Last update: May 2021
These Terms and Conditions shall apply to all Quotations (as defined below) and contracts provided and entered into by Studio Plankton and the Customer, except when other contractual arrangements are made between Studio Plankton and the Customer.
The general terms and conditions of the Customer are not applicable and are therefore expressly excluded, even if such general terms and conditions would contain a similar clause.
The Customer has previously been informed of these Terms and conditions and has accepted all provisions thereof. Studio Plankton reserves the right to modify unilaterally and at any time these Terms and Conditions. In any event, Studio Plankton will notify any such amendments or changes in writing (including without limitation by e-mail) to the Customer (the “Notification Date”), which will be granted the right to oppose to the amendments or changes involved by giving written notice in this respect to Studio Plankton within 10 (ten) calendar days from the Notification Date. Any amendments or changes will be effective as of the Notification Date for any orders submitted by the Customer after the Notification Date.
2.1 Provision of the Services and Deliverables
Studio Plankton shall provide certain Services and/or Deliverables to the Customer under the provisions of these Terms and Conditions.
Unless explicitly otherwise agreed, all obligations of Studio Plankton with regard to the provision of the Deliverables are considered to be best efforts obligations ("middelenverbintenissen"/"obligations de moyen").
The Customer agrees that Studio Plankton shall exercise its activities and execute its obligations relating to the Deliverables as an independent service provider.
In case it is agreed upon by the Parties that the development of the Services will be executed in different phases, Studio Plankton has the right to suspend the development of the subsequent phase until the Customer has accepted the results of the preceding phase in accordance with Article 2.3 and has complied with all other obligations related to this phase.
Studio Plankton shall use reasonable endeavours to deliver the Deliverables on the delivery date as mutually agreed upon by the Parties. If the execution of or delivery of the Deliverables is delayed or otherwise affected due to the Customer (or a third party acting under Customer’s control or on Customer’s behalf) including but not limited to any non-compliance with Article 2.2, any costs incurred by Studio Plankton and all consequences resulting therefrom shall be borne by the Customer. In any event the Customer shall timely notify Studio Plankton of any circumstances which may affect Studio Plankton's obligations, in particular with respect to the execution, timing, pricing and progress of the Deliverables.
2.2 Customer cooperation
The Customer acknowledges and agrees that the execution of and/or the development of the Deliverables is dependent on the Customer’s cooperation and the Customer agrees to cooperate with Studio Plankton to enable Studio Plankton to adequately performs its obligations under these Terms and Conditions. Such cooperation shall include, without limitation (i) making available on a timely basis management decisions, information, approvals and acceptances, (ii) providing accurate and complete information and (ii) at no cost to Studio Plankton, providing access to the appropriate technical environments and deploying sufficient qualified personnel to support Studio Plankton with any, reasonable, requests for additional information during the course of providing the Services.
2.3 Delivery and complaints
Studio Plankton guarantees to deliver the Deliverables that correspond to the description and the Specifications as mentioned in the Quotation.
Upon receipt, the Customer has to inspect the Deliverables immediately. Complaints are to be reported in writing to Studio Plankton within a period of 8 (eight) calendar days of receipt of the Deliverables, with a detailed description of the defect involved.
In the event of a defect, Studio Plankton will replace the relevant Deliverable free of charge within a reasonable delay, but without the right to any compensation for the Customer.
Studio Plankton shall not be responsible for any defect, where such defect relates to matters not due to the fault of Studio Plankton, including but not limited to any defect caused by the Customer or caused by a third party under the Customer’s control.
2.4 Transfer of risk and title
The risk of loss of or damage to the Deliverables transfers to the Customer upon delivery by Studio Plankton. If the Customer fails to accept delivery of the Deliverables or if Studio Plankton is not able to timely deliver the Deliverables due to the Customer failing to provide appropriate instructions, documents, licenses or authorisations, the risk of loss of or damage to such Deliverables shall transfer at the moment Studio Plankton attempts to deliver the Deliverables.
All Deliverables shall remain the sole property of Studio Plankton and Studio Plankton will not grant any rights to the Customer until all Fees relating to Deliverables have been paid by the Customer in full.
Studio Plankton shall charge (i) all expenses, travel costs and other reasonable business expenses incurred by Studio Plankton and (ii) any third party materials used in the Deliverables at cost to the Customer. In case of exceptional travel requirements Studio Plankton shall, if reasonably possible, obtain the Customer’s prior approval.
The Fees may be subject to an annual adaptation on January 1st of every year. The Fees may be increased by a percentage equivalent to the aggregate percentage increase in the Agoria “refertelonen landsgemiddelde” index or if the Agoria index is no longer published, the index replacing it or failing such index by another index reflecting the increases of labour cost. A negative index shall have no impact on the Fees. Studio Plankton has no obligation to inform the Customer prior to such adaptation.
All Fees shall be invoiced by Studio Plankton according to the invoicing schedule as agreed upon by the Parties in the Quotation.
All amounts due are payable within thirty (30) calendar days following the date of invoice. All payments must be made in EURO, through bank transfer on the bank account number mentioned on Studio Plankton's invoice, including the required references. All payment obligations are non-cancellable and all amounts paid are non-refundable.
In the event the Customer disputes any portion of an invoice, the Customer shall notify Studio Plankton of such disputed amount and the basis for the Customer’s dispute within fifteen (15) calendar days from the invoice date (failure of which shall result in the invoice being irrevocably deemed accepted by the Customer), together with any appropriate information supporting the Customer’s position, and the undisputed portion shall be paid as provided herein.
In the event any sums due remain unpaid on the due date, the following shall apply automatically and without any formal notice being required:
i. all amounts not paid when due shall bear a late payment interest of 1% per month, increased with a fixed compensation of 10% of the outstanding amounts, with a minimum of 250 EURO, whereby each month started shall count as a complete month;
ii. all amounts due shall become immediately payable, regardless of the agreed payment terms;
iii. Studio Plankton is entitled to suspend the performance and discontinue the development or delivery of the Deliverables.
All software, plans, documents, know-how, data and other information relating to a Party’s business, technology, products or services or other proprietary or confidential information provided by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under these Terms and Conditions shall be considered and treated as confidential (the “Confidential Information”). The Confidential Information remains at all times the property of the Disclosing Party.
The Receiving Party shall (i) only use such Confidential Information for the purposes of complying with its obligations under these Terms and Conditions; (ii) store such Confidential Information with at least the same level of care applied when storing its own Confidential Information, and in no case with a less than reasonable level of care; and (iii) not disclose such Confidential Information to any third party.
The confidentiality obligations as specified in this Article 4.1 shall not apply to information which: (i) has become publicly known in a way other than by violation by the Receiving Party of its obligations under these Terms and Conditions; (ii) was disclosed to the Receiving Party by a third party that is not under any obligation of confidentiality to the Disclosing Party; (iii) was developed by the Receiving Party independent of the Disclosing Party’s Confidential Information, or was already known by the Receiving Party prior to the information being disclosed by the Disclosing Party; and/or (iv) is disclosed with the written consent of the Disclosing Party. Notwithstanding the above, the Receiving Party may disclose the Confidential Information to its employees, consultants and suppliers which are directly involved with and/or should be informed of such Confidential Information for the execution of the Receiving Party’s obligations as set forth in these Terms and Conditions. The Receiving Party shall impose on them confidentiality obligations which are at least similar to those included in this Article 4.1.
4.2 Customer Data and Personal Data
The Customer is fully and solely responsible for the content of the Customer Data. The Customer warrants that the Customer Data, and Studio Plankton's access to and processing of the Customer Data in the context of the development of the Deliverables in accordance with these Terms and Conditions, do not violate any laws or regulations and/or any third party rights.
If, and to the extent, Studio Plankton is provided access to any Personal Data and/or must process any Personal Data on the Customer’s behalf (on an non-incidental basis) when performing its obligations under these Terms and Conditions, the Parties agree to sign a data processing agreement.
5.1 Customer IPR
The Customer grants, Studio Plankton a non-exclusive, worldwide, royalty free, sub-licensable license to use, copy, store, transmit, reproduce and display the Customer Data and any IPR relating thereto solely as strictly necessary for the purposes of executing its obligations under these Terms and Conditions.
The Customer is and shall remain the sole owner of all the rights, titles and interests to Customer Data and of any and all IPR pertaining thereto. Nothing contained in these Terms and Conditions shall be construed to confer upon Studio Plankton any right, title or interest in or to any such Customer Data or IPR thereto or any right, by license or otherwise, to make, or permit others to make any use thereof other than as expressly permitted by the Customer.
a) Pre-existing IPR.
Studio Plankton and its licensors shall remain the sole owner of all IPR existing prior to the execution of the Deliverables (the “Studio Plankton Pre-Existing IPR”). Studio Plankton Pre-Existing IPR includes but is not limited to the proprietary tools, methodologies, materials, know-how, processes, technologies, modules, components, programs, analysis, frameworks developed or used by Studio Plankton prior to or developed independently from these Terms and Conditions, including enhancements and improvements to the aforementioned tools and materials which Studio Plankton develops in the course of the execution of the Deliverables. To the extent any Design Deliverables contain any Studio Plankton Pre-Existing IPR, Customer shall be granted a personal, restricted, non-exclusive, non-transferrable, non-assignable license without the right to sublicense, to use such Studio Plankton Pre-Existing IPR to the extent strictly necessary to be able to use the Design Deliverables and provided such Studio Plankton Pre-Existing IPR at all times remains embedded in the Design Deliverables.
i. General ideas. Studio Plankton shall be free to use any general ideas, concepts, methodologies, processes and know-how developed or created by Studio Plankton in the course of executing the Deliverables.
ii. Design Deliverable. Subject to the timely payment of the Fees, the final Design Deliverable and any and all IPR or other industrial or similar rights pertaining thereto (excluding the Studio Plankton Pre-Existing IPR however) whether registered or unregistered and throughout the world, shall automatically, irrevocably, unconditionally, exclusively and without limitations whatsoever be transferred to the Customer immediately upon their creation. For the avoidance of doubt, it is specified that such Design Deliverable shall not include the designs that were not selected by the Customer during the provision of the Design Services by Studio Plankton.
iii. Technical Deliverables. Subject to the timely payment of the Fees, Studio Plankton transfers all IPR on or to the Specific Developments, in full ownership and irrevocably to the Customer, and this immediately and unconditionally from such time as these Specific Developments are developed. Studio Plankton shall conclude the agreements required for the transfer of the Specific Developments (the “Transfer”) with its personnel. The Fees received by the Customer amongst others, is intended as remuneration for Studio Plankton for this Transfer. Studio Plankton undertakes, when the Customer requests this, to sign each document or to satisfy each formality, which may be reasonably required in order to perform the aforesaid Transfer. The Customer grants Studio Plankton a non-exclusive, non-transferrable, worldwide, irrevocable and royalty-free license to use such Specific Developments.
In the provision of the Services, Studio Plankton may create and/or improve materials that are generic, reusable or are useful for the development of the general roadmap of one or more other products, tasks and projects of Studio Plankton. Such materials provided to the Customer under these Terms and Conditions are defined as “Generic Developments”. The Customer agrees that all Generic Developments and all IPR pertaining thereto will be the exclusive property of and will belong to Studio Plankton. Upon full payment of the Fees, Studio Plankton will be deemed to grant to the Customer a non-exclusive, worldwide, perpetual, irrevocable and fully paid up license to use, modify, adapt, sublicense and otherwise exploit the Generic Developments solely for use with the Technical Deliverables and further exploitation of the Specific Developments.
iv. All rights in and to the Deliverables not expressly granted to the Customer in these Terms and Conditions are reserved by Studio Plankton and its licensors.
c) Open Source Software. The Customer acknowledges and agrees that Studio Plankton may use and/or may integrate Open Source Software in the Deliverables. Studio Plankton will inform the Customer of any open source license terms applicable to such Open Source Software. The use of the Deliverables by the Customer must at all times be in compliance with such license terms.
6.1 Direct damages
Without prejudice to and without limiting Article 6.2, Studio Plankton’s aggregate liability arising out of or in connection with these Terms and Conditions, whether in contract, warranty, tort (including negligence, product liability or other theory), or otherwise, shall not exceed 100% of the Fees (excluding taxes and expenses) paid to Studio Plankton by the Customer for the Deliverables during the preceding twelve (12) month period. Nothing in this Agreement shall limit or exclude Studio Plankton’s liability resulting from (i) gross negligence; (ii) wilful misconduct; or (iii) fraud.
6.2 Indirect damages
In no event shall Studio Plankton be liable for any indirect damage and/or consequential damage, such as but not limited to loss of profit, loss of income, loss of anticipated savings, loss of opportunity, loss of customers, claims of customers or other third parties, damage as a result of loss and/or corruption of data, loss of goodwill and reputational damage.
The Customer acknowledges and agrees that all Deliverables executed by Studio Plankton are developed solely on the instructions of the Customer. Studio Plankton cannot be held liable in the event the Specifications or the Deliverables would violate any applicable legislation and Studio Plankton shall not be obliged to verify any applicable legislation.
6.4 No warranties
Unless otherwise agreed upon by Studio Plankton in writing and without prejudice to Article 2.3, Studio Plankton makes no representations or warranties regarding the condition or functionality of the Deliverables, their suitability for use, or that the Deliverables will be uninterrupted or error-free. Without limiting the foregoing, the Deliverables and any information or content relating thereto are provided "AS IS" without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability, or fitness for a particular purpose.
Studio Plankton is entitled to suspend the further execution of the Deliverables in whole or in part, with immediate effect, if the Customer fails to comply with one or more of its obligations and fails to cure such breach within a period of thirty (30) calendar days following notice thereof by Studio Plankton.
The Customer may not assign or transfer these Terms and Conditions or any rights or obligations to any third party. Studio Plankton shall be free to transfer or assign (part of) its obligations or rights under these Terms and Conditions.
Nothing in the Agreement restricts or hinders the possibility for Studio Plankton to provide any services and/or materials to third parties, or to develop materials for itself or third parties which may compete with the Deliverables.
8.3 Entire Agreement - Successors - Paragraph Headings – Severability - Waiver
These Terms and Conditions constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements (with the exception of a framework agreement, if any), whether oral or written, between the Parties with respect to such subject matter. These Terms and Conditions shall bind and inure to the benefit of the Parties hereto and their respective successors and assigns. The paragraph headings of these Terms and Conditions are included merely for reference and are not to be used in interpreting the Terms and Conditions. The provisions of these Terms and Conditions are severable and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby. Any failure to enforce any provision of these Terms and Conditions shall not constitute a waiver thereof or of any other provision.
Use by one Party of the other Party's name, logo, trade name or trademarks in any public announcements or for promotional, advertising or other purposes, shall require the other Party's prior written approval (such approval not to be unreasonably withheld).
8.5 Force Majeure
A Party shall not be liable for delays or failure to perform its obligations under these Terms and Conditions, if such delay or failure is caused by Force Majeure. "Force Majeure" is any event beyond the reasonable control of one of the Parties that affects the execution of its obligations under these Terms and Conditions, including but not limited to, natural disasters, riots, war and military operations, national or local emergencies, actions or omissions of the government, economic disputes of whatever nature, actions of employees, fire, flooding, lightning, explosions, collapses, epidemic, the reduced or non-functioning of networks, systems and equipment of third parties. The Parties explicitly agree that any non-payment by the Customer of the Fees, shall not qualify as Force Majeure. The Party invoking Force Majeure, must immediately notify the other Party in writing of these circumstances. The execution of the obligation that cannot be carried out due to Force Majeure, will be suspended for the duration of the Force Majeure and must be resumed as soon as the Force Majeure has disappeared. The Party invoking the Force Majeure, must also notify the other Party of the cessation of these circumstances.
No employment, partnership, temporary partnership, joint venture or agency form exists between the Parties as a result of these Terms and Conditions.
8.7 Applicable law and jurisdiction
The Agreement is governed by and will be interpreted in accordance with Belgian law, without giving effect to any laws of conflict. Any dispute with respect to the validity, interpretation or execution of the Agreement will be finally settled by the competent courts of Antwerp, section Antwerp.
The following definitions shall apply to these Terms and Conditions, unless the context necessarily requires otherwise:
Article: shall mean an article of these Terms and Conditions;
Customer Data: means the set of data, documents and any and all other content or materials belonging to the Customer that is supplied or made available to Studio Plankton in the course of the execution of the Deliverables;
Deliverables: means Services and/or materials, as the case may be;
Design Deliverable: means the specific graphic and product design deliverable that has been selected by the Customer resulting from the provision of Design Services by Studio Plankton;
Design Services: means any Services provided by Studio Plankton relating to interactive 3D, 3D applications (AR, VR, XR), 3D Configurators, 3D development and video production;
Fees: means any and all amounts due by the Customer to Studio Plankton in consideration for the Deliverables;
Generic Developments: shall have the meaning as set forth in Article 5.2;
Intellectual Property Rights (IPR): means any and all now known or hereafter existing (a) rights associated with works of authorship, including but not limited to copyrights, copyrightable works (including but not limited to mask work rights) and moral rights; (b) trademarks, trade dress, trade names, corporate names or service mark rights; (c) trade secret rights and other confidential information (including but not limited to ideas, information, improvements, specifications, drawings, programmer notes, discoveries and proposals); (d) patents, patent disclosures, and inventions (whether patentable or not) know-how and industrial property rights; (e) logos, layout design rights, design rights, database sui generis right, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; whether registered or not, (f) computer software programs (including but not limited to source code and object code), data, databases and documentation thereof and (g) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world;
Personal Data: has the meaning as specified in the General Data Protection Regulation (“GDPR”);
Quotation: means a form of quotation submitted by Studio Plankton to the Customer in which these Terms and Conditions are or are deemed to be incorporated;
Services: means the services to be provided by Studio Plankton to the Customer as mutually agreed by the Parties;
Specifications: means any written functional, technical, design or other specification applicable to the Deliverables, as mutually agreed by the Parties;
Specific Developments: means any part of the final Technical Deliverables that are fully completed other than Generic Developments that are designated explicitly to be Customer specific in the relevant Quotation;
Technical Deliverables: means the Software and electronics.