General terms and conditions

1. Definitions

  1. TodayTomorrow B.V., hereinafter referred to as "TodayTomorrow," located at Stationsplein 45, Unit D2.138, 3013 AK Rotterdam.
  2. The designer: TodayTomorrow.
  3. Services: TodayTomorrow performs all services on behalf of a Client or a third party designated by the Client.
  4. Agreement: The agreement between TodayTomorrow and the Client concerns the provision of services, as outlined in a document agreed upon by both parties, along with any other applicable documents referenced therein, such as a quotation.
  5. Client: The counterparty of TodayTomorrow.
  6. Third parties: Any individual or entity other than TodayTomorrow or the Client.

2. Agreement, quotation and confirmation

  1. These General Terms and Conditions, filed with the Chamber of Commerce in Delft under registration number 68425449, apply to all quotations, as well as to the establishment, content, and fulfilment of all agreements entered into between the Client and the contractor (hereinafter: TodayTomorrow). Deviations from these General Terms and Conditions may only be agreed upon expressly and in writing between the Client and TodayTomorrow. TodayTomorrow explicitly rejects any general terms and conditions of the Client.
  2. Quotations are non-binding and valid for 30 days unless previously revoked by notification from TodayTomorrow. All price quotes are subject to change due to unforeseen alterations in the work or unexpected workload during the project. All prices exclude VAT and any other applicable taxes. The rates and offers mentioned do not automatically apply to future assignments. The Client is responsible for the accuracy and completeness of the information provided by or on behalf of them to TodayTomorrow, upon which TodayTomorrow bases its quotation.
  3. The agreement will be executed in phases, with an invoice issued after each phase or after each month working on a project based on hours made. In addition to any legal remedies available to TodayTomorrow by law, TodayTomorrow may suspend the execution of tasks related to the next phase until the Client has paid the invoice for the previous phase(s)/month(s).
  4. Assignments are confirmed in writing, by email, or verbally by the Client. Should the Client fail to do so but nevertheless (implicitly) agrees that TodayTomorrow starts executing the assignment, the contents of the quotation are deemed agreed upon. Any additional verbal arrangements and agreements will only bind TodayTomorrow once confirmed in writing by TodayTomorrow.

3. The execution of the agreement

  1. TodayTomorrow makes every effort to carry out the assignment carefully and independently, to act in the best interests of the Client to the best of its knowledge, and to strive for a result that is useful to the Client. If necessary and at the Client's request, TodayTomorrow will keep the Client informed of the progress of the work.
  2. The Client shall do everything reasonably necessary or desirable to enable TodayTomorrow to deliver the work on time and correctly, such as promptly providing complete, accurate, and clear data or materials, which TodayTomorrow indicates are required or which the Client understands or should reasonably understand are necessary for the execution of the agreement.
  3. Any time frame specified by TodayTomorrow for the execution of the assignment is merely an indication unless otherwise expressly agreed in writing.
  4. Unless otherwise agreed, the following are not part of TodayTomorrow’s assignment:
    1. Conducting tests, applying for permits, and assessing whether the Client’s instructions meet legal or quality standards;
    2. Researching the existence of rights, including patent rights, trademark rights, design or model rights, copyrights, portrait rights of third parties, or other intellectual property rights;
    3. Researching the possibility of the protection forms referred to in sub b. for the Client.
  5. Before proceeding with execution, production, duplication, or publication, both parties will allow each other the opportunity to inspect and approve the final models, prototypes, or trials of the result. If the Client fails to attend the trial on the date set by TodayTomorrow, which will be communicated to the Client in writing 14 days before the trial, the trial will be deemed accepted. The Client must provide a list of defects within 10 days of delivery; otherwise, the trial will be deemed accepted.
  6. After each phase, a presentation or overview of the results will follow. TodayTomorrow reserves the right to suspend the execution of tasks related to the next phase until the Client has provided written approval of the results from the previous phase.
  7. Deviations in the (final) result compared to what was agreed upon shall never be grounds for rejection, discount, compensation, or termination of the agreement.

4. Engaging third parties

  1. Unless otherwise agreed, assignments to third parties in connection with the execution of the assignment will be provided by or on behalf of TodayTomorrow.
  2. When TodayTomorrow prepares a cost estimate for third parties at the request of the Client, this estimate is indicative.
  3. When, during the execution of the assignment, TodayTomorrow, by express agreement, acquires goods or services from third parties at its own expense and risk, and subsequently passes these goods or services on to the Client, the terms of the general conditions and/or separate agreements with the supplier concerning warranties and liability will also apply to the Client.
  4. When TodayTomorrow, whether in the name of the Client or otherwise, issues instructions or assignments to production companies or other third parties, the Client shall, at the request of TodayTomorrow, confirm in writing the approval referred to in Article 3.5 of these General Terms and Conditions.
  5. The Client shall not engage third parties without consulting TodayTomorrow if it could affect the execution of the assignment as agreed with TodayTomorrow. The parties will consult in such cases regarding which other contractors will be engaged and which tasks will be assigned to them.
  6. TodayTomorrow is not liable for errors or defects in products or services provided by third parties engaged by or on behalf of the Client, regardless of whether they were introduced by TodayTomorrow. The Client must address these parties directly.

5. Intellectual property rights and ownership rights

  1. All intellectual property rights arising from the assignment – including patent rights, trademark rights, design or model rights, copyright, and rights not specifically mentioned here – in relation to the results of the assignment shall belong to TodayTomorrow. To the extent that such rights can only be obtained through filing or registration, TodayTomorrow shall be the sole party authorised to do so, unless otherwise agreed.
  2. The parties may agree that the rights referred to in the first paragraph will be transferred, in whole or in part, to the Client. This transfer and any conditions under which the transfer takes place will always be documented in writing. Until the transfer takes place, a usage right will be granted as specified in Article 6 of these general terms and conditions.
  3. TodayTomorrow always retains the right to have its name mentioned on, alongside, or in publicity surrounding the result of the assignment – in the customary manner for that result – or to remove it. The Client is not permitted to do this without the prior consent of TodayTomorrow. TodayTomorrow may impose conditions on such consent.
  4. Unless otherwise agreed, the (original) results (such as designs, design sketches, concepts, advice, reports, quotations, estimates, specifications, working drawings, illustrations, photos, prototypes, models, moulds, prototypes, (part) products, LMS, (audio and video) presentations, source codes, and other materials or (electronic) files, etc.) created by TodayTomorrow in the course of the assignment remain the property of TodayTomorrow, regardless of whether these are made available to the Client or third parties.
  5. After the completion of the assignment, neither the Client nor TodayTomorrow has any obligation to retain the used materials and data, unless otherwise agreed.

6. Use of the result

  1. When the Client fully fulfils their obligations under the agreement with TodayTomorrow, they acquire the right to use the result of the assignment in accordance with the agreed purpose. If no agreements have been made regarding the purpose, the right of use is limited to the use for which the assignment was (evidently) given. The right to use is exclusive unless the nature of the agreement or other agreements dictate otherwise.
  2. If the result involves works on which third parties hold rights, the parties shall make additional arrangements for how the use of these works will be regulated.
  3. The Client does not have the right, without written consent, to modify, extend, or otherwise (re)use or execute the result of the assignment beyond what was agreed upon, or to have this done by third parties. TodayTomorrow may attach conditions to such consent, including the payment of a fee.
  4. In the case of unauthorised broader or alternative use, including modification, distortion, or alteration of the preliminary or final result, TodayTomorrow is entitled to compensation for infringement of its rights of at least three times the agreed fee, or at least a compensation amount that is reasonable and fair in relation to the infringement, without losing any other rights.
  5. The Client is no longer permitted to use the results made available to them, and any rights granted to the Client in relation to the assignment will expire:
    • From the moment the Client fails to fulfil their (payment) obligations under the agreement, or fails to do so properly or fully, or is otherwise in default;
    • If the assignment is terminated early for reasons stated in Article 8.1 of these General Terms and Conditions;
    • In the event of an apparent bankruptcy of the Client.
  6. With due consideration for the interests of the Client, TodayTomorrow is free to use the results for its own publicity, acquisition of assignments, promotion, including competitions and exhibitions, and to loan them when it concerns physical results.

7. Honorarium and costs

  1. In addition to the agreed fee, the costs incurred by TodayTomorrow for the execution of the assignment, such as office, travel, and accommodation costs, costs for prints, copies, (print) proofs, prototypes, and third-party costs for advice, production, and supervision, etc., are also subject to reimbursement. These costs will be specified in advance whenever possible, unless a markup percentage has been agreed.
  2. If TodayTomorrow is required to carry out additional or different work due to the late or incomplete provision of accurate and clear data/materials, a changed or incorrect assignment or instruction, or due to external circumstances, these additional tasks will be separately remunerated based on the standard rates used by TodayTomorrow. TodayTomorrow will inform the Client about this in advance, unless this is not possible due to circumstances or the nature of the work does not allow for delay.
  3. If the execution of the assignment is delayed or interrupted due to circumstances beyond TodayTomorrow's control, the Client is obliged to reimburse any costs arising from this. TodayTomorrow will make every effort to limit these costs as much as possible.

8. Payment and suspension

  1. All payments must be made within 14 days of the invoice date, without deduction, set-off, or suspension, unless otherwise agreed in writing or the invoice specifies otherwise.
  2. All goods supplied to the Client remain the property of TodayTomorrow until all amounts owed by the Client to TodayTomorrow under the agreement between the parties have been fully paid.
  3. If the Client fails to make full or partial payment of the amounts owed, the Client is liable to pay statutory interest and extrajudicial collection costs.
  4. TodayTomorrow is responsible for timely invoicing. In consultation with the Client, TodayTomorrow may charge the agreed fee and costs as an advance, on an interim or periodic basis.
  5. TodayTomorrow may suspend the execution of the assignment once the payment term has expired. The Client is considered in default immediately after the payment term has passed, or when TodayTomorrow, based on a communication or action from the Client, has reason to believe that payment will be withheld.

9. Termination and dissolution of the agreement

  1. If the Client terminates the agreement without any fault or breach on the part of TodayTomorrow, or if TodayTomorrow dissolves the agreement due to a culpable breach by the Client, the Client is, in addition to the fee and costs incurred for the work carried out up to that point, liable to pay compensation. Actions by the Client that reasonably prevent TodayTomorrow from completing the assignment are also considered a culpable breach in this context.
  2. The compensation referred to in the previous paragraph includes at least the costs arising from the commitments made by TodayTomorrow in its own name to third parties for the completion of the assignment, as well as at least 30% of the remaining fee that the Client would owe for the full completion of the assignment.
  3. Both TodayTomorrow and the Client have the right to immediately terminate the agreement, either in full or in part, and any amounts owed become immediately payable if a petition for bankruptcy, (provisional) suspension of payments, or debt restructuring is filed against the other party. In the event of a circumstance as mentioned in this Article 9.3, the party affected must immediately notify the other party.
  4. If TodayTomorrow's work consists of repeatedly performing similar tasks, this constitutes a continuous agreement, unless otherwise agreed in writing. Such an agreement may only be terminated by written notice, respecting a reasonable notice period of at least three months, during which the Client will continue to take the usual amount of work from TodayTomorrow, or financially compensate for it.

10. Warranties and indemnities

  1. TodayTomorrow guarantees that the work delivered has been designed by or on behalf of them and that, when copyright exists over the result, they are recognised as the creator under the Copyright Act and are entitled to dispose of the work as the copyright holder. TodayTomorrow also guarantees that, to the best of their knowledge or what they should reasonably know, the result of the assignment does not infringe any third-party rights or otherwise constitute an unlawful act at the time it is created.
  2. When the Client uses the results of the assignment, the Client indemnifies TodayTomorrow or any third parties engaged by TodayTomorrow in the assignment from all claims by third parties arising from the use or application of the result of the assignment. This does not affect TodayTomorrow’s liability towards the Client for a failure to meet the guarantees as mentioned in the previous paragraph, or any other liability as set out in this article 10 of these terms and conditions.
  3. The Client indemnifies TodayTomorrow against claims related to intellectual property rights on any materials and/or data provided by the Client, which are used in the execution of the assignment.

11. Liability

  1. In the event of a (non-)attributable failure, TodayTomorrow must first be notified in writing, with a reasonable period to remedy their obligations, correct any errors, or mitigate or resolve any damage. TodayTomorrow is only liable to the Client for direct damage that is attributable to TodayTomorrow.
  2. Liability of TodayTomorrow for indirect damage, including consequential damage, loss of profit, missed savings, mutilated or lost data or materials, or damage caused by business interruption, is excluded.
  3. Except in cases of intentional misconduct or gross negligence by TodayTomorrow, the liability of TodayTomorrow is limited to the fee for the assignment, or at least that portion of the assignment to which the liability pertains. This amount shall not exceed EUR 75,000 and, in any case, is always limited to the amount that TodayTomorrow’s insurer pays out in the specific case. The amount for which TodayTomorrow is liable in any given case will be reduced by any sums covered by insurance taken out by the Client.
  4. Any liability shall expire one year after the completion, termination, or cancellation of the assignment.

12. Other provisions

  1. If the Client wishes to award the same assignment to others than TodayTomorrow simultaneously, or has already awarded the assignment to another party, they must inform TodayTomorrow, specifying the names of those other parties.
  2. The Client is not permitted to transfer any rights under an agreement with TodayTomorrow to third parties, unless by transferring their entire business or with the written consent of TodayTomorrow.
  3. Both parties are obliged to maintain confidentiality regarding all confidential information, facts, and circumstances that come to their knowledge in the course of the assignment, whether from each other or other sources, and which can reasonably be understood to potentially cause harm to TodayTomorrow or the Client if disclosed to third parties. Third parties involved in the execution of the assignment will also be bound to the same confidentiality regarding these facts and circumstances.
  4. If any provision of these general terms and conditions is found to be invalid or annulled, the remaining provisions shall remain in full force and effect. In such a case, the parties will consult with the aim of agreeing on new provisions to replace the invalid or annulled provisions, taking into account the purpose and intent of the invalid or annulled provisions as far as possible.
  5. Dutch law exclusively applies to the agreement and all that follows from it. The parties will initially attempt to resolve any dispute through mutual consultation. Unless the parties have expressly agreed to arbitration in writing, the competent court according to the law, or the court in the district where TodayTomorrow is located, at TodayTomorrow’s discretion, will have jurisdiction over disputes between TodayTomorrow and the Client.