1. Agreement, Quotations and Confirmation
1.1 These General Terms & Conditions (“Terms & Conditions”) apply to all quotations and to the formation, content, and performance of all agreements entered into between the client and the contractor (hereinafter referred to as Fungi Design). Any deviations from these Terms & Conditions shall only be valid if agreed upon in writing by both the client and Fungi Design.
1.2 All quotations are non-binding before signing and remain valid for a period of two (2) months from the date of issue. Quoted prices may be subject to change in the event of unforeseen changes to the scope of work. All prices are exclusive of VAT. Quoted rates and offers do not automatically apply to future assignments. The client is responsible for the accuracy and completeness of all information provided to Fungi Design, on which the quotation is based.
1.3 Assignments must be confirmed in writing by the client. If the client fails to do so but nevertheless agrees to Fungi Design commencing the work, the contents of the quotation shall be deemed accepted and these Terms & Conditions shall apply. Any additional verbal agreements or arrangements shall only become binding after written confirmation by Fungi Design.
2. Performance of the Agreement
2.1 Fungi Design shall perform the agreed services with due care, professionalism, and independence. Fungi Design will act in the best interests of the client and make every reasonable effort to deliver a result that is fit for its intended purpose, as may reasonably be expected from a professional design agency. Where appropriate, Fungi Design will keep the client informed of the progress of the work.
2.2 The client shall provide all reasonable cooperation required to enable Fungi Design to perform the assignment in a timely and proper manner. This includes the timely provision of complete, accurate, and clearly presented information, materials, or other resources that Fungi Design indicates, or that the client reasonably understands, are necessary for the execution of the agreement.
2.3 Any timeframe provided by Fungi Design for the completion of the assignment is indicative only, unless otherwise agreed in writing.
2.4 Unless expressly agreed otherwise, the services of Fungi Design do not include:
a Conducting tests, obtaining permits, or assessing whether the client’s instructions comply with applicable laws, regulations, or quality standards;
b Investigating the existence of third-party rights, including but not limited to patents, trademarks, design rights, copyrights, or portrait rights;
c Investigating the availability or applicability of the intellectual property rights referred to under section 2.4(b) for the benefit of the client.
2.5 Before any design is produced, reproduced, published, or otherwise implemented, both parties shall be given the opportunity to review and approve the final concepts, prototypes, proofs, or other deliverables.
2.6 Minor deviations between the final deliverable and the agreed design shall not constitute grounds for rejection, price reduction, compensation, or termination of the agreement, provided that such deviations are, in light of all relevant circumstances, reasonably considered to be of minor significance.
2.7 Any complaints regarding the delivered work must be submitted to Fungi Design in writing as soon as reasonably possible and no later than ten (10) business days after completion of the assignment. Failing such notification, the client shall be deemed to have fully accepted the delivered work.
3. Engagement of Third Parties
3.1 Unless otherwise agreed, any assignments to third parties required for the execution of the project shall be commissioned by or on behalf of the client. At the client’s request, Fungi Design may act as the client’s authorized representative in engaging such third parties, at the client’s expense and risk. The parties may agree on an additional fee for this service.
3.2 If Fungi Design prepares an estimate of third-party costs at the client’s request, such estimate is indicative only. Where requested, Fungi Design may obtain quotations from third parties on behalf of the client.
3.3 If, by explicit agreement, Fungi Design procures goods or services from third parties in its own name and at its own expense and risk, and subsequently supplies these goods or services to the client, the warranty and liability provisions of the relevant supplier’s terms and conditions, and/or any separate agreements with that supplier, shall also apply to the client.
3.4 Where Fungi Design issues instructions or commissions production companies or other third parties, whether in its own name or on behalf of the client, the client shall, upon request, provide written confirmation of the approval referred to in Article 2.5 of these Terms & Conditions.
3.5 The client shall not engage third parties without prior consultation with Fungi Design where such engagement may affect the execution of the agreed assignment. In such cases, the parties shall consult on the appointment of additional contractors and the scope of the work assigned to them.
3.6 Fungi Design shall not be liable for any errors, defects, or shortcomings in the products or services provided by third parties engaged by or on behalf of the client, regardless of whether such third parties were introduced by Fungi Design. The client shall address any claims directly to the relevant third party. Upon request, Fungi Design may provide reasonable assistance in this process.
4. Intellectual Property and Ownership Rights
4.1 All intellectual property rights arising from the assignment—including, but not limited to, patents, trademarks, design rights, and copyrights—in any work, designs, or other deliverables created by Fungi Design shall remain the exclusive property of Fungi Design. Where such rights require registration or filing in order to exist or be enforceable, only Fungi Design shall be entitled to make such registration, unless otherwise agreed in writing.
4.2 The parties may agree that the intellectual property rights referred to in Article 4.1 are transferred, in whole or in part, to the client. Any such transfer, including the conditions under which it takes place, shall always be recorded in writing. Until such transfer has been completed, the client shall be granted a licence to use the work in accordance with Article 5 of these Terms & Conditions.
4.3 Fungi Design shall at all times have the right to display, remove, or require the display of its name on, in, or in connection with the delivered work and any related publicity, in a manner customary for the relevant type of work. The client shall not publish or reproduce the work without acknowledging Fungi Design as its creator, unless prior written consent has been obtained from Fungi Design.
4.4 Unless otherwise agreed in writing, all original materials and deliverables created by Fungi Design in connection with the assignment—including, but not limited to, designs, sketches, concepts, advice, reports, quotations, estimates, specifications, technical drawings, illustrations, photographs, prototypes, mock-ups, moulds, partial products, films, audio and video presentations, source code, and all other physical or digital materials and files—shall remain the property of Fungi Design, regardless of whether they have been provided to the client or to third parties.
4.5 Upon completion of the assignment, neither the client nor Fungi Design shall have any obligation to retain the materials or data used during the project, unless otherwise agreed in writing.
5. Use of the Deliverables
5.1 Provided that the client has fulfilled all obligations arising from the agreement with Fungi Design, including full payment of all invoices, the client shall obtain the right to use the final deliverables for the agreed purpose. If no specific purpose has been agreed, the licence shall be limited to the use for which the assignment was evidently commissioned. Unless otherwise agreed or implied by the nature of the agreement, this licence shall be exclusive.
5.2 Where the deliverables include works or materials that are subject to the intellectual property rights of third parties, the parties shall make additional arrangements regarding the permitted use of those works.
5.3 Without the prior written consent of Fungi Design, the client is not entitled to modify, adapt, reproduce, reuse, or exploit the deliverables in any manner beyond the agreed scope, nor to have such actions carried out by third parties. Fungi Design may attach reasonable conditions to such consent, including the payment of an additional fee.
5.4 In the event of any unauthorized use, modification, distortion, or other infringement of the preliminary or final deliverables, Fungi Design shall be entitled to compensation of at least three (3) times the agreed fee, or such other amount as is reasonable and proportionate to the infringement, without prejudice to any other rights or remedies available under applicable law.
5.5 The client shall no longer be entitled to use the deliverables, and any licence granted under the agreement shall automatically terminate, unless such termination would be contrary to the principles of reasonableness and fairness, in the following circumstances:
a If the client fails to fulfil its payment obligations or otherwise breaches the agreement;
b If the assignment is terminated prematurely for any of the reasons referred to in Article 8.1 of these Terms & Conditions;
c If the client is declared bankrupt or enters insolvency proceedings, unless the relevant intellectual property rights have already been transferred to the client in accordance with Article 4.2.
5.6 Subject to the legitimate interests of the client, Fungi Design reserves the right to use the deliverables and, where relevant, the design process for its own promotional purposes, including its portfolio, website, social media, marketing materials, competitions, exhibitions, and the acquisition of new assignments. This right applies both during and after completion of the project. Where personal data appears in the published work, it will be anonymized, and only the company name will be disclosed.
6. Fees and Costs
6.1 FFungi Design is entitled to a fee for the performance of the agreed services. This fee may consist of an hourly rate, a consultancy fee, a fixed project fee, a fee related to the total project value, or any other remuneration agreed upon by the parties.
6.2 In addition to the agreed fee, the client shall reimburse all reasonable expenses incurred by Fungi Design in connection with the assignment. Such expenses may include, but are not limited to, office costs, travel and accommodation expenses, printing and copying costs, proofs, prototypes, and costs incurred through third parties for consultancy, production, supervision, or other project-related services. Wherever possible, these costs will be specified in advance unless the parties have agreed to a fixed surcharge or percentage.
6.3 If Fungi Design is required to perform additional or different work as a result of the client’s failure to provide complete, accurate, or timely information or materials, changes to the assignment or briefing, incorrect instructions, or other external circumstances beyond the control of Fungi Design, such additional work shall be charged separately at Fungi Design’s standard rates. Fungi Design will inform the client in advance wherever reasonably possible, unless circumstances or the nature of the work make prior notice impracticable.
6.4 If the execution of the assignment is delayed or interrupted due to circumstances beyond the reasonable control of Fungi Design, the client shall reimburse any additional costs reasonably incurred as a result. Fungi Design will make reasonable efforts to keep such costs to a minimum.
7. Payment and Suspension
7.1 Unless otherwise agreed in writing or stated on the invoice, all invoices are payable within thirty (30) days of the invoice date, without deduction, set-off, or suspension.
7.2 All materials and deliverables supplied by Fungi Design shall remain the property of Fungi Design until the client has paid in full all amounts due under the agreement between the parties.
7.3 If the client fails to pay all or part of any amount due by the applicable due date, the client shall be liable for statutory interest as well as all reasonable extrajudicial debt collection costs. Such collection costs shall amount to at least 10% of the outstanding invoice amount, with a minimum of €150.00, excluding VAT.
7.4 Fungi Design shall ensure timely invoicing. Subject to agreement with the client, Fungi Design may invoice the agreed fees and expenses in advance, in instalments, or on a periodic basis during the course of the project.
7.5 Fungi Design reserves the right to suspend the performance of the assignment if the payment term has expired and the client, after having received a written reminder granting an additional fourteen (14) days to make payment, still fails to do so, or if Fungi Design reasonably concludes from the client’s statements or conduct that payment will not be made.
8. Termination and Dissolution of the Agreement
8.1 If the client terminates the agreement without there being any attributable failure on the part of Fungi Design, or if Fungi Design terminates the agreement due to a material breach by the client, the client shall, in addition to paying the fees and costs relating to the work performed up to that point, also be liable for compensation for damages. Any conduct by the client that reasonably prevents Fungi Design from completing the assignment shall likewise be regarded as a material breach of the agreement.
8.2 The compensation referred to in Article 8.1 shall include, at a minimum, all costs arising from commitments entered into by Fungi Design with third parties in its own name for the execution of the assignment, as well as at least thirty percent (30%) of the remaining fee that would have been payable had the assignment been completed in full.
8.3 Both Fungi Design and the client shall have the right to terminate the agreement, in whole or in part, with immediate effect, and all outstanding amounts shall become immediately due and payable, if the other party becomes subject to bankruptcy proceedings, applies for or is granted a (provisional) suspension of payments, enters into debt restructuring proceedings, or is otherwise declared insolvent.
8.4 Where the services provided by Fungi Design consist of recurring or ongoing work of a similar nature, the agreement shall be deemed to be a continuing agreement, unless otherwise agreed in writing. Such an agreement may only be terminated by written notice, subject to a reasonable notice period of at least three (3) months. During this notice period, the client shall continue to commission the customary volume of work from Fungi Design or provide reasonable financial compensation in lieu thereof.
9. Warranties and Indemnities
9.1 Fungi Design warrants that the deliverables have been created by or on behalf of Fungi Design and that, where copyright subsists in the work, Fungi Design shall be regarded as the author within the meaning of the applicable copyright legislation and shall be entitled to exercise the relevant copyright. Fungi Design further warrants that, to the best of its knowledge and as far as may reasonably be expected, the deliverables do not infringe the intellectual property rights or other legal rights of any third party at the time they are created.
9.2 If the client uses the deliverables, the client shall indemnify and hold harmless Fungi Design and any third parties engaged by Fungi Design in connection with the assignment against any claims brought by third parties arising from the client’s application or use of the deliverables. This indemnity shall not affect Fungi Design’s liability towards the client for any breach of the warranties set out in Article 9.1, nor any other liability referred to in Article 10 of these Terms & Conditions.
9.3 The client shall indemnify Fungi Design against any claims relating to intellectual property rights in respect of all materials, content, data, or other information supplied by the client and used in the execution of the assignment.
10. Liability
10.1 In the event of an attributable failure by Fungi Design to perform its obligations, the client shall first provide Fungi Design with written notice of default, granting a reasonable period in which to fulfil its obligations, remedy any defects, or limit or rectify any resulting damage.
10.2 Fungi Design shall only be liable to the client for direct damages that are attributable to Fungi Design. Fungi Design shall not be liable for any indirect or consequential damages, including but not limited to loss of profits, loss of savings, corruption or loss of data or materials, or damages resulting from business interruption.
10.3 Except in cases of intentional misconduct or wilful recklessness by Fungi Design, Fungi Design’s total liability shall be limited to the fee payable for the assignment, or, where applicable, the portion of the assignment to which the liability relates. In any event, Fungi Design’s liability shall not exceed €75,000, and shall always be limited to the amount actually paid out under Fungi Design’s applicable liability insurance policy in the relevant case. Any compensation payable by Fungi Design shall be reduced by any amounts recoverable by the client under its own insurance policies.
10.4 Any claim against Fungi Design shall expire two (2) years after the assignment has ended through completion, termination, or dissolution of the agreement.
11. Miscellaneous Provisions
11.1 If the client intends to assign the same or a substantially similar assignment to one or more parties other than Fungi Design, or has previously assigned the same assignment to another party, the client shall inform both the other contractor(s) and Fungi Design accordingly, specifying the names of all parties involved.
11.2 The client may not assign or transfer any rights arising from an agreement with Fungi Design to a third party, except in connection with the transfer of the client’s entire business or with the prior written consent of Fungi Design.
11.3 Both parties shall treat as confidential all confidential information, facts, and circumstances obtained from one another, or from any other source, in connection with the assignment, where it may reasonably be understood that disclosure to third parties could cause harm to either party. Any third parties engaged in the execution of the assignment shall be bound by the same confidentiality obligations with respect to such information.
11.4 If any provision of these Terms & Conditions is found to be invalid, void, or unenforceable, the remaining provisions shall remain in full force and effect. In such event, the parties shall consult with one another in good faith to agree upon a valid replacement provision that most closely reflects the purpose and intent of the invalid or unenforceable provision.
11.5 The headings used in these Terms & Conditions are included for convenience only and shall not affect the interpretation or meaning of the provisions.
11.6 These Terms & Conditions and all agreements between Fungi Design and the client shall be governed by and construed in accordance with the laws of the Netherlands. The parties shall first endeavour to resolve any dispute through mutual consultation. Unless the parties have expressly agreed in writing to submit disputes to arbitration, any dispute shall be submitted, at the discretion of Fungi Design, either to the court having jurisdiction under applicable law or to the competent court in the judicial district where Fungi Design has its registered office.
These Terms & Conditions are always available for review on our website but may be amended from time to time. By entering into an agreement with Fungi Design, the client is responsible for requesting a copy of the applicable Terms & Conditions if desired. The version of the Terms & Conditions published on our website on the date the agreement is signed shall apply to the assignment.
These terms & conditions were last updated on: 23 september 2024