GENERAL TERMS AND CONDITIONS
Article 1 Definitions
In these General Terms and Conditions is being understood under the concepts mentioned hereafter the meaning that is described thereafter:
FC Walvisch: the private limited liability company under the laws of the Netherlands, FC Walvisch B.V., having its legal seat in Amsterdam, the Netherlands;
Principal: the natural person, legal person or form or cooperation to who FC Walvisch issues an offer and/or with who FC Walvisch concludes an agreement regarding the delivery of a Performance;
Performance: the services, which whether or not on the basis of the agreement concluded between FC Walvisch and the Principal, shall be or have been delivered by or on behalf of FC Walvisch to the Principal, as well as all by FC Walvisch advices given regarding this matter.
Article 2 Applicability
These General Terms and Conditions are applicable to all offers of FC Walvisch, the Performances executed by it, as well as to all agreements concluded between it and the Principal.
Applicability of other, whether or not used by the Principal, general or specific terms and conditions is explicitly excluded, unless the Applicability of these has been accepted by FC Walvisch in writing.
Article 3 Offers
1. All offers of FC Walvisch are non-binding unless these contain a term for acceptation, are based on the data provided at the application and on the prices and wages in force on the date of the offer.
Article 4 Option
Upon request of Principal FC Walvisch can grant Principal an option for a date or several dates on which the Performance shall be executed.
An option granted to Principal is valid:
during two weeks if the option has been placed longer than four weeks prior to the reserved date/dates;
during one week if the option is placed between one and four weeks prior to the reserved date/data;
during 48 hours if the option is placed within one week prior to the reserved date/data.
If another Principal of FC Walvisch wishes to make a definitive reservation for the date/dates for which FC Walvisch has granted an option to Principal, then FC Walvisch is authorised to shorten the validity period mentioned in section 2 of this article to 24 hours after it has notified Principal hereof.
If the option has not been confirmed or extended within the validity period in writing by Principal to FC Walvisch, then the option is forfeited and FC Walvisch cannot warrant the availability of the date/dates anymore.
If an option is confirmed by Principal, then FC Walvisch has the right to recall the option within 24 hours after receipt of that confirmation.
Article 5 Agreement
An agreement between FC Walvisch and the Principal is concluded if Principal within the validity period has confirmed an option to FC Walvisch, or if FC Walvisch has started with the execution of the agreement.
After the conclusion of the agreement, stated changes and deviating or additional agreements made are only binding for FC Walvisch if these have been confirmed by it in writing to the Principal.
All changes of the agreement, which are introduced by FC Walvisch and the Principal in mutual consent or are caused because the data known at the time of the conclusion of the agreement, are not in accordance with the data that become apparent at the time of the execution, will be regarded as extra and lesser work, which will be calculated according to fairness and, if possible, be charged together with the principal amount.
It is not permitted for the Principal to assign without permission of FC Walvisch the rights deriving for him from the agreement on delivery (in part) to third parties.
Article 6 Price (changes)
Principal is liable to pay to FC Walvisch a fee as well as compensation of made costs in accordance with the rates, calculation methods and ways of working customary at FC Walvisch. The due fee will be invoiced weekly, on the basis of actual hours spent increased with the made costs.
If at the conclusion of the agreement a price has been agreed, then this price is based on the underlying offer or on the data known at the time of the conclusion, and are exclusive of VAT and other levies by the government, as well as shipping and possible transport and insurance costs, unless agreed explicitly differently.
Article 7 Payment
The Principal commits to satisfy all notes and invoices that he receives from FC Walvisch, within the period stated on the invoice, without any deduction and without suspension because of alleged default.
In case of default, liquidation, bankruptcy or suspension of payment of the Principal his (payment) obligations shall be payable upon demand immediately. Also the (payment) obligations of the Principal will become payable upon demand immediately in case circumstances come to the knowledge of FC Walvisch that give it good grounds to fear that the Principal is or shall not be able to comply with his (payment) obligations.
Payment needs to take place in the currency in which invoicing took place, by means of a bank transfer. In case of cash payment the Principal is required to ensure that for this a receipt is issued by FC Walvisch.
In case of exceeding of a payment term set on the invoice, the Principal is, without that a notification of default is required thereto, liable to pay from the due date to the day of payment a delay interest equal to the interest by law (for trade transactions), with a minimum of 9% per year.
Also the Principal is because of the mere delay from the due date liable to pay damages to FC Walvisch, which is set at a minimum 15% of the principal amount.
Payments made by the counterparty always serve in the first place for the satisfaction of all due interests, compensations for damage and costs and subsequently of due invoices that are outstanding for the longest time, even if the Principal states that the payment relates to a later invoice.
Article 8 Data and information
Principal has an independent obligation to provide all information that is relevant for the execution of the agreement by FC Walvisch and furthermore Principal is required to make available all data, documents and information which FC Walvisch requires in accordance with its assessment for the correct execution of the concluded agreement, timely and in the desired form and in the desired manner, as indicated by FC Walvisch, to it (see delivery specifications on www.fcwalvisch.com).
FC Walvisch has the right to suspend the execution of the agreement till the moment that Principal has complied with the obligation mentioned in section 1 of this article. All costs which derive for FC Walvisch from the suspension shall be compensated by Principal to it.
Article 9 Execution agreement
1. FC Walvisch shall execute the agreement to the best of its insights and abilities and in accordance with the requirements of good expertise.
Article 10 Force Majeure
In case of Force Majeure FC Walvisch is authorised to suspend the execution of the agreement for as long as the circumstance that causes the Force Majeure no longer exists.
If the period of Force Majeure lasts longer than 3 months as well as in case it is established that the Force Majeure is of a permanent nature, FC Walvisch and the Principal can make an arrangement about the dissolution of the agreement and the related consequences.
Of Force Majeure shall in any case be an instance if this is imputable to delay by or default by the suppliers, transport issues, fire, excessive absence because of illness, enterprise disruptions and work strikes.
FC Walvisch is authorised to request payment for the Performance that has been executed in the execution of the concerned agreement, before the circumstance preventing compliance, emerged.
FC Walvisch reserves the right to claim Force Majeure even if the causing circumstance emerges after the Performance should have been executed by it.
Article 11 Delivery
The delivery date stated by FC Walvisch or agreed is informative, by approximation and shall therefore never to be regarded as a fatal term, unless agreed explicitly differently in writing. In case of exceeding of the stated delivery date, FC Walvisch should have been declared in writing by registered mail by the Principal before being in default towards him.
As longs as FC Walvisch is not in default towards the Principal, it is liable to compensation of the damage emerged at the Principal, which for him possibly might derive from the exceeding of the stated delivery date.
It is permitted for FC Walvisch to deliver the Performance in parts, provided that to these partial deliveries an independent value can be attributed.
If the Performance after the expiry of the delivery date has not been taken off by the Principal, then this will be stored for his availability by FC Walvisch, for the account and risk of the Principal.
Article 12 Inspection and reclamation
The Principal is required to (have) inspect(ed) the Performance upon delivery and to verify whether the delivered complies with what has been agreed.
Incorrectness, incompleteness and/or defects in the Performance, which are/can be established upon receipt by the Principal, should immediately be brought to the knowledge of FC Walvisch.
Defects that cannot be established immediately are required to be reported by the Principal within 8 working days after discovery but no later than within 30 days after delivery of the Performance in writing to FC Walvisch.
The nom-compliance of the stipulations of this article results in the forfeit of any claim by the Principal.
Article 13 Intellectual property and license
The intellectual property rights of the Performance, deriving from the agreement and executed by FC Walvisch, remain at all times with FC Walvisch, unless agreed explicitly differently.
Should in deviation of the previous section in writing it have been agreed differently, then the intellectual property right is only transferred if the Principal has complied fully with his obligations towards FC Walvisch.
FC Walvisch is upon the execution of the agreement not required to execute an investigation into a possible violation of intellectual property rights belonging to third parties.
The Principal safeguards FC Walvisch from all claims by third parties that derive from violation of the intellectual property rights belonging to third parties.
The introduction of changes by Principal in the Performance executed by FC Walvisch is not permitted then after prior permission in writing by FC Walvisch.
Principal obtains from FC Walvisch a license for the use of the Performance executed by FC Walvisch to the extent that it concerns publication and multiplication in accordance with the purpose and the use as agreed upon the conclusion of the agreement.
If for the benefit of (a part of) the Performance use is made of the intellectual property rights of third parties (“stock music” or “voices of third parties”), then Principal shall arrange himself for the obtaining of the licences for these intellectual property rights.
The license referred to in section 6 is provided by FC Walvisch for the duration of one year after delivery, or, if use is made of intellectual property rights of third parties as referred to in section 7 of this article, for the duration of the license provided by the third party if that is shorter.
The compensation for the license provided by FC Walvisch is included in the fee with regard to the agreed purpose and the agreed use.
A waiver by the Principal of the use of the Performance does not give the Principal a right to reduction of the fee of FC Walvisch.
Article 14 Notification duty
The Principal is required to notify FC Walvisch immediately and fully as soon as he gets the suspicion or notices that he and/or third parties experience or shall experience any damage or (further) disadvantage by making use of the Performance.
In addition to his own duty of care to prevent and limit damage, the Principal is required to give FC Walvisch full opportunity to prevent and/or limit imminent damage and/or any disadvantage.
The Principal is required to safeguard FC Walvisch from claims of third party(ies), which emerge by making use of the Performance by the Principal.
Article 15 Provision of surety
FC Walvisch is authorised to request surety at or after the conclusion of the agreement, before performing (further), from the Principal that he will comply within a reasonable term with his (present and future) obligations towards FC Walvisch.
The Principal is at all times obliged to provide surety in case of his bankruptcy, suspension of payment, the closure or liquidation of his enterprise or because the Principal by seizure, attachment or otherwise looses the disposition over the entirety of his entire or partial capital.
Article 16 Right of suspension
In case the Principal does not comply with his obligations towards FC Walvisch, then FC Walvisch has, without notification of default, the right to suspend the execution of the agreement from his sited until compliance by the Principal has taken place.
The right to suspend the execution of the agreement from its side is also available to FC Walvisch in case circumstances come to its knowledge which gives it good grounds to fear that the Principal shall not comply with his obligations towards FC Walvisch.
Article 17 Dissolution
In case that the Principal comes short in the compliance with the agreement, FC Walvisch has the right to realise the entire or partial dissolution of the agreement by a written declaration for that purpose or by a court ruling.
If the agreement is dissolved in its entirety or in part, then the Principal is required to compensate the positive contract interest of FC Walvisch.
Towards the Principal FC Walvisch is, making a legal use of its right to realise the entire or partial dissolution of the agreement, never liable to compensate the damage deriving here from for the Principal.
In case circumstances arise with regard to persons and/or material of which FC Walvisch makes or usually makes use during the execution of the agreement, which are of such nature that the execution of the agreement becomes impossible or so burdening and/or disproportionally costly, that the compliance with the agreement cannot be demanded anymore in reasonableness, then FC Walvisch is authorised to dissolve the agreement.
Article 18 Changing of the General Terms and Conditions
1. FC Walvisch is authorised to introduce changes in these General Terms and Conditions. FC Walvisch shall publish the changed General Terms and Conditions on its website www.fcwalvisch.com and notify Principal of the change. The changes come into force on the time thereby announced. If no time for coming into force has been communicated, then the changes towards the Principal come into force as soon as the change has been communicated to him.
Article 19 Confidentiality
FC Walvisch is except for obligations imposed by the law to disclose certain data, obliged to confidentiality of confidential information towards third parties that have not been involved by it in the execution of the agreement.
It shall however be permitted for FC Walvisch to use the name of the Principal as well as the Performances executed for him for the benefit of promotional activities.
Except for the obligations set by the laws for him, it is not permitted for the Principal to provide confidential information about FC Walvisch to third parties.
Article 20 Liability
All Performances executed by FC Walvisch take place to the best of the abilities and are based on the known data, the established facts and the given circumstances.
Both the follow-up and/or the making use of the Performances executed by FC Walvisch, on the basis of the agreement, by the Principal takes place entirely for the risk of the latter.
FC Walvisch is towards the Principal not liable for damage and/or any disadvantage which for the Principal derives from the follow-up or the making use of the Performance executed by FC Walvisch, on the basis of the agreement, or which emerges because either the Principal or FC Walvisch dissolves the agreement or cancels the commission to the fulfilment of the given commission.
Also FC Walvisch is not liable for the person who it has put in its place for the execution of the agreement or the person whose assistance it has sought for the execution of the agreement.
Also the Principal can make no claim towards FC Walvisch after the Principal, or another upon his commission, has taken the Performance into use or treated or processed it.
Should, in accordance with the stipulations in the previous sections of this article, prove that the emerged damage and/or any disadvantage come(s) or should come for the account of FC Walvisch, then the total liability of FC Walvisch shall in no case be higher than twice the fee invoiced for the underlying Performance.
In no case however is FC Walvisch liable for indirect damage in the form of missed turnover, missed savings, damage by enterprise stagnation and/or other consequential damage.
If FC Walvisch regarding damage and/or any disadvantage, for which it is not liable on the basis of the agreement with the Principal and/or these General Terms and Conditions, is held liable by a third party, then the Principal shall safeguard it fully in that matter and compensate FC Walvisch for everything it has to pay to this third party.
The burden of proof with regard to any alleged liability of FC Walvisch rests on the Principal, which is accepted by him.
Article 21 Disputes
The laws of the Netherlands exclusively govern all offers made, commission and agreements concluded under these General Terms and Conditions.
The competent court in Amsterdam, the Netherlands, is competent with the exclusion of any other court to take knowledge of all disputes arisen further to transactions, offers, commissions and agreements, to which these General Terms and Conditions are applicable.