OUR TERMS AND CONDITIONS:
FOC COLLECTION TERMS AND CONDITIONS
FREEDOM OF CREATION B.V.
1.1 Prices of products are correct at the time of entering the information; however, FOC reserves the right to change prices without prior notice. FOC promises to honour the price quoted at the time the order was made. Prices do not include import taxes, tariffs and duties.
2.1 Any material found within the pages of the FOC website, including text or images may not be copied, reproduced, republished, downloaded, posted, broadcast or transmitted in any way except for your own personal non-commercial use. You hereby agree not to adapt, alter or create any derivative work from any of the material contained in this site. In addition, the material cannot be used for any other purpose other than for your own personal and non-commercial use.
2.2 All descriptions, drawings, software or other information supplied by FOC will remain FOCâ€™ property together with the copyright in them.
3. Product Variations
3. FOC reserves the right to modify the Goods to comply with statutory or EU and other local regulations and to improve facilities or performance. It is FOCâ€™ policy to endeavor to develop and improve its Goods, and accordingly FOC reserves the right to change specifications without prior notification or public announcement, provided that nothing in this clause shall oblige the Customer to accept Goods which do not reasonably comply with the Contract.
4.1 If Customer fails to given all necessary instructions and documents for the Goods to be forwarded, or Customer shall otherwise cause or request a delay, the Customer shall pay in addition to the price, all storage and other relevant costs.
4.2 FOC shall be entitled to withhold delivery and put the Goods in storage if Customer owes any amounts or is in arrears with payment.
4.3 Where FOC arranges storage on the Customerâ€™s behalf or for a reason in clauses 5.1 or 5.2, all charges for storage, insurance and demurrage shall be payable by the Customer.
5. External Web Sites
5.1 FOC is not responsible for the content of external Web sites linked to the FOC website.
6. Formation of contract and governing law
6.1 A contract between Customer and FOC for the sale of our products will only exist once FOC confirm your order by e-mailing you to confirm your order has been accepted. The contract will have been considered to have been formed, and the confirmation considered to have been given to you, as soon as you are able to access the message, whether or not you actually receive the message.
6.2 The contract shall be considered to have been concluded in the Netherlands and shall be governed by the laws of the Netherlands and you and FOC irrevocably submit to the non exclusive jurisdiction of Dutch courts.
7.1 No property or title to goods shall pass to you unless and until the full amount of the value of the goods as invoiced has been credited to our bank account without recourse or FOC have received the full amount in cash.
7.2 The time between the order confirmation by email and the time until the full amount of the value of the goods as invoiced has been credited to our bank account, is not considered as part of the dispatch time.
7.3 In the event of default in payment by the due date, FOC reserves the right to charge interest on money overdue in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), until payment in full is made, and to suspend delivery or terminate the contract in respect of any undelivered Goods, and appropriate any payment made by the Customer as FOC thinks fit.
7.4 The payment term for commercial clients within the European Union is 21 days unless FOC has made different agreements with you. Consumers and commercial clients outside the European Union have to pay 100% upfront, unless agreed otherwise
7.5 Customer accepts the following payment conditions:
|Order size in Euros||Upfront Payment||Delivery timeRequired
||0 – 2.000
||2.000 – 5.000
||5.000 – 10.000
||10.000 – 20.000
||Letter of Credit
The time between the order confirmation by email and the time until the full amount of the upfront payment has been credited to our bank account, or the Letter of Credit is validated, is not considered as part of the dispatch time.
8.1 19% Value Added Tax (VAT) is payable on all goods or services delivered to consumers within the European Union and to companies within The Netherlands.
9.1 A delivery date shall be treated as being approximate and FOC shall not be liable for any delay in delivery, provided that it uses commercially reasonable efforts to meet the delivery date. All Goods for delivery will be delivered via express delivery, unless otherwise agreed.
9.2 If the Customer fails to take delivery or give adequate instructions; or requests FOC to hold the Goods after the agreed date for delivery, payment will be due and payable 30 days from the date the Goods were available for dispatch, or FOC may at its option sell the Goods and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the contract price.
9.3 FOC shall be entitled to determine the route and manner of delivery of the Goods, and make partial deliveries of the Goods or deliver the Goods by installments. No sale of Goods shall be a sale by sample.
9.4 Where Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by FOC to deliver any one or more installments or any claim by Customer under these General Conditions shall not entitle the Customer to reject further installments or cancel any further contract.
9.5. The delivery time of your product depends on the type of product you have ordered, the delivery address and the mix of products in case more than 1 product is ordered. The maximum delivery time for each particular product can be found as part of the product information. It should be mentioned that many times these products are in stock and can be delivered within one week. In case big volume orders are required, FOC will contact you personally to establish the right delivery time for this.
9.6 The indicated shipping times are dependent on the delivery address:
|Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Spain, Sweden, Switzerland, United Kingdom.||1||2-3 Workdays|
|Albania, Andorra, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Hungary, Iceland, Latvia, Liechtenstein, Lithuania, Macedonia, Malta, Moldova, Monaco, Norway, Romania, Russia, San Marino, Serbia and Montenegro, Slovenia, Ukraine.||2||3-7 Workdays|
|Egypt, Algeria, Bahrain, Canada, Iraq, Iran, Israel, Jordan, Kuwait, Lebanon, Libyan, Morocco, Oman, Qatar, Saudi Arabia, Syrian, Tunisia, United Arab Emirates, United States, Yemen.||3||5-10 Workdays|
|Rest of the World||4||By inquiry|
9.7 In case multiple products are ordered with different dispatch times, FOC will send 1 package with all products (unless required differently). The longest dispatch time should be taken into account for this.
10. Return Policy
10.1 FOC will go to great lengths to ensure that customers are happy and love the products delivered, but in the unlikely event that you are not completely satisfied with your order, you must notify us strictly within 3 working days of delivery, detailing the reason for your dissatisfaction. For this purpose our on-line RETURNS FORM must be filled in and together with your original Customer Order Number. This form must be displayed externally on the packaging of the goods to be returned. No goods may be returned to us without this form.
10.2 Goods which are unused, undamaged, in their original packaging and fully marketable, may be returned strictly within 7 working days from delivery. FOC unconditionally reserves the right not to refund if the goods are not returned in their original packaging as received from us, neatly cared for and in immaculate condition. More specifically, we cannot accept returned items which fall into the following categories:
â€¢ Any personalized goods or goods made to your specification;
â€¢ Any items which have been used in any way and are no longer suitable for resale;
â€¢ Any items which have been damaged in the wash or wrongly treated;
â€¢ Any packages where the postage is unpaid.
10.3 For goods returned to us any later than 7 working days from delivery, please note the following:
â€¢ For returned goods received by FOC between calendar days 8 and 14 after initial delivery to you, you will incur a 10% administration charge.
â€¢ For returned goods received by FOC between calendar days 15 and 28 after initial delivery to you, you will incur a 50% administration charge.
â€¢ Goods returned after 28 days will not be refunded.
10.4 Unless there is a manufacturing fault or they were damaged in transit (see Damaged Goods), authorized goods need to be returned to us at your own cost. Refunds are made for the cost of the goods excluding any Postage and Packing. Where you have made your own arrangement for the return, the goods must be fully insured during transit and for your protection must be adequately packed in the original packaging to prevent damage. FOC cannot be held liable for any losses in the transit service.
10.5 FOC advices to use the company who delivered your items to you should also be used for returns. Please make sure the offered compensation for loss or damage covers the value of the goods to be returned. If you are in any doubt, please contact us.
10.6 Goods authorized to be returned should be sent to:
Freedom Of Creation B.V.
1018 AM Amsterdam
11.1 FOCâ€™s legal obligation to the Customer is to grant the unconditional right to cancel your order from the date of the contract and up to the point of dispatch (when the goods are sent from FOC to you). Should you make a cancellation beyond this point, FOC will deduct your refund with the amount of any delivery charges and cancellation penalties which FOC may have incurred as a direct result of your order cancellation.
12 Damaged Goods
12.1 Should the product you ordered show a manufacturing fault or have been damaged in transit, you need to notify us in writing (fax or email) strictly within 3 days of delivery. FOC can then either:
â€¢ Replace the defective product as soon as possible depending on the nature of the product order, or
â€¢ Offer you a full refund within 30 days.
12.2 Where the defect or damage is readily visible, this should be highlighted at the time of delivery. FOC shall be under no liability whatsoever in respect of any defect caused by fair wear and tear, by negligence or willful damage, by failure to follow our instructions or those given by the supplier, by alteration of the goods without our approval or by any other act of misconduct by third parties.
13. Risk and Property
13.1 Risk of damage to or loss of the goods shall pass to the Customer at the time of delivery or attempted delivery or, if you wrongfully fail to receive the delivery.
14. Conformity of Goods
14.1 FOC takes every care to ensure that descriptions and specifications of its products are correct within its website. Whilst color reproduction is a close representation FOC cannot accept responsibility for color variation caused by computers and/or browsers and would advise that, as all products are made one at a time, thus slight color variations may occur.
14.2 Please take into account that ‘white’ Laser Sintered Polyamide products will turn into a stable ‘off white’ color during the first 4000 hours of usage.
15. Export Control
15.1 The validity of FOCâ€™ quotation, and any resulting agreement, may be subject to the granting of a governmental export license. In the event that such a license or end-use statement is required, the Customer shall promptly provide FOC with such document on written request. In case the delivery of the Goods is restricted or forbidden due to export control laws, the rights and obligations of the Customer will be suspended for the duration of such laws, and this agreement may be cancelled.
16. Use of FOC Website
16.1 FOC provides this website but does not warrant that the functions contained in this site will be uninterrupted or error free, that defects will be corrected, or that this site or the server that makes it available are free of viruses or bugs or represents the full functionality, accuracy, reliability of the materials.
16.2 In addition, FOC makes no (and disclaims all) representations or warranties of any kind, expressed or implied, with respect to the information or content included in this site. This does not affect your statutory rights in relation to the goods and their fitness for purpose and satisfactory quality.
16.3 In connection with the use of the FOC website, in no event will FOC be liable:
â€¢ For losses that were not foreseeable to both parties when the contract was made;
â€¢ For losses that were not caused by any breach on the part of the supplier;
â€¢ For business losses and/or losses to non consumers.
16.4 Customer agrees to use the FOC website only for lawful purposes, and in a manner which does not infringe the rights of, or restrict or inhibit the use and enjoyment of this site by any third party, such restriction or inhibition includes, without limitation, conduct which is unlawful, or which may harass or cause distress or inconvenience to any person and the transmission of obscene or offensive content or disruption of normal flow of dialogue within this site.
16.5 FOC tries to prevent that the design of products that it sells infringes the rights of third parties. FOC cannot be held liable in case such infringement might occur
17. Privacy promise
17.1 FOC is 100 percent committed to protect your security and privacy. FOC know that when you shop online, you want to know that your name, address, credit card details and any other information you give us is kept safe and secure. FOC promises not to pass on any of your personal details to any party.
17.2 When an order is placed, FOC needs to know your name, e-mail address and delivery address. This allows us to process and fulfill your orders and to notify you of the status of your order. FOC also ask for your telephone number or e-mail address, which enables us to contact you if there is an urgent problem with your order. For international deliveries your telephone number may be given to our couriers. FOC also monitor customer traffic patterns and site usage to help us develop the design and layout of the site.
18 Other terms
18.1 Neither party shall be liable to the other for any breach arising from, (and FOC may in its discretion allocate products, so as to supply fewer Goods than agreed, in case of,) events beyond the reasonable control of the other party or its sub-contractors or suppliers including but not limited to acts of God, war, riot, fire, strikes, terrorism, lock-outs or other forms of industrial action.
18.2 These General Conditions may not be amended, varied or modified except in writing signed by a duly authorized officer or representative of each of the parties.
18.3 Failure or delay by a party in enforcing or partially enforcing any provision of these General Conditions shall not be construed as a waiver of any of its rights under any contract.
18.4 If any provision of these General Conditions is found to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provision in question shall not be affected by that invalidity or unenforceability.
18.5 Any terms and conditions which by their nature extend beyond expiration or termination of these General Conditions shall survive and remain in effect.
18.6 These General Conditions are not intended to be for the benefit of, and shall not be enforceable by any person who is not named at the date which the order is placed, under the Contract or otherwise and neither party can declare itself a trustee of the rights under it for the benefit of any third party.
18.7 Any other terms and conditions or provisions proposed by the Customer whether orally or in writing shall be of no effect and the supply of the Goods by FOC shall not constitute acceptance of such terms and conditions or provisions.
18.8 Prices do not include the costs of any environmental charges including any approved uniform visible fee or any other fee arising out of the Directive 2002/96/EC on Waste Electrical and Electronic Equipment or any similar or derived legislation, and such additional costs will be invoiced to and payable by the Customer.
18.9 All descriptions and illustrations and particulars of weights and dimensions and performance criteria issued by FOC in catalogues, price lists, advertising matter and specifications are by way of general descriptions and approximate only and shall not form part of any contract with FOC.
18.10 These General Terms & Conditions, the Customerâ€™s order (but excluding any customer terms and conditions) and FOCâ€™ acceptance of the order constitute the entire agreement and understanding of the parties with respect to its subject matter. Each of the parties acknowledges that, in entering into this agreement, it has not relied on any oral or written representation, warranty, or other assurance (except as provided for or referred to in these General Conditions) and waives all rights and remedies which might otherwise be available to it.
GENERAL TERMS AND CONDITIONS
FREEDOM OF CREATION B.V.
Design Work / Services
As used herein and throughout this Agreement:
1.1 â€œAgreementâ€ means the entire content of this Basic Terms and Conditions document, the Brief/Request/ Proposal document(s), together with any other supplements, exhibits, schedules or attachments hereto.
1.2 â€œFOCâ€ means Freedom of Creation B.V. (Cruquiuskade 85-87, 1018 AM Amsterdam, The Netherlands)
1.3 â€œClientâ€ means [insert name] of [insert address].
1.4 â€œClient Contentâ€ means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.5 â€œCopyrightsâ€ means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Dutch Copyright Law.
1.6 â€œCreation Filesâ€ means all underlying artwork files used in the creation of Deliverables e.g. 2D and 3D graphics files, renderings, photography and other images etc.
1.7 â€œDeliverablesâ€ means the services and work product specified or commissioned to be delivered by FOC to Client, in the form and media specified in the Brief/Request/ Proposal.
1.8 â€œDesigner Toolsâ€ means all design tools developed and/or utilised by FOC in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as Website design, architecture, layout, navigational and functional elements.
1.9 â€œEffective Dateâ€ means the date the Brief/Request/Proposal is signed by Client.
1.10 â€œFinal Deliverablesâ€ means the final versions of Deliverables provided by FOC and accepted by Client. It includes all creative content developed or created by FOC, or commissioned by FOC, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments, 3D files, printable files, 3D printed products, modifications to Client Content, and FOCâ€™s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.11 â€œPreliminary Worksâ€ means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternative or preliminary designs and documents developed by FOC and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Deliverables.
1.12 â€œProjectâ€ means the scope and purpose of the Clientâ€™s identified usage of the work product as described in the Brief/Request/Proposal.
1.13 â€œBrief/Request/Proposalâ€ means the written and or verbal instruction provided by Client in relation to the Project.
1.14 â€œServicesâ€ means all services and the work product to be provided to Client by FOC as described and otherwise further defined in the Brief/Request/Proposal.
1.15 â€œThird Party Materialsâ€ means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.16 â€œTrademarksâ€ means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
The terms of the Brief/Request/Proposal shall be effective for thirty days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Brief/Request/Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND CHARGES
In consideration of the Services to be performed by FOC, Client shall pay to FOC fees in the amounts and according to the payment schedule set forth in the Brief/Request/ Proposal, and all applicable taxes, even if calculated or assessed subsequent to the payment schedule.
Client shall pay FOCâ€™s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost, and, if applicable, a kilometer reimbursement at FOCâ€™s standard rate per km; and (b) travel expenses including transportation, meals, and lodging, incurred by FOC with Clientâ€™s prior approval. FOC will not incur expenses in excess of $300 per item without the express permission of Client.
3.3 Additional Costs.
The Project pricing includes FOCâ€™s fee and production costs only. Any and all outside costs including, but not limited to, equipment rental, photographerâ€™s costs and fees, photography and/or artwork licenses, prototype production costs, and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Brief/Request/Proposal.
All invoices are payable within fourteen (14) days of receipt. FOC reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges or the costs of Changes.
4.1 General Changes.
Unless otherwise provided in the Brief/Request/Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at FOCâ€™s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Brief/Request/Proposal, despite any maximum budget, contract price or final price identified therein. FOC may extend or modify any delivery schedule or deadlines in the Brief/Request/Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes.
If Client requests or instructs Changes that amount to a revision in or near excess of twenty-five percent (25%) of the time required to produce the Deliverables, and or the value or scope of the Services, FOC shall be entitled to submit a new and separate Brief/Request/Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Brief/Request/Proposal and, if required, any additional retainer fees are received by FOC.
FOC will prioritize performance of the Services as may be necessary or as identified in the Brief/Request/Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Brief/ Request/Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Clientâ€™s concerns, objections or corrections to FOC. FOC shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that FOCâ€™s ability to meet any and all schedules is entirely dependent upon Clientâ€™s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Brief/Request/Proposal and that any delays in Clientâ€™s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or FOCâ€™s obligations under this Agreement.
4.4 Testing and Acceptance.
FOC will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify FOC, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Brief/ Request/Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and FOC will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than FOC; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Brief/Request/Proposal; and (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
FOC retains the right to reproduce, publish and display the Deliverables in FOCâ€™s portfolios and Websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the otherâ€™s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its Website and in other promotional materials, and, if not expressly objected to, include a link to the other partyâ€™s Website.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (â€œConfidential Informationâ€). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Brief/Request/Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor.
FOC is an independent contractor, not an employee of Client or any company affiliated with Client. FOC shall provide the Services under the general direction of Client, but FOC shall determine, in FOCâ€™s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. FOC and the work product or Deliverables prepared by FOC shall not be deemed a work for hire as that term is defined under Dutch Copyright Law. All rights if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 FOC Agents.
FOC shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (â€œDesign Agentsâ€). Notwithstanding, FOC shall remain fully responsible for such Design Agentsâ€™ compliance with the various terms and conditions of this Agreement.
8.3 No Exclusivity.
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by FOC, and FOC shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by FOC.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client.
Client represents, warrants and covenants to FOC that:
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content
(b) to the best of Clientâ€™s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By FOC.
(a) FOC hereby represents warrants and covenants to Client that FOC will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services
(b) FOC further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of FOC and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by FOC, FOC shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for FOC to grant the intellectual property rights provided in this Agreement
(c) Except for the express representations and warranties stated in this agreement, FOC makes no warranties whatsoever. FOC explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.
10.1 By Client.
Client agrees to indemnify, save and hold harmless FOC from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Clientâ€™s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances FOC shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and
(b) FOC provides Client with commercially reasonable assistance, information and authority necessary to perform Clientâ€™s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by FOC in providing such assistance.
10.2 By FOC.
Subject to the terms, conditions, express representations and warranties provided in this Agreement, FOC agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with FOCâ€™s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that:
(a) Client promptly notifies FOC in writing of the claim;
(b) FOC shall have sole control of the defence and all related settlement negotiations; and
(c) Client shall provide FOC with the assistance, information and authority necessary to perform FOCâ€™s obligations under this section. Notwithstanding the foregoing, FOC shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by FOC.
10.3 Limitation of Liability.
The services and the work product of FOC are sold â€œas is.â€ In all circumstances, the maximum liability of FOC, its directors, officers, employees, design agents and affiliates (â€œFOC partiesâ€), to Client for damages for any and all causes whatsoever, and Clientâ€™s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of FOC on the Project. In no event shall FOC be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by FOC, even if FOC has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. INTELLECTUAL PROPERTY PROVISIONS
11.1 Client Content.
Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to FOC a nonexclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with FOCâ€™s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
11.2 Third Party Materials.
Client hereby indemnifies, saves and holds harmless FOC from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of failure to obtain copyright, license, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Deliverables.
11.3 Preliminary Works.
FOC retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to FOC within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of FOC.
11.4 Original Artwork.
FOC retains all right and title in and to any original artwork comprising Final Deliverables, including all rights to display or sell such artwork. Client shall return all original artwork to FOC within thirty (30) days of completion of the Services.
Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless FOC from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Clientâ€™s use and/or failure to obtain rights to use or use of the Trademark.
11.6 Designer Tools and Creation Files.
All Designer Tools and Creation Files (e.g. 3D print files) are and shall remain the exclusive property of FOC. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools or Creation Files of FOC.
11.7 Rights to Final Deliverables.
Upon completion of the Services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, FOC assigns to Client the right to use the Final Deliverables solely for the purpose for which it is originally commissioned in the Brief/Request/Proposal. For the avoidance of doubt, Client may not directly or indirectly, in any form or manner, reproduce, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Final Deliverables without the express written consent of FOC.
12. TERM AND TERMINATION
12.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
12.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
12.3 In the event of termination, FOC shall be compensated for the Services performed through the date of termination in the amount of:
(a) any advance payment:
(b) a prorated portion of the fees due: or
(c) hourly fees for work performed by FOC or FOCâ€™s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
12.4 In the event of termination by Client and upon full payment of compensation as provided herein, FOC grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
12.5 Upon expiration or termination of this Agreement:
(a) each party shall return or, at the disclosing partyâ€™s request, destroy the Confidential Information of the other party: and
(b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that FOCâ€™s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.
13.3 No Assignment.
Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
13.4 Force Majeure.
FOC shall not be deemed in breach of this Agreement if FOC is unable to complete the Services or any portion thereof by reason of fire, earthquake, industrial dispute, act of God, death, illness or incapacity of FOC or any local, state, federal or international law, governmental order or regulation or any other event beyond FOCâ€™s control (collectively, â€œForce Majeure Eventâ€). Upon occurrence of any Force Majeure Event, FOC shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
13.5 Governing Law and Dispute Resolution.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the Netherlands without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through a forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its legal fees and costs.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Brief/Request/Proposal and any other Agreement documents, the terms of the Brief/Request/Proposal shall control.