor, the Client is not (or no longer) permitted to use the result of the assignment or develop it (or have it developed) further and any right of use (licence) granted to the Client in the context of the assignment shall lapse, unless the consequences thereof are contrary to reasonableness and fairness:

1. from the moment that the Client does not or does not fully fulfil their (payment) obligations under the agreement or is otherwise in default;
2. 
   if the assignment is terminated prematurely for reasons stated in Article 9.1 of these General Terms and Conditions;
3. 
   in the event of the bankruptcy of the Client, unless the relevant rights have been transferred to the Client in accordance with Article 5.2 of these General Terms and Conditions.

6.6 The Contractor, taking into account the Client’s interests, has the freedom to use the results for his/her own publicity, acquisition of orders, promotion, including use on the Internet, websites and social media, in competitions and exhibitions, etc., and to get them on loan when it comes to physical results.

7 Fees and expenses

7.1 The Contractor is entitled to a fee for the execution of the assignment. This may consist of an hourly rate, a consultancy fee, a fixed amount or any other fee agreed between the parties.

7.2 In addition to the agreed fee, the expenses incurred by the Contractor for the execution of the assignment, such as office, travel and accommodation expenses, expenses for prints, copies, (print) tests, prototypes, and expenses of third parties for advice, production and guidance, etc. are also eligible for reimbursement. These expenses will be specified as much as possible in advance, except when a surcharge percentage is agreed.

7.3 If the Contractor is forced to perform more or other work due to the late or non-delivery of complete, sound and clear data/materials, due to a changed or incorrect commission or briefing, or due to external circumstances, this work will be remunerated separately on the basis of the Contractor’s customary fee rates. The Contractor shall inform the Client in advance, unless this is not possible due to circumstances or the nature of the work does not permit postponement.

8 Payment and deferral

8.1 The Contractor shall ensure timely invoicing. In consultation with the Client, the Contractor may charge agreed fees and expenses as an advance, interim or periodic fee.

8.2 All payments must be made without deduction, set-off or deferral, within 30 days of the invoice date, unless otherwise agreed in writing or the invoice states otherwise.

8.3 All goods delivered to the Client remain the property of the Contractor until all amounts owed by the Client to the Contractor pursuant to the agreement concluded between the parties have been paid to the Contractor in full.

8.4 If the Client defaults on the full or partial payment of the amounts due, the Client shall be liable for statutory interest and extrajudicial collection costs, amounting to at least 10% of the invoice amount with a minimum of €150 excl. VAT.

8.5 The Contractor may suspend the execution of the assignment after the payment period has expired and the Client has failed to pay within 14 days of receiving notification to do so, or if the Contractor understands by means of a notification by or action of the Client that payment will not be made.

9 Attributable shortcoming, termination and dissolution of the agreement

9.1 In the event of an attributable shortcoming, the parties will first give each other written notice of default and enable the other party, subject to a reasonable period of time, to still fulfil his/her obligations or to repair any errors or to limit or remedy damage. The notice of default must contain as detailed a description as possible of the shortcoming.

9.2 When the Client cancels an agreement, he must pay, in addition to compensation, the fee and the costs incurred with regard to the work performed up to that point.

9.3 If the agreement is dissolved by the Contractor due to an attributable shortcoming in the fulfillment of the agreement by the Client, the Client must pay, in addition to compensation, the fee and the costs incurred with regard to the work performed up to that point. Conduct of the Client on the basis of which the Contractor can no longer reasonably be expected to complete the assignment, are in this context also regarded as an attributable shortcoming.

9.4 The compensation referred to in the previous two paragraphs of this article will at least include the costs arising from the commitments entered into by the Contractor 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 the Client would owe upon complete fulfillment of the order.

9.5 Both the Contractor and the Client have the right to immediately dissolve the agreement in whole or in part in the event of bankruptcy or (provisional) suspension of payments of the other party. In the event of the Client’s bankruptcy, the Contractor has the right to terminate the right of use granted, unless the consequences of this are contrary to reasonableness and fairness.

9.6 In the event of dissolution by the Client due to an attributable shortcoming in the fulfillment of the obligations by the Contractor, the performances al- ready delivered and the associated payment obligation shall 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 before the dissolution in connection with what he has already properly performed or delivered for the execution of the agreement, will remain due in full with due observance of the provisions of the previous sentence and will become immediately due and payable at the time of the dissolution.

9.7 If the work of the Contractor consists of the repetition of similar work, the contract shall be deemed permanent, 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 3 (three) months, during which period the Client shall continue to purchase the usual amount of work from the Contractor, or shall compensate the Contractor financially for the missed turnover and costs incurred.

10 Guarantees and indemnifications

10.1 The Contractor guarantees that the design supplied to the Client was made by them or on their behalf and, if the design is protected by copyright, that they are the maker within the meaning of the Dutch Copyright Act (Auteurswet) and the copyright holder of the work. The Contractor guarantees that the result of the assignment at the time of its completion, insofar as they know or should reasonably know, does not infringe upon the rights of third parties or is not otherwise unlawful.

10.2 The Client shall indemnify the Contractor, or third parties engaged on the assignment by the Contractor, against all claims of third parties arising from the applications or the use of the results of the assignment. This does not affect the Contractor’s liability to the Client for non-compliance with the guarantees referred to in the preceding paragraph and other liability as referred to in Article 11 of these General Terms and Conditions.

10.3 The Client shall indemnify the Contractor for any claim or action relating to intellectual property rights on materials and/or data supplied by the Client and used for the execution of the assignment.

11 Liability

11.1 The Contractor is not liable for:

• errors or shortcomings in the material provided by the Client.
• misunderstandings, errors or shortcomings with regard to the execution of the agreement if these find their cause or cause in actions of the Client, such as the late or non-delivery of complete, sound and clear data/materials. 

• errors or shortcomings engaged by or on behalf of the Client and third parties. 

• defects in quotations from suppliers or for exceeding quotations of suppliers.
  
  
• errors or shortcomings in the design or the text/ data, if the Client, in accordance with the provisions of art. 2.5 has given its approval, or has the opportunity was told to carry out an inspection and did not make use of it. 

• errors or shortcomings in the design or the text/data, if the Client has failed to produce or have a particular model, prototype or test performed, and these errors would have been observable in such model, prototype or test.
  
  

11.2 The Contractor is solely liable for direct damage attributable to it. Direct damage only includes:

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

• any reasonable costs necessary to compensate for the defective performance of the Contractor to comply with the agreement;
• reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of the direct damage as referred to in these general terms and conditions. The Contractor’s liability for all damage other than the aforementioned, such as indirect damage, including consequential damage, loss of profit, mutilated or lost data or materials, or damage due to business interruption, is excluded.

11.3 Except in the event of willful misconduct or willful recklessness on the part of the Contractor or the management of the Contractor – therefore with the exception of subordinates -, the Contractor’s liability for damage under an agreement or an unlawful act committed against the Client is limited to the invoice amount. that on the performed part of the assignment, less the amount paid by the assignment costs incurred by the Contractor for engaging third parties, on the understanding that this amount will not exceed € 5,000 and in any case limited at all times to a maximum of the amount that the insurer pays out to the Contractor in the appropriate case.

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

11.5 The Client is obliged, if reasonably possible, to keep copies of materials and data provided by them until the order has been fulfilled. If the Client fails to do so, the Contractor cannot be held liable for damage that would not have occurred if these copies had existed.

12 Privacy

When the Contractor needs to process personal data of (customers of) the Client in the context of the services to be provided, the Contractor is regarded as a ‘processor’ and the Client as a ‘controller’ within the meaning of the General Data Protection Regulation (GDPR) and a processor agreement is concluded.

13 Force majeure

13.1 If one of the Parties fails to fulfil its obligations, through no fault of his/her own (force majeure), that party is not liable and the fulfilment of that obligation is suspended for the duration of the force majeure.

13.2 Force majeure includes (but is not limited to) weather conditions, fire, strike, illness, pandemic, epidemic, (war) violence, hacks, cyberattacks or other technical failures and circumstances resulting from the above, such as government interventions including quarantine measures that reasonably prevent one of the parties from complying and that lead to delays, as well as delays or shortcomings from suppliers and/or other third parties engaged in the implementation of the agreement.

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

13.4 If the state of force majeure has lasted 60 (sixty) days, both Parties have the right to terminate the agreement in whole or in part, insofar as the state of force majeure justifies this.

13.5 In the event of force majeure, the Contractor is entitled to that part of the fee for the work performed by him/her and to reimbursement of the expenses already incurred by the Contractor or that are unavoidable, for example, in connection with orders already made and orders to third parties that can no longer be cancelled without liability for damages.

14 Other provisions

14.1 If the Client wishes to give the same assignment to others than the Contractor at the same time or has already given the assignment to another person, they shall inform the Contractor of this beforehand.

14.2 The Client is not permitted to transfer any rights from an agreement concluded with the Contractor to third parties, other than when transferring his/her entire company or with the prior written consent of the Contractor.

14.3 The Parties are obliged to maintain the confidentiality of 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, where it can reasonably be understood that disclosure or communication to third parties could cause damage to the Contractor or the Client. The Parties will bind their employees or third parties involved in the execution of the assignment to the same duty of confidentiality with regard to these facts and circumstances originating from the other party.

14.4 If any provision of these General Terms and Conditions is invalid or unenforceable, the remaining provisions of these General Terms and Conditions will remain in full force. In that case, the parties shall consult each other with the aim of agreeing new provisions to replace the provisions deemed null and void, taking into account as much as possible the purpose and scope of the provisions deemed null and void.

14.5 The headings in these General Terms and Conditions have been included for easy reference only and are no part of these Terms and Conditions.

14.6 These General Terms and Conditions may be amended at any time. The Contractor shall inform the Client about this.

14.7 The agreement between the Contractor and the Client is governed by Dutch law. The parties shall initially try to resolve any dispute 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 Contractor is established, shall be chosen.

PRIVACY STATEMENT

Cream on Chrome, January 2025