General Terms & Conditions of 2ShotMedia B.V. (‘2ShotMedia”)
Applicable from August 1st 2013
Scope
Introduction. These are the general terms and conditions of 2ShotMedia.
Scope. These general terms and conditions are applicable to all proposals from and agreements with 2ShotMedia (including follow-on assignments and services), including any supplements and changes. The terms are also applicable, if the client is already using the services of 2ShotMedia before having accepted the offer.
Beneficiaries. These general terms and conditions have been stipulated for the benefit of 2ShotMedia, its group companies, their directors and employees, as well as any third parties that have been hired by them.
Other general terms and conditions. The general terms and conditions of clients, suppliers, (sub)contractors and other third parties shall not be applicable.
Proposals and acceptance
Non-binding. A proposal shall be non-binding, unless the proposal specifies a date for acceptance.
Acceptance and execution by 2ShotMedia only. Therefore, assignments will only be accepted and executed by 2ShotMedia, also if the assignment has only been granted with a view to execution by a specific person. Sections 7:404 and 407 para. 2 of the Dutch Civil Code (Burgerlijk Wetboek) are not applicable.
No deviating acceptance. A client may only accept a proposal in its entirety. Partial acceptance or acceptance with modifications are deemed a rejection of the proposal, which shall not create any binding obligation for 2ShotMedia.
Multi-part proposals. 2ShotMedia may make a proposal that consists of multiple parts or phases. If the client wishes to accept one or more (but not all) parts of the proposal, 2ShotMedia shall have the right to adjust the price per part/phase accordingly.
Subsequent assignments. A proposal does not necessarily apply to subsequent assignments.
Services
Description. 2ShotMedia provides audiovisual productions.
Quality goal. 2ShotMedia shall execute the agreement to the best of its abilities. It strives for the highest quality in the execution of its work. Basically, this is a ‘best efforts’ obligation (inspanningsverplichting). A guaranteed result is, in view of the nature of the work, not possible.
Timing. Time schedules are indicative, unless agreed otherwise.
Information from the client
Provision. The client shall, before, during and after the assignment, provide all information to 2ShotMedia, of which it knows, or should reasonably have known that it is relevant for the execution of the assignment.
Accurate and complete. If the client provides information that is incorrect and/or incomplete, it shall not be able to claim against 2ShotMedia in this respect.
Cooperation with third parties
Nature of the projects. The nature of the projects entails that 2ShotMedia shall often work together with third parties.
No liability for damages caused by third parties. If the client hires a third party and such third party causes (directly or indirectly) any damage, 2ShotMedia shall not be liable for any such damage. Clause 4.2 shall be applicable.
Subcontracting
Outsourcing without prior written consent. 2ShotMedia is allowed to outsource any activities to a third party without the prior written consent of the client.
Any claim against a third party will be passed on. If a third party, instructed by 2ShotMedia, causes any damage for the client and 2ShotMedia has a claim against such third party, 2ShotMedia is willing to, at the request of the client (a) enforce such claim (at the expense of the client) or (b) transfer its claim to the client.
Invoicing
Remuneration. The remuneration (or the way in which it will be calculated) shall be specified in the agreement.
Expenses. The client shall reimburse 2ShotMedia for any reasonable out-of-pocket expense that 2ShotMedia incurred for the execution of the assignment.
Invoicing and payment terms. 2ShotMedia shall invoice upon meeting the agreed target or any agreed milestone, unless agreed otherwise. Invoices shall be paid within 14 calendar days after the date on the invoice.
Payment in case of early termination. In case of early termination, the renumeration shall be due and payable pro rate parte, regardless of the reason for early termination.
Currency, bank details. The client shall pay the amount due in euros (or the currency specified on the invoice) into the bank account specified by 2ShotMedia on the invoice.
VAT. The amount invoiced shall exclude VAT. The client shall pay any VAT due.
payment
Advance payment. The client shall pay an advance, if 2ShotMedia shall request one.
Late payment; interest. In case of late payment, the client, who will be in default by operation of law and shall owe 2ShotMedia an interest equal to the legal interest (wettelijke handelsrente) plus 1%, without any notice being required.
(Extra) judicial ollection costs . The client shall reimburse any collection costs (whether or not extrajudicial). The costs are established at 15% of the amount of the invoice, with a minimum of EUR 1,500 in case the client is not a natural person not acting in the course of a business.
In case of a natural person not acting in the course of a business, the (extra) judicial collecation costs will be calculatesd in accordance with the “Besluit Vergoeding voor Buitengerechtelijke Incassokosten” which entails the following (i) 15 % to be calculated in respect of the first amount of Eur 2,500 (ii) 10 % in respect of the second amount of Eur 2,500, (iii) 5 % in respect of the following amount of Eur 5,000, (iv) 1 % in respect of the following amount of Eur 190,000 and finally 0.5 % in respect of the surplus with a maximum of Eur 6,775 and an absolute minimum of Eur 40.
Suspension and retention
Suspension and retention right. 2ShotMedia may suspend its activities and may retain any moveable property which its has produced as per the instruction of the client, for as long as an invoice remains unpaid after expiration of its due date. A dispute over the invoice shall not constitute a valid reason to withhold or suspend payment.
No set-off. The client shall not be allowed to set-off any debt to 2ShotMedia against a claim that it may have against 2ShotMedia.
Joint and several liability. If there is more than one client for an assignment, each client shall be jointly and severally liable for the due performance of the obligations of the clients.
Liquidation, moratorium or bankruptcy. In the event of the liquidation or bankruptcy of the client or if the client requests suspension of payment, all claims of 2ShotMedia are immediately claimable.
Ownership and prohibition of use / ban of operations by default. All goods processed by 2ShotMedia on behalf of the client will become the intellectual property of 2ShotMedia as result of the processing. However, all goods delivered by 2ShotMedia to the client remain the property of 2ShotMedia until the client has fully met all its obligations to 2ShotMedia. As soon as the client is in default with regard to 2ShotMedia, the client and all its successors in title are immediately prohibited from using and / or sending the goods delivered by 2ShotMedia in any way until the client’s default has been eliminated.
Force majeure
Statutory regime applicable. The statutory regime for force majeure (as set forth in article 6:75 of the Dutch Civil Code) is applicable.
Supplements to the statutory regime. In addition to the statutory regime, the following applies.
Duty to inform of force majeure. 2ShotMedia, any third party instructed by it and/ or the client shall immediately (but in any case within two business days) notify the other party/parties, if an event of force majeure occurs.
Payments in case of force majeure. The client shall only have to pay 50% of the invoice, if the event of force majeure is on the side of 2ShotMedia (the remaining part being due after the event of force majeure shall have subsided). If the event of force majeure is on the side of the client, force majeure shall not be a valid reason to withhold or suspend payment.
Termination in case of prolonged force majeure. If an event of force majeure continues for more than three months, the party that has not invoked force majeure shall have the right to terminate this agreement, if the situation would justify termination.
Complaints and liability
Willful intent and gross negligence. 2ShotMedia shall only be liable in case of willful intent or gross negligence of 2ShotMedia or its executives (leidinggevenden).
Limitation of remaining liability. If and to the extent that 2ShotMedia shall be liable, its liability shall be limited to the contract value of the assignment or, in case of milestones, multi-part assignments or assignments with monthly lump sum installments, of the contract value of the relevant milestone, part of the assignment or one monthly lump sum respectively.
Exclusion of indirect damages. 2ShotMedia shall never be liable for any indirect damages, including (but not limited to) loss of revenue or profit.
Lapse of claim. A claim for damages must be filed forthwith (no more than 60 days after discovery) and shall lapse one year after the event that caused the damage.
Confidentiality
Duty of confidentiality. 2ShotMedia, any third party instructed by it and/ or the client shall not disclose the existence or content of this agreement to any third party, except to the extent such disclosure is required (a) for the execution of the assignment or (b) pursuant to any applicable legislation, exchange regulation or court order.
Marketing purposes. Notwithstanding the above, 2ShotMedia may, in consultation with the client, mention the transaction or assignment for marketing purposes.
Intellectual property
No transfer. 2ShotMedia remains the sole owner of any intellectual property right (on models, techniques and instruments) it uses for the execution of the assignment and shall become the sole owner of any such rights that it developed for or during the execution of the assignment.
Limited right to use. To the extent required for the execution of the assignment, the client shall have a limited right to use such intellectual property rights. Copying shall not be allowed.
Duration and termination
Duration. In principle, an agreement shall last for the duration of a project or until a specified goal shall have been reached, unless agreed otherwise.
Early termination. Neither 2ShotMedia nor the client shall be able to terminate an agreement early, except:
- if the other party structurally fails to meet its obligations under the agreement, despite having been given notice and having been granted a reasonable period to remedy its performancy;
- if an application is filed for the bankruptcy or suspension of payments of the other party; or
- if the relationship between parties has deteriorated to such an extent that continuation can be no longer be reasonably required.
Miscellaneous
Amendment or supplement. These general terms and conditions may be amended or supplemented by 2ShotMedia. In such case, 2ShotMedia shall send the client a set of the new general terms and conditions. The most recent terms and conditions shall be available on www.2ShotMedia.com
Consent for transfer. Neither the client nor 2ShotMedia may transfer all or part of its rights and obligations under an agreement or from these general terms and conditions without the prior written consent of the other party. The client hereby grants in advance its unconditional and irrevocable consent for the transfer by 2ShotMedia of all its rights and obligations under an agreement (including these general terms and conditions) in the context of a transfer of all its business activities to a third party.
Conversion. If a clause from the agreement or these general terms and conditions shall not or no longer be applicable, it shall be deemed to have been replaced by a valid and enforceable provision that most closely resembled the original provision.
Interpretation
If the text of a provision in the agreement or in these general terms and conditions is not sufficiently clear, the purpose of these general terms and conditions (protection of the legal position of 2ShotMedia) shall be leading. The contra proferentem rule shall not apply.
Additions. If the agreement and these general terms and conditions do not (or not fully) provide for a certain situation, the purpose of these general terms and conditions shall be leading.
No waiver. If 2ShotMedia does not strictly enforce a right under the agreement or under these general terms and conditions, this shall not imply a waiver of such right by 2ShotMedia.
Multiple languages, leading language. These general terms and conditions are available in multiple languages. The Dutch version is leading and legal concepts used or referred to in these general terms and conditions have the meaning attributed to them under Dutch law.
Disputes
Governing law. The laws of the Netherlands are applicable.
Choice of forum. Any dispute will be submitted to the competent court in Amsterdam, The Netherlands.