Sporazum o sodelovanju po nizozemskem pravu: intelektualna lastnina, dodatno delo in odgovornost

A collaboration agreement between a developer and a contractor under Dutch law should settle four things before work starts: what is delivered, who owns the result, when payment is due and what happens if the project changes or fails. The biggest surprise is ownership: under Article 2 of the Dutch Copyright Act (Auteurswet) copyright stays with the maker unless it is transferred by a signed deed, so paying for the work does not make you the owner.

Other rules apply whether or not the contract mentions them, such as the rules on extra work in Article 7:755 of the Dutch Civil Code (BW) and the contractor’s liability for defects after delivery.

Which type of contract are you signing?

Dutch law has two main contract types for commissioned work. A contract for services (overeenkomst van opdracht, Article 7:400 BW) covers services such as development hours, advice or design. A contract for work (aanneming van werk, Article 7:750 BW) covers creating and delivering a work of a material nature for a price, the standard form for construction.

The difference has practical effects. Under Article 7:408 BW the client may terminate a contract for services at any time. Under Article 7:764 BW the client may also terminate a contract for work at any time, but must then pay the full price minus the contractor’s savings. Our overview of the vrste trgovinskih pogodb po nizozemskem pravu prikazuje, kam spada vsaka oblika.

Under a contract for work, Article 7:752 BW imposes a reasonable price if no price was agreed. Article 7:754 BW obliges the contractor to warn the client about errors in the assignment and defects in materials or plans supplied by the client, even if the contract is silent.

Who owns the intellectual property in the result?

The maker of a work holds the copyright. Under Article 2 Auteurswet copyright can be transferred, but the transfer requires a deed: a signed written document intended for that purpose. A purchase order, a paid invoice or a confirming email does not transfer anything.

Under Article 7 Auteurswet the employer is regarded as the maker of works created by employees in the course of their employment, unless agreed otherwise. That rule does not apply to freelancers, contractors or agencies, which is exactly the relationship a collaboration agreement covers. Article 8 Auteurswet treats a company as the maker if it publishes a work as its own without naming a natural person, but this is no substitute for a transfer clause.

Moral rights (persoonlijkheidsrechten, Article 25 Auteurswet) remain with the maker even after a transfer. The maker can waive the right to be named and the right to oppose changes, but not the right to oppose a distortion that harms his reputation. A good clause transfers the exploitation rights, records which moral rights are waived and settles whether the developer may show the project in a portfolio.

Other rights have their own statutes: patents under the Dutch Patents Act 1995 (Rijksoctrooiwet 1995), administered by the Netherlands Patent Office at RVO; trademarks and designs under the Benelux Convention on Intellectual Property or EU registrations; and databases under the Databases Act (Databankenwet). Our guide to pravo intelektualne lastnine na Nizozemskem explains how these interact, and RVO offers an IP skeniranje za podjetja.

What should a software agreement say about source code and licences?

Decide explicitly whether the client acquires the copyright in the code or a licence to use it. If this is left open, the developer keeps the rights and the client only has an implied licence of uncertain scope.

Even if the developer keeps ownership, Article 45j Auteurswet allows the lawful acquirer of a computer program to make the copies needed for its intended use. Copies made to load, display or correct errors in the program cannot be prohibited by contract.

Three further points belong in the contract. The developer should state which third-party and open-source licences are used, because a copyleft component can oblige the client to publish its own source code. A source code escrow arrangement protects a client that depends on software it does not own. Maintenance and support belong in a separate schedule with response times. See our articles on kako deluje licenciranje programske opreme in Pogodba o IT storitvah.

Who pays for changes and extra work?

Under Article 7:755 BW a contractor may only charge more for additions or changes requested by the client if he warned the client in time that the price would increase, unless the client should have understood this himself. Contractors who do extra work on a verbal instruction and invoice it afterwards often lose this argument.

Article 7:753 BW covers cost increases after the contract was concluded that are not attributable to the contractor: the court may adjust the price if the contractor did not have to take that risk into account. The practical solution for both parties is a written change procedure: each change recorded with scope, price effect and new deadline, signed before the work is done.

What happens at delivery and after?

Delivery (oplevering) is when the risk passes to the client (Article 7:758(2) BW). If the contractor reports that the work is ready and the client does not inspect and accept or reject it within a reasonable time, the client is deemed to have accepted it (Article 7:758(1) BW). The contract should therefore set who inspects, within which period and on which criteria.

As a rule the contractor is not liable for defects the client should reasonably have discovered at delivery (Article 7:758(3) BW). For construction work, since 1 January 2024 Article 7:758(4) BW makes the contractor liable for defects not discovered at delivery, unless they are not attributable to him. With a consumer client this cannot be set aside; with a business client only if expressly agreed in the contract.

After delivery, time matters. Under Article 6:89 BW the client must complain within a reasonable time after discovering a defect. Under Article 7:761 BW a claim for a defect in a delivered work becomes time-barred two years after that complaint, and in any event 20 years after delivery for buildings and 10 years for other works. Damages for non-performance follow from Article 6:74 BW, usually after a notice of default, and dissolution from Article 6:265 BW. See also our article on what to do when a izvajalec opravi slabo delo.

Limiting liability

Liability is usually capped by contract. Dutch courts accept limitation clauses between businesses but set them aside if relying on them is unacceptable under standards of reasonableness and fairness, typically in case of intent or deliberate recklessness by management. A cap linked to the contract value, an exclusion of indirect loss and matching insurance hold up better than a blanket exclusion.

If you use standard terms, they are splošni pogoji. Under Articles 6:233 and 6:234 BW the other party can annul a clause if the terms were not provided before or when the contract was concluded.

Which clauses should a collaboration agreement contain?

Beyond the statutory rules, a workable agreement settles a fixed set of points. Each of them prevents a dispute that otherwise ends up before the district court.

• Scope of work in an annex, including what is expressly excluded.
• Milestones and deadlines with a consequence, such as a penalty or a right to suspend payment.
• Payment terms: when invoices are due, interest on late payment and whether the final instalment depends on acceptance.
• Confidentiality in both directions, continuing after the project ends.
• Termination for convenience with a notice period and settlement of work in progress, and termination for cause on defined grounds.
• A non-solicitation clause limited in time and scope.
• Applicable law and competent court or arbitration institute; without a choice, the EU Rome I and Brussels I bis Regulations decide.

Electronic signing is possible. Under Article 3:15a BW an electronic signature has the same legal effect as a handwritten one if the method is sufficiently reliable, and the EU eIDAS Regulation (EU) No 910/2014 defines advanced and qualified signatures. For a copyright transfer, which requires a deed, use a method whose reliability you can prove later.

Kaj morate kot stranka preveriti?

• Check that the contract contains a signed transfer of copyright, or a licence of a clearly defined scope.
• Check which open-source components are used and under which licences.
• Check the acceptance procedure and the period for inspection at delivery.
• Complain in writing promptly after discovering a defect (Article 6:89 BW).
• Check whether escrow and a maintenance schedule are needed for software you depend on.

What should you check as the developer or contractor?

• Check whether the contract is a contract for services or a contract for work, and what that means for termination.
• Warn the client in writing before carrying out extra work that increases the price (Article 7:755 BW).
• Record which rights you keep, such as reusable code and the right to show the project in your portfolio.
• Provide your general terms before or when the contract is concluded.
• Check the liability cap against your insurance cover.

What can we do for you with a collaboration agreement?

naše real estate and construction lawyers and contract lawyers act for developers, agencies, contractors and the businesses that hire them, in Dutch and English.

• We draft or review your collaboration agreement, including the IP transfer clause.
• We draft a change procedure and the acceptance and delivery clauses.
• We review your general terms and liability cap.
• We draft the complaint and notice of default when work is defective or late.
• We assess claims for extra work under Article 7:755 BW.
• We conduct proceedings when a project dispute cannot be settled.

Povzetek

• Copyright stays with the maker unless transferred by a signed deed (Article 2 Auteurswet); payment alone does not transfer it.
• Article 7 Auteurswet only gives employers the rights in employees’ work, not in work by freelancers or agencies.
• Extra work can only be charged if the contractor warned in time (Article 7:755 BW).
• Complain about defects within a reasonable time; claims for defects in delivered work become time-barred two years after the complaint.

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