GENERAL TERMS AND CONDITIONS
These Terms and Conditions are used by Faber Audiovisuals B.V., Univate B.V. and their group companies as referred to in article 2:24b Dutch Civil Code (DCC), if such group company uses these Terms and Conditions.
Article 1 – Definitions
In these Terms and Conditions the above and below capitalized terms have the following meanings:
1.1 Article: a provision of these Terms and Conditions.
1.2 Contract: the agreement concluded between Customer and Provider, which may consists of a lease agreement for the lease of Equipment, a commissioning agreement (assignment) for the provision of audiovisual services or another type of agreement.
1.3 Customer: a (potential) counterparty of Provider, which may be a lessee, a principal or other type of customer.
1.4 Dry Hire: the lease of solely the Equipment, without any additional services in relation to the Equipment, such as installation, construction, operation, maintenance and/or deconstruction of the Equipment.
1.5 Equipment: the movable goods that are to be leased by Provider to Customer in accordance with the Contract on a temporary basis and as a temporary device, such as lighting, sound, video and LED equipment, together with all auxiliary materials and accessories.
1.6 Information Carriers: magnetic tapes and disks, optical disks and all other means intended to record, amend, process, transfer, copy or publish texts, images or other data in the broadest sense, with the help of equipment.
1.7 Location: the agreed location or locations where the Equipment is used by the Customer on a temporary basis and as a temporary device.
1.8 Party: Customer, or as applicable, Provider.
1.9 Parties: Customer and Provider jointly.
1.10 Provider: the legal entity using these Terms and Conditions.
1.11 Source Files: digital files that are used for the performance of the Contract or that are created during the performance of the Contract.
1.12 Staff: employees, interns, officers, hired staff and other persons who work for a Party.
1.13 Terms and Conditions: these terms and conditions.
Article 2 – Applicability
2.1 Unless the Parties explicitly agree otherwise in writing, these Terms and Conditions apply to the conclusion, contents and performance of all Contracts, including subsequent and follow-up Contracts, and to all disputes in connection therewith.
2.2 These Terms and Conditions form an integral part of the Contract.
2.3 The Customer’s terms and conditions are only applicable if the Parties have explicitly agreed in writing that those are applicable, thereby excluding these Terms and Conditions.
Article 3 – Conclusion of Contracts
3.1 All of Provider’s offers are non-binding and are, with regard to the Equipment issued subject to early lease or sale of the Equipment.
3.2 Any new offer made by Provider is regarded as a new and separate offer which is deemed to replace any previous, non-accepted offers.
3.3 Unless agreed otherwise in writing, all of Provider’s offers are based on the data and information known at the time of such offer, and on labor conditions, work hours and work schedules mentioned in the offer. If the Contract is not executed under such labor conditions, work hours or work schedules, Customer must pay the additional costs related thereto, including extra work hours and waiting hours.
3.4 Provider is entitled at all times to end negotiations with Customer at its own discretion without having to pay any compensation whatsoever to Customer. Provider furthermore reserves the right to refuse any purchase order, assignment or other type of order at its own discretion.
3.5 A Contract is deemed concluded if: (i) Parties sign the Contract drafted by Provider, (ii) Provider has accepted Customer’s order in writing, (iii) the Customer has timely accepted and confirmed Provider’s offer in writing and Provider reconfirms Customer’s acceptance and confirmation in writing by sending an order confirmation, or (iv) Provider starts with the provision of services, including without limitation the lease of Equipment, at the Customer’s request.
Article 4 – Prices
4.1 All prices are excluding VAT and excluding other costs such as costs for insurance, transport, loading and unloading, lodging, reimbursements and third party hire, unless Provider explicitly indicates otherwise in writing.
4.2 Budgets and estimates are an indication only, are subject to changes and are not to be regarded as fixed-price offers. Budgets and estimates are provided on the basis of the then current data and
information, as made known by the Customer.
4.3 The Customer accepts that amendments in an assignment, requested by or on Customer’s behalf, including changes in instructions after the receipt of designs, blue prints, models, drawings, drafts, sketches, samples, story boards, specifications and other work required as a result of changes to the assignment, may lead to changes in the budget, estimate and/or the pricing. This is also the case for extra laborious models or animations, unclear descriptions, sketches, drawings or models, unusable or otherwise inadequate Information Carriers, inadequate software or files, inadequate submission of materials or products supplied by the Customer and other similar submissions of the Customer that cause more work or costs for Provider than it could, at the conclusion of the Contract, reasonably have expected.
4.4 The actual invoiced costs depend on the actual hours of work, costs and other activities in relation to the performance of the Contract.
4.5 In case of composed offers there is no obligation to deliver a part of the total work for a proportionate part of the price stated in the offer.
4.6 If the Equipment, due to an act or omission of Customer or other circumstances on the Customer’s part, cannot be picked up by, or delivered to the Customer on the agreed delivery date, the Customer is still obliged to pay the lease price from the agreed start date in the Contract, unless explicitly agreed otherwise.
Article 5 – Payment
5.1 Customer must pay within the payment term indicated in the offer, order confirmation or invoice.
5.2 Provider is entitled to demand a complete or partial upfront payment either before or during the performance of the Contract. Provider reserves the right, without affecting its other rights, to suspend the performance of the Contract, with or without notifying the Customer, until the advance invoice is paid.
5.3 Payment can only be made in euros and without setting-off, deduction, reduction or suspension. If the Customer has refuted an invoice within the payment term and the refusal is, at the Provider’s discretion, well founded, the payment may only be suspended for the relevant refuted part.
5.4 All costs in relation to payments, including in relation to providing security, bank costs and currency related costs, are borne by the Customer.
5.5 In case the payment term is exceeded, without affecting the Provider’s other rights and without an additional payment reminder being required, the Customer is in payment default, regardless of the non-payment’s cause. In that case, without affecting the Provider’s other rights, such as the right to suspend its own obligations and the right to take back the Equipment, the Customer must pay the statutory rent plus 2% during the entire period until the date the invoice amount is paid in full. In addition, all unpaid invoices become immediately due and all other consequences of the payment default enter into effect.
5.6 All out of court costs, explicitly including the costs for sending payment reminders, settlement negotiations and other activities in preparation of legal proceedings, as well as the in court costs, that Provider must reasonably make as a result of the Customer’s payment default, are borne by Customer. The out of court costs are at minimum 15% of the invoice amount increased with rent and at minimum € 100,00 (one hundred euros).
5.7 The Customer’s payments are first for payment of the costs set out in Article 5.6, then for payment of the rent due and are then deducted from the part of the total invoice amount indicated by Provider, irrespective of the Customer’s deviating instructions in this respect.
5.8 Provider is entitled to set-off, irrespective of whether the statutory criterion for setting-off are met, amounts owed to Provider or Provider’s affiliates in the same group of companies, against amounts owed to Customer or Customer’s affiliates in the same group of companies, irrespective of the legal ground of such claims.
Article 6 – Security
6.1 If, in Provider’s opinion, it has good grounds to believe that Customer will not timely or properly be able to fulfil its obligations, Customer must, at Provider’s first request, provide adequate security as requested by Provider, for the complete fulfilment of Customer’s obligations, or to replace or supplement existing security. The security must completely cover the amounts owed to Provider, including rent and costs and must allow Provider to easily recover the amounts.
6.2 If Customer does not comply with Provider’s request for security as set out above within 7 (seven) calendar days, Customer is in default and all consequences of such default enter into effect, including without limitation the Provider’s right to suspend its obligations and the right to take back the Equipment.
Article 7 – Performance of the Contract (general)
7.1 Customer must give all instructions with respect to the performance of the Contract in writing. If Customer gives oral instructions, Provider will where possible confirm these instructions in writing. Without affecting the other provisions herein, Provider is not liable for the consequences of any imprecisions or misunderstanding as a result of the Customer’s oral instructions.
7.2 Unless explicitly agreed otherwise in writing or indicated otherwise by Provider, delivery terms,
schedules, milestones, review moments etc. are indications only and are non-binding. Changes in schedules with respect to amendments or other requests made by Customer, including those indicated in Article 4.3, may result in the scheduled production resources becoming unavailable, which may lead to delays. Customer accepts such consequences.
7.3 Customer must in general provide the cooperation reasonably necessary with respect to the performance of the Contract, including without limitation making available facilities, allowing access to premises and buildings, receiving movable goods, making available sufficient and qualified Staff to assist Provider’s Staff, giving timely input and timely taking decisions, if required.
7.4 Unless explicitly agreed otherwise in writing or indicated herein, Customer is responsible for supplying the required (technical) facilities, infrastructure and devices to be able to use the delivered works.
7.5 Customer must ensure that all information and files it provides are correct, up-to-date, accurate and complete, that they do not infringe third party (intellectual) property rights and that they comply with all applicable laws and regulations. Provider is not obliged to verify whether such information and files comply with the foregoing.
7.6 When Provider’s Staff carries out work at the Customer’s locations (whether or not owned by Customer), Customer ensures the labour condition are in conformance with Dutch standards.
7.7 The Customer not complying with its obligations set out in the Contract (including these Terms and Conditions) leads to its default and Provider is then, amongst others, entitled to suspend its own obligations and invoice any additional costs in relation thereto.
Article 8 – Specific provisions regarding the lease of Equipment
8.1.1. In addition to the other provisions of these Terms and Conditions, the provisions of this Article 8 apply to the lease of Equipment.
8.1.2. In case the agreed Equipment is not available before the start of the Contract’s performance Provider is entitled to lease replacement Equipment of similar or better quality.
8.2. Lease term
8.2.1. The Contract is concluded for the lease term indicated therein and starts on the agreed date of delivery of the Equipment.
8.3. Provider’s obligations
8.3.1. Provider is obliged to make available the Equipment in proper state and in accordance with the specifications, sizes and, where necessary, weight as agreed and as indicated in the Contract.
8.3.2. Unless agreed otherwise in writing, Provider will make available the Equipment by delivery at the agreed Location.
8.4. Customer’s cooperation
8.4.1. Customer must indicate where the Equipment must be unloaded. After the event, Customer must indicate where the Equipment must be uploaded. Without affecting the other provisions herein, Provider is, irrespective of the legal ground, not liable for any damage as a result of following the Customer’s instructions regarding unloading and uploading.
8.4.2. In case the event takes place outside, Customer is obliged to ensure safe and accessible conditions to the terrain. If the delivery, uploading, unloading and/or removal of the Equipment as a result of the terrain’s conditions is/are not possible on the agreed date or are delayed as a result thereof, Customer must compensate the Provider’s ensuing costs. Without affecting the other provisions herein, Provider is, irrespective of the legal ground, not liable for damage occurring to roads, paths or grounds on the Location or at or near to the Equipment’s location within the Location, irrespective of whether this is private or public property, as a result of following the Customer’s instructions regarding delivery, unloading, uploading and/or removal of the Equipment and/or accessing and/or leaving the terrain.
8.4.3. Customer must give instructions to Provider with respect to where to install the Equipment, before the Contract is performed.
8.4.4. Customer is responsible for ensuring all permits, licenses and other permissions are obtained for the organization of the event and the Equipment’s use.
8.4.5. Customer must strictly follow Provider’s advice with regard to the Equipment’s positioning.
8.4.6. If Provider deems this appropriate for the Equipment, Customer must timely and without extra cost make available electricity and electrical appliances. At Provider’s first request, Customer must ensure there is enough light to work safely, whether or not this takes place at night.
8.4.7. Customer must enable Provider and its Staff to access and to leave the Location for, as applicable, the delivery, unloading, uploading, construction, installation, operation, maintenance, deconstruction and/or removal (from the Location) of the Equipment. If needed, Customer will make available the required tickets for these purposes.
8.4.8. Customer is responsible for ensuring that any work that must be carried out by its Staff is timely rounded off before the start of the construction and installation of the Equipment so that Provider
has sufficient time to perform the agreed work. Provider is entitled to invoice waiting hours if such work is not timely rounded off.
8.5. Equipment’s use
8.5.1. Customer must use the Equipment as a diligent lessee and use it diligently and professionally in accordance with the Equipment’s intended purpose. Customer must comply with all notified or accompanying instructions with regard to the Equipment.
8.5.2. If the Equipment cannot be installed, constructed, maintained and/or operated by Provider on certain dates as indicated in the Contract, the Customer may not use the Equipment on such dates without Provider’s prior explicit written consent.
8.5.3. Without Provider’s prior explicit written consent, Customer is not entitled to make changes to the Equipment. Provider is entitled to make changes to the Equipment if this is required for a proper performance of the Contract and/or to comply with applicable laws- and regulations or government (local or otherwise) imposed orders or measures.
8.5.4. Without Provider’s explicit consent, Customer is not permitted to: (i) open the Equipment’s packaging/transport box or any part thereof and/or to (ii) move the Equipment and/or to (iii) operate the Equipment.
8.5.5. At the end of the rental term, Customer must make the Equipment available to Provider.
8.6.1. The Equipment may solely be used at the Location. If the Equipment, at any time after its delivery and during the lease term, is not at the Location or is moved to another location, Provider is entitled to end the Contract immediately, either by rescinding (“ontbinding”) or terminating (“opzegging”) it in whole or in part. In addition, the Customer then forfeits an immediately payable penalty of € 50,000 (fifty thousand euros), without affecting Provider’s other rights including without limitation the right to claim damages and compliance with the above.
8.6.2. If the Equipment at the Location is situated in a movable object with the control room in it, the Customer, nor its Staff are allowed to enter the control room, unless this is at a Provider’s Staff’s invitation and escort and provided all safety procedures set by Provider are strictly complied with.
8.7. Audio visual transmission materials
8.7.1. Unless explicitly agreed otherwise in writing, Customer is responsible for making available audiovisual transmission material that must be shown and/or transmitted via the Equipment, as well as for its contents. Customer must, where required at its own cost ensure all required permits, licenses and consents are obtained in order to show and transmit such material via the Equipment. Customer is advised to make a backup copy of any original material before using it in the Equipment or in connection with the use of the Equipment.
8.7.2. Customer indemnifies and holds harmless Provider both in and out of court for all amounts payable in relation to third party claims based on the argument that showing and/or transmitting the transmission material and/or the material itself infringe their (intellectual) property rights and/or do/does not comply with applicable laws and/or regulations, unless such claim can be wholly attributed to Provider.
8.7.3. Without affecting the other provisions herein, and irrespective of the legal ground, Provider is not liable for any loss of or damage to any (original) transmission material.
8.8. Dry Hire
8.8.1. In case of Dry Hire, the provisions in Articles 8.4.3, 8.4.5, 8.4.6 second sentence, 8.4.7, 8.4.8, 8.5.2, 8.5.4 and 8.6.2 are not applicable.
8.8.2. In case of Dry Hire, Provider is not obliged to make inquiries about the Equipment’s intended use or about the circumstances under which the Equipment will be used. Without affecting the other provisions herein, irrespective of the legal ground of the claim, in such case Provider shall not be liable for the Customer’s application and/or use of the Equipment.
8.9. Protection and insurance of Equipment
8.9.1. Customer is obliged to take all necessary measures to fully protect the Equipment during the lease period against vandalism, theft, loss and other risks. Customer is obliged to secure the Equipment, the premises, the Location and the location where the Equipment is situated, which means amongst others that third parties shall not have unauthorized access to the Equipment.
8.9.2. As of the Equipment’s delivery date and during the lease period Customer is obliged to take out the following insurance policies with a renowned insurance company and to remain insured: (a) an event insurance and (b) a general liability or other insurance which insures the Equipment against all risks that may occur in respect of the Equipment and fully insures the Equipment’s value.
8.9.3. Customer shall name Provider as co-insured under the insurance policies as referred to in Article 8.9.2, without Provider having to pay any insurance premiums, deductibles or other fees (to the insurance company) with respect to the Equipment. Customer must ensure that payments made by the insurance company in respect of the Equipment shall be paid directly to Provider. Customer shall timely pay all premiums due and provide Provider with a copy of the insurance policies and
applicable insurance conditions upon Provider’s first request. If necessary, Customer assigns its claim on the insurance company with respect to the insurance payment regarding the Equipment to Provider.
8.9.4. If Customer is not insured because it does comply with its obligations pursuant to Articles 8.9.2. and/or 8.9.3, the Customer is liable without limitation for all damage to the Equipment, including without limitation vandalism, theft, loss and other risks that have occurred, irrespective of whether this is caused by force majeure on the part of Customer.
8.10. Damage to Equipment and complaints about the Equipment
8.10.1. Customer is obliged to immediately notify Provider of damage to the Equipment and complaints regarding the (functioning of) the Equipment and to confirm this in writing to Provider within 24 hours and ultimately within three calendar days from the end of the relevant event. If Customer has not complained within the above term, Customer’s rights in respect thereof expire and Provider shall not be liable towards Customer.
8.10.2. If Provider finds a claim to be justified (which in any event is not the case if the problem with the Equipment is caused by Customer and/or Customer’s Staff and/or movable goods used by Customer and/or otherwise can be attributed to Customer), Provider shall then only be obliged to replace or repair free of charge and within a reasonable term the part or parts of the Equipment or the Equipment to which the complaint relates, or to reimburse an amount in accordance with Article 8.10.3, at Provider’s discretion.
8.10.3. If at any time during the lease term the Equipment does not function for a total transmission time of more than 15% of the total planned transmission time on a certain day as a result of: (i) a circumstance which in Provider’s opinion should be for Provider’s account, (ii) the non-functioning of the Equipment itself, or (iii) acts or omissions of Provider’s Staff, and this problem cannot be solved or, as the case may be, repaired by Provider within a reasonable term, Provider shall refund Customer an amount equal to the lost transmission time and which shall be calculated as a certain percentage of the total rent owed by Customer, exclusive of transportation, labor and other costs, and which takes into account the number of used screens and days of use, provided that Provider’s maximum liability shall, irrespective of the legal ground for a claim, be limited to the amount that Customer has actually paid for the lease of the relevant Equipment. The provisions of Articles 15.1 up to and including 15.9 shall apply equally.
8.10.4. Customer’s claims implying the Equipment delivered by Provider does not conform to the Contract, expire one calendar month after the relevant Equipment’s delivery to Customer.
8.10.5. With regard to defects in the Equipment which were known to Provider or which should have been known to Provider at the time the Contract was concluded, the mandatory provisions in the applicable law apply, in as far as it is not permitted to deviate from such provisions.
8.11. Recovery of Equipment
8.11.1. If Customer does not comply with one or more of its obligations pursuant to the Contract (including for the avoidance of doubt its obligations set out in these Terms and Conditions), Provider is entitled to take back or have taken back the Equipment.
8.11.2. Customer hereby irrevocably authorizes Provider to access or have accessed the terrain and/or areas where the Equipment is situated and is obliged, as the case may be, to ensure third parties that are authorized to grant permission for such access, provide such permission.
8.11.3. All of Provider’s costs in relation to taking back the Equipment as a result of the Customer’s non-compliance are borne by the Customer.
Article 9 – Special provisions regarding assignments
9.1.1. In addition to the other provisions of these Terms and Conditions, the provisions of this Article 9 apply if Provider provides services or carries out work.
9.2. Performance of the assignment
9.2.1. Unless the Parties explicitly agree otherwise in writing, Provider does not have an obligation to deliver a certain result.
9.2.2. Provider endeavors to create the works as a reasonably expert assignee in accordance with the design, blue print, model, drawing, draft, sketch or story board or the samples.
9.3.1. Customer must, immediately after delivery, investigate whether Provider has properly performed the Contract and is also obliged to inform Provider immediately in writing if in its opinion this is not the case. In the written notification, Customer must properly specify in what way Provider did not comply with its obligations. Provider shall be deemed to have complied with its obligations in absence of timely investigation and/or notification as per the foregoing.
9.3.2. The Customer’s approval of samples is regarded as Customer’s acknowledgement that the Provider has properly performed the work prior to the samples.
9.3.3. Provider is at all times entitled to replace an improper performance with a proper performance,
unless the default cannot be remedied.
9.3.4. The Provider’s performance is regarded as proper performance, if the Customer has started using the delivered work, has amended it, processed it, delivered it to third parties, respectively has had it taken into use.
9.3.5. Deviations between the delivered work and the original design, blue print, model, drawing, draft, sketch or story board or samples, cannot be a ground for refusal, discount, rescission of the Contract or claims for damages, if they are minor and/or if they do not prevent it from being used. Deviations that, taking into account all circumstances, in all reasonableness do not have any or limited influence on the use value of the delivered work, are always deemed to be minor.
9.3.6. In case of non-minor deviations, Provider shall, provided Customer has complied with Article 9.3.1, try to remedy the deviations without undue delay. Provider cannot however guarantee the deviation can be remedied. If Provider cannot remedy the deviation before the event or another agreed start date, Provider reserves the right to rescind the Contract and to credit the amount that represents the non-minor deviation. This is then the Customer’s only remedy.
Article 10 – Property of movable goods
10.1 Customer acknowledges and respects that Provider will at all times remain the Equipment’s owner. Customer must notify third parties, including but not limited to its customers, the parties that own or are responsible for the event in question as well as third parties that have been engaged by Customer to assemble and disassemble the event, in a clear and timely manner, meaning ultimately before the moment the Equipment is to be used, in writing that the Equipment: (a) is owned by Provider, (b) has been made available to Customer on a temporary basis and as a temporary device and (c) has to be removed (by Provider) and to be returned to Provider after the event. Customer must provide Provider with a copy of said notifications upon Provider’s first request.
10.2 Customer will not do or omit anything which can cause detriment to Provider’s property rights, including without limitation affirming the Equipment in such a manner that it becomes part of another good (“natrekking / bestanddeelvorming”), and removing property notices from the Equipment.
10.3 Without the Provider’s prior written consent, Customer is not entitled to sell, encumber, give in security, lease, sub-lease the Equipment in any manner, whether in whole or in part, whether directly or indirectly.
10.4 Customer is obliged to inform Provider immediately if third parties exercise rights with respect to the Equipment or if Customer becomes aware of third parties intending to do so.
10.5 If and to the extent Provider has leased the Equipment from third parties, the provisions of Articles 10.1 up to and including 10.4 apply equally and the respective third party is regarded as its owner.
10.6 With regard to the use, storage, amendment and processing of other movable goods that are entrusted by the Customer to Provider, Provider will use the same diligence it uses for its own goods. Customer bears the risk of such goods and must insure them. Customer grants Provider a right of pledge on such goods as security for any amounts payable to Provider.
10.7 In case Provider delivers movable goods to the Customer (this is deemed for this section not to include Equipment as this is only leased to Customer), the title in such goods is retained until Customer has paid the price for such movable goods (if a price was agreed), as well as the costs for work carried out or to be carried in relation to such movable goods, as well as any claims due to non-compliance with the Customer’s obligations pursuant to the Contract, including interest, costs and fines, as applicable.
Article 11 – (Intellectual) property rights
11.1 Customer indemnifies and holds harmless Provider, both inside and outside court, for all amounts payable in relation to third party claims based on the argument that their intellectual property rights are infringed due to the Provider’s performance of the Contract, unless such claim can be wholly attributed to Provider.
11.2 The Source Files remain Provider’s property. Provider is not obliged to save the Source Files and does not guarantee its fitness for reuse. Unless explicitly agreed otherwise in writing, the Customer does not have a right to access to, or a copy of the Source Files.
11.3 Customer is granted a limited, not-assignable, non-transferable, non-sublicenseable license to use that which is delivered in the form, the extent, the manner, for the term and for the purposes set out in the Contract.
11.4 Unless explicitly agreed otherwise in writing, Customer is not granted any ownership rights with regard to the delivered work, regardless of whether the Customer publishes and/or reproduces it under its own name.
11.5 Provider is entitled to mention its name in the delivered work in an appropriate place and is also entitled to include in it the © symbol and the year of first publication. Customer must include Provider’s name and/or other information included in the delivered work in publications and reproductions thereof, unless Provider has consented to deviations thereof in writing.
11.6 In case the delivered work is shown/exhibited by or for Customer, images and sounds may not be shown separately, only joint publication thereof is permitted, and it must at all times be shown in whole and not in part.
11.7 Customer is responsible for obtaining the publication, distribution, recording and/or distribution rights with regard to the music, texts and/or other elements that are part of the delivered work.
11.8 Provider is, without affecting its other rights, at all times entitled to use the delivered work or a reproduction thereof for other customers, for its own publicity, promotion and exhibition thereof and to mention the Customer’s name in connection therewith, unless the Parties have agreed otherwise in writing.
Article 12 – Force majeure
12.1 If a Party cannot properly perform its obligations in whole or in part, whether temporarily or permanently, as a result of one or more circumstances which are not at that Party’s risk, including without limitation the circumstances listed in Article 12.2, but excluding the Customer’s payment obligations and the circumstances set out in Article 12.3, the Party affected by force majeure shall not be liable towards the other Party for its failure to comply with its obligations under the Contract, any default occurring as a consequence thereof or any delay in the performance of the Contract, and each Party is entitled to rescind the Contract, in whole or in part. If the impossibility to perform due to force majeure is temporary, the Contract may be performed on a later date, unless performance on a later date is of no value to Provider.
12.2 The following circumstances are in any event regarded as force majeure events on the part of Provider: governmental (local or otherwise) regulations or orders which prohibit or restrict the use of the leased Equipment or the Equipment to be leased or otherwise prohibit or restrict the performance of the Contract, strikes, lock outs, union actions, illness, disability or other non-availability of Provider’s Staff, (impending) epidemic/pandemic, limitations/prohibitions of in- and/or export with respect to the Equipment, transportation problems, non-performance of Provider’s suppliers, subcontractors or transport companies used by Provider, signal and/or power disruptions or other disruptions, blockage or stagnation of public supplies, damage to (power) cables, fire, machine failure, erroneous stage assembly, erroneous lighting, no or erroneous representation of sounds, nature-/nuclear disasters, war, danger of war, threats of war, terrorist attacks, activities and/or threats of terrorism. Customer cannot claim or enforce any right to payment of damages, costs, rent or performance of Provider’s obligations.
12.3 The following circumstances shall not be regarded as force majeure events on the part of Customer: (i) weather conditions, (ii) the cancellation, for whatever reason, or (early) termination of the event for which the Equipment leased and/or, as the case may be, Provider’s Staff has been hired, (iii) the cancellation, for whatever reason, of an assignment given to Provider, (iv) the non-use of the Equipment after delivery to Customer, and/or (v) the non or non-timely or improper performance of arrangements made with third parties by the Customer.
12.4 Each Party shall notify the other Party verbally forthwith of an event of force majeure and confirm this verbal notification within 24 hours after the verbal notification.
Article 13 – Termination, Rescission
13.1 If Customer fails to comply with any of its obligations under the Contract and/or these Terms and Conditions, or if: (a) an application for a (preliminary) suspension of payments is made by Customer or granted to Customer, (b) an application for bankruptcy is filed with regard to Customer or Customer is declared bankrupt, (c) any arrangements with Customer’s creditors are made or steps are taken with a view to the general readjustment or rescheduling of its debts, (d) Customer otherwise loses or is limited in its control over its assets, (e) Customer’s business is transferred in whole or in part, liquidated, wound up, discontinued, or relocated abroad, or a decision is taken to the above effect or (f) Customer loses factual control over (a part of) the Equipment, Provider is entitled to terminate the Contract in writing with immediate effect, either by rescinding (“ontbinden”) the Contract, in whole or in part, or by terminating the Contract (“opzeggen”) and to suspend the (further) performance of its obligations under the Contract, whether or not with notice to the Customer, all such without affecting any other rights or remedies Provider may have and without any compensation being due by Provider. If in Provider’s opinion performance is not possible or desirable, Provider is not required to give a term for performance in its written notification.
13.2 If Provider terminates or rescinds the Contract in accordance with Article 13.1, any and all claims it may have vis-à-vis Customer shall become immediately due and payable. After the Contract has ended, for whatever reason, Provider is not obliged to repay any amounts paid to it, unless the Parties have agreed otherwise in writing.
Article 14 – Cancellation by Customer
14.1 If Customer cancels an event and therefore the Contract cannot be performed, Customer is obliged to pay a percentage of the agreed rent in accordance with the schedule set out below:
Cancellation up to 1 month prior to the commencement of the lease term: 40% of the total rent.
Cancellation 1 month prior to the commencement of the lease: 60% of the total rent.
Cancellation 2 weeks prior to the commencement of the lease: 75% of the total rent. Cancellation 1 week prior to the commencement of the lease: 90% of the total rent. Cancellation after the Equipment and/or, as the case may be, Provider’s Staff has arrived at the Location: 100% of the total rent.
14.2 Customer is entitled to cancel / end an assignment before Provider has started the work, provided 8
Customer compensates Provider’s damage suffered as a result thereof. Such damage includes in any case the preparation costs, including costs for making the offer, reserved production resources, purchased materials, hired services and storage.
14.3 In case Customer cancels / ends an assignment after Provider has started the work, Provider is entitled to invoice the amount it would have invoiced if the assignment had not be cancelled / ended early. This also applies if Provider cannot perform the work due to circumstances on the part of Customer, during the period such circumstances continue.
Article 15 – Liability
15.1 Provider’s liability with regard to the lease of Equipment is, irrespective of the legal ground for a claim, limited to a maximum of the total rent paid by Customer during the lease period in respect of the lease of the Equipment which has caused the Customer’s damage. Provider’s liability on the basis of this Article 15.1 shall never be more than €75,000 (seventy five thousand euros) per event.
15.2 Provider’s liability for work carried out is limited to the amount paid by the Customer for such work. Provider’s liability on the basis of this Article 15.2 shall never be more than €2,500 (two and a half thousand euros) per assignment.
15.3 Without affecting the other provisions herein, Provider is, irrespective of the legal ground, not liable for damage caused by the use, processing or transferring of information submitted by the Customer, nor for damage caused by or after Customer has used, adapted or processed the movable goods or works made after delivery thereof, respectively has had this used by another, has adapted or processed it or had it delivered to a third party, unless the damage would also not have been foreseeable for a diligent and alert principle.
15.4 Irrespective of the legal ground for a claim, Provides is not liable for consequential losses or damages, whether suffered directly or indirectly, including but not limited to: loss of profits, loss of revenue, loss of goodwill, business interruption, reputational damage, incurred losses, costs and expenses, loss or reduction of enjoyment, loss of data, loss of contracts, lost assignments, loss of savings, claims from Customer’s customers, claims from Customer’s Staff, fines, non-recouped investments, or losses caused by disruption or stoppage of production and/or business.
15.5 Unless performance of the Contract is not possible, Provider will only be in default (“verzuim”) after the Customer has sent a written notice of default in which the (implied) breach of obligations (“tekortkoming”) and the relevant obligations are sufficiently specified and which allows Provider a reasonable term to comply with its obligations.
15.6 The limitations of liability as referred to in Article 15.1 and Article 15.2 do not apply if and to the extent that Provider’s liability for damages is insured under any of Provider’s insurance policies and the insurance policy pays out. In that case Provider shall only be liable to compensate for any damages to the extent such damages are covered by the relevant insurance policy in the relevant matter, subject to the applicable insurance policy conditions. Provider is not obliged to exercise its rights under the insurance policy. For the avoidance of doubt, the other provisions of this Article 15 shall remain in full force and effect.
15.7 Provider stipulates all legal and contractual defenses that it can invoke in respect of its liability towards Customer also for the benefit of all persons or legal entities involved in the performance of the Contract.
15.8 The limitations of liability as referred to in Articles 15.1 up to and including 15.6 shall not affect liability based on mandatory applicable law. Provider shall not invoke the limitation or exclusion of its liability in the event of willful recklessness or willful intent on the part of Provider’s Staff that are part of Provider’s management.
15.9 Customer must notify Provider of the damage as soon as possible and ultimately within one (1) month after becoming aware of the damage, in absence of which all claims expire. Every claim for damages expires if Customer does not initiate a claim in legal proceedings, ultimately within six (6) months after the moment the Customer was aware or should reasonably have been aware of the damage.
15.10 Customer is, irrespective of the legal ground of a claim, liable towards Provider for all damage that is caused at the Location and during the lease period to: (i) the Equipment and/or (ii) Provider’s Staff and/or (iii) property of Provider’s Staff, unless such damage is caused by a mistake by Provider’s Staff.
15.11 If Provider receives a third party claim, including fines or orders, with regard to damage for which it is not liable pursuant to the Contract and/or these Terms and Conditions, Customer will fully indemnify and hold harmless both inside and outside of court Provider for any amounts it must pay in this respect.
Article 16 – Confidentiality
16. If the Parties have not concluded a non-disclosure or confidentiality agreement or if a non-disclosure or confidentiality agreement concluded between the Parties is no longer in place, the following shall apply. Each Party undertakes not to disclose any confidential information concerning the Contract(s), any and all offers, confirmations or assignments and orders, or concerning the business and affairs of the other Party, for any other purpose than performing the Contract(s), except: (a) to the extent required by applicable law or by any competent authority; (b) to its professional advisers subject to a 9
duty of confidentiality and only to the extent necessary for any lawful purpose; and (c) to the extent that at the date hereof or hereafter such information is or shall become public knowledge, otherwise than through unlawful disclosure by any person of which that person at the time of disclosure was or could reasonably have been aware that it was unlawful. Confidential information shall comprise but not be limited to: price lists, customer data, know-how, designs, blue prints, models, drawings, drafts, sketches, story board, samples, specifications and all other information, written or verbal, whether or not contained in data carriers or in the Information Carriers, received by Customer from Provider.
Article 17 – General provisions
17.1 The Parties can only deviate from these Terms and Conditions by written agreement.
17.2 In case of inconsistency between the Contract and these Terms and Conditions, the Contract prevails, unless the Parties explicitly agree otherwise in writing.
17.3 If any provision of these Terms and Conditions is invalid or unenforceable (in whole or in part), the other provisions of these Terms and Conditions shall remain in full force and effect. Parties shall use their best efforts to come to an agreement on a new provision which deviates to the slightest extent from the invalid or unenforceable provision, given the contents and purpose of these Terms and Conditions.
17.4 Without Provider’s prior written consent, Customer is not entitled to assign or transfer its rights and obligations pursuant to the Contract or its legal relationship with Provider to a third party. Provider is permitted to assign and/or transfer its rights and obligations to a third party taking over its business in whole or in part, without Customer’s consent.
17.5 If work is carried out at an external location (e.g. a film set or Customer’s office), Customer is not allowed to offer assignments or an employment agreement to Provider’s Staff without notification to Provider and Provider’s written consent.
17.6 If a Party at any time does not invoke a certain provision of the Contract or these Terms and Conditions, this does not imply a waiver of such provision.
17.7 In case of any inconsistency between the Dutch text of these Terms and Conditions and its translations, the Dutch text always prevails.
17.8 The expression “in writing” in these Terms and Conditions also includes facsimile, email or other electronic media, addressed at the address or number of a Party that was (made) known to the other Party and has previously successfully been used to communicate between the Parties.
17.9 The expression “delivery of Equipment” in these Terms and Conditions means the Provider physically making the Equipment available.
17.10 Parties agree that article 6:227b sub 1 Dutch Civil Code (“Burgerlijk Wetboek”) does not apply to business Customers. Customer waives it right to rescission (“ontbinding”), or annulment (“vernietiging”) on the basis of article 6:227b sub 4 and sub 5 Dutch Civil Code as well as 6:227c sub 2 and sub 5 Dutch Civil Code.
17.11 Parties agree that if Customer is established outside the Netherlands, articles 6:232 and 6:234 (jo. 6:230c) of the Dutch Civil Code apply.
17.12 Parties agree that articles 7:404, 7:407 sub 2, 7:408 sub 1 (unless Customer is a person as set out in article 7:408 sub 3) and 7:409 Dutch Civil Code are not applicable to assignments to Provider.
Article 18 – Applicable law and jurisdiction
18.1 The laws of the Netherlands are exclusively applicable to the legal relationship between Provider and Customer, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (1980).
18.2 The competent court of the area in the Netherlands in which the Provider has its main establishment has exclusive jurisdiction to settle all disputes between Provider and Customer arising under or in connection with any Contract or the performance of any Contract as well as any disputes regarding these Terms and Conditions, without affecting Provider’s right to choose the court that is competent by law or treaty.