433 GENERAL Terms &
conditions
1. DEFINITIONS
1.1 In these general terms and conditions the following terms and meaning will be used, unless otherwise stated or clearly follows from context:
433 B.V.: the user of these general terms and conditions: 433 B.V. with its registered office at Rigakade 20, Amsterdam and registered at the Chamber of Commerce with number 24493739, hereinafter ‘service provider’;
Agreement: the agreement between service provider and client;
Client: the company or person that enters into agreement with service provider;
Party / Parties: the service provider and/or client;
Consumer: the client who is a natural person and doesn’t act within the context of their job or company;
Work: all proposals, quotations, pricing, advice, concepts, ideas, copy, information, files, designs, artwork, photography, videos, images and all other work created by service provider within the framework of the agreement;
Content: designs, text, images, logos, brand names, etc. that are provided by client and are used by service provider with in the framework of the agreement;
Employee: the person working for the service provider who is hired by the client.
2. GENERAL
2.1 These general terms and conditions apply to every proposal and/or quotation made by service provider and to every agreement between service provider and client.
2.2 These general terms and conditions also apply to additional assignments and following assignments from the client.
2.3 Deviations from these general terms and conditions are only valid when agreed upon by both parties via e-mail or in writing and are only applicable to the agreement they expressly refer to.
2.4 In case the client has general terms and conditions in place, they expressly don’t apply to this agreement.
2.5 Should any individual provision of this Agreement be or become invalid or unenforceable, this shall not affect the validity of the other provisions of this Agreement which shall remain in full force and effect. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision which accords most closely with the presumed intentions of the Parties and the intended purpose of the Agreement. The same shall apply if it is deemed a that there is a gap in this Agreement.
2.6 Should one of the two Parties tolerate a behaviour of the other Party which is in violation of these general terms and conditions, such tolerance or delay shall not constitute a waiver of the applicable provision(s) of these terms and conditions; affect the legal validity of the applicable provisions set out herein or give rise to a right to continue the behaviour which is in violation of the terms and conditions.
2.7 Service provider may modify these general terms and conditions at any time. The terms and conditions that apply are those that were available at the time of signing the agreement, unless client has agreed to the changes after the agreement came into effect.
3. Offer and quotations
3.1 Every offer and all quotations are valid until the date on the proposal.
3.2 The client guarantees that all information, specifications and demands of the production provided to the service provider are correct and complete.
3.3 Clear errors or mistakes in the offer, proposals, quotations, agreements or emails from the service provider or information on its website are not binding.
3.4 Everything that is shared within the context of the proposal and/or quotation, remains the property of service provider and should be returned by client at the first request of the service provider.
3.5 If service provider shares designs, images, text, ideas and concepts with the client before the agreement has been signed, client is not allowed to use, reproduce or publish the designs, images, text, ideas and concepts without prior written consent of the service provider. If the client does not abide this clause, the service provider holds all rights to charge a fair compensation.
4. Realisation of the agreement, cancellation and termination
4.1 The agreement is realised after the client has signed the proposal or quotation from the service provider and returned to the service provider or expressly agreed upon in an email to service provider.
4.2 A realised agreement can not be cancelled without costs. If the client cancels the agreement, 50% of the quotation or all incurred cost by the service provider, whichever is higher, will be charged to the client. Once the service provider has started with the work related to the agreement, the agreement can not be cancelled anymore.
4.3 If parties have entered into an agreement for a fixed term, the agreement can not be cancelled unless both parties have agreed differently. When both parties agree upon cancellation, the cancellation period that is mentioned in the agreement should be taken into account.
5. Execution of the agreement
5.1 Service provider shall perform the activities to the best of her abilities in a professional manner.
5.2 Service provider holds the right to hire third parties for certain activities without notifying the client.
5.3 If it is agreed upon that a certain person will perform the activities, the service provider holds the right to replace this person with one or more persons with the same qualifications.
5.4 Service provider shall never be obligated to perform activities that are against the law, against rights of third parties or goes against the public good.
5.5 Service provider can not guarantee that performing of the activities will lead to the desired results, such as an increase in profit and/or brand awareness.
5.6 If the service provider collaborates with a third party as assigned by the client, the service provider can not be held liable for the acts and/or negligence of this third party.
6. Delivery time
6.1 A delivery time issued by the service provider is intended as an indication and not as a binding time.
6.2 In case the agreed delivery time is not met because of a situation that cannot be proven to be its fault or intention, as described in clause 18 of these general terms and conditions, the term shall be automatically expended with the period of delay that was caused by this situation.
6.3 If the delivery time is delayed the client has no right whatsoever to claim damages.
6.4 If service provider suspects they can not honour the agreed delivery time they shall promptly inform the client.
7. Client obligations
7.1 The client ensures that all information and facilities, which are required by the service provider to fulfil its work, is shared or made available in a timely manner.
7.2 The client shall cooperate with the service provider.
7.3 The client guarantees that all information, specifications and demands of the production provided to the service provider are correct and complete, even if they are provided by third parties. The client waives all right to claim damages that are the consequence of wrong information.
7.4 If the production is set (partly) on location of the client, client shall make reasonable effort to protect the employees of the service provider from harm.
7.5 The client shall always properly share information that could be important to the work of the service provider.
7.6 If the service provider has agreed to perform specific activities, service provider is responsible to perform said activities in a timely manner. If this doesn’t happen within the agreed timeframe, service provider is liable.
7.7 The client is responsible for reproducing or publishing content of which the rights are held by third parties, unless otherwise agreed with the service provider.
7.8 The client is not allowed to give service provider an assignment that infringe on rights of third parties, like, but not limited to, copyrights, trademarks, logos, portrait rights or other intellectual property of third parties. If service provider notes or suspects that the production for the client infringes upon third parties’ rights, the service provider holds all rights to cancel the agreement and all expenses and costs up until that moment will be charged to client. Service provider is not obliged to check whether the production required by the client infringes upon third party rights or is against the law.
7.9 If the production is delayed because of negligence or actions of the client, the service provider will notify the client and the service provider can not be hold accountable for any damages that are consequences of the delay.
7.10 If the client knows or suspects they can not deliver on their promises, they shall promptly inform the service provider.
7.11 If the client doesn’t meet their obligations towards the service provider, acts against the law or acts unlawfully towards the service provider, the client is liable for any and all damages of the service provider. The service provider holds the right to suspend production or dissolve the agreement. Damages shall mean loss of profit, among other things.
8. Hiring of staff
8.1 The client shall ensure that the location(s) where the equipment with which, and the circumstances in which, the employee must perform the work are safe and comply with all legal requirements.
8.2 If the employee can not perform the work due to illness or other circumstances, the client will be notified by phone as soon as possible. In such case, the service provider shall do everything within its power to replace the employee for another employee with the same qualifications as soon as possible. The service provider can not guarantee it will find a suitable replacement.
8.3 If certain guidelines and/or code of conducts apply within the organisation of the client, the client must inform the employee accordingly.
8.4 The employee works under the direction and supervision of the client. The client takes the same care as he would with his own employees. The client declares he is aware of the fact he is classified as an employer in the Working Conditions Act.
8.5 If the employee is involved in an accident while working for the client, the client is obligated to inform labour inspectorate and the service provider, stating the time, nature of the accident and the consequences thereof.
8.6 The client will behave as befits a good employer in accordance with the obligations for an employer arising from the law with regards to an employee. The client indemnifies the service provider against any claims by the employee with regards to acts or omissions of the client in violation of the aforementioned, as well as against any claims from third parties with regards to damage caused by the employee’s negligence or actions during the work.
8.7 If, during the performance of his work, the employee has suffered such injury that death is the result of this, the client is obligated, in accordance with article 6:108 of the Dutch Civil Code, to compensate the persons referred to in that article for the damage caused.
8.8 The client is obligated to take out an adequate and comprehensive liability insurance for all direct and indirect damage as described in this clause.
8.9 The client shall treat all personal data of the employee made available to him as confidential and shall process this personal data in accordance with the General Data Protection Regulation.
9. Making equipment available
9.1 The client is obligated to do what is necessary to keep the available equipment in good conditions and to prevent damage, disappearance and destruction.
9.2 The client is liable for all damages to equipment that occur when the client holds the equipment.
9.3 The client is not allowed to alter, adjust or modify the available equipment.
9.4 When the agreement ends, all available equipment shall in good condition, clean, complete and undamaged be handed over to the service provider.
9.5 In cases of overdue payment, liquidation, bankruptcy or a moratorium of payment, the client will immediately notify the service provider and notify the debt collector or curator of the ownership rights of the service provider.
10. Adjustments to the agreement
10.1 If it turns out during the term of the agreement that, to correctly perform the activities, it is necessary to change or complement the activities, both parties shall adjust the agreement in good faith consultation.
10.2 If both parties agree to adjusting the agreement, the completion date can be changed. Service provider will notify the client as soon as possible of the change of completion date.
10.3 If the adjustments or complements to the agreement have any financial and/or qualitative consequences, the service provider will inform the client in advance.
10.4 If a fixed fee has been agreed upon, the service provider will indicate how the adjustments or complements to the agreement affect the fixed fee.
10.5 Delay of the performance of the activities as agreed upon in the agreement shall be made known by the client to the service provider by written letter or email. All extra costs that arise from the delay, like cancellation fees of third parties and reserved production capacity, shall be charged to the client.
11. Prices
11.1 All prices are excluding sales tax (Dutch VAT).
11.2 Service provider can increase the agreed upon prices when, while performing the activities, it turns out the previously expected amount of work is much higher and this can not be accounted to the service provider and can not reasonably be expected of the service provider to perform the activities for the original agreed upon prices. The client will be notified as soon as possible by the service provider of such increase.
11.3 Overtime shall be charged as specified in the agreement.
11.4 If, after confirmation of the agreement, the prices of materials, raw products or semi-manufactured goods, salaries, premiums of any nature, carriage, taxes, currencies, exchange rates and/or other factors which affect the price of the goods or services, are subject to change which reasonably was not, or could not have been foreseen by service provider, then service provider is entitled to adjust the prices accordingly.
12. Music
12.1 Royalties have to be paid to Buma/Stemra for music used in the production. These copyrights are additional costs that are not part of the quotation, unless expressly specified. The amount of the royalties are determined by Buma/Stemra. The client is responsible for the payment of these royalties.
13. Payment
13.1 All invoices shall be paid by client in the manner indicated on the invoice. If there are no payment conditions specified, the client shall pay the invoice within fourteen (14) working days after the invoice date.
13.2 If the client has to pay a part of the offered amount and does not do so in a timely manner, the service provider holds the right to suspend the agreement until the initial payment has been made. The client shall be notified of such suspension in writing or by email. Service provider can not be hold liable for possible damages that are a consequence of the suspension.
13.3 If the client has not paid the invoice within the specified period, the client is in default. The client is liable from the payment date onwards to pay interest on the overdue amount with a minimum of the legally binding interest rate, in which part of a month will be calculated as a complete month.
13.4 In cases of overdue payment, liquidation, bankruptcy or a moratorium of payment on the part of the client, all payment obligations by the client to service provider will be demanded immediately.
13.5 Every payment by the client shall be to pay the owed rent, followed by the costs related to the claims. Only after these costs are covered, a payment by the client shall count to the invoice that has the earliest invoice date.
13.6 Service provider can hold documents, files, and other generated materials in the context of the agreement until the client has paid all outstanding invoices.
14. Intellectual property rights
14.1 The intellectual property rights with regards to the content rest with the service provider or its licensors. The client grants the service provider a non-transferable license to the content for the realisation of the production.
14.2 The copyright, as well as all other intellectual property rights with regards to both provisional and final (designs of) work rest with the service provider. The client is not permitted to publish or reproduce the work without the service provider’s prior permission. The client must respect the copyrights of the service provider at all times. If the client acts contrary to the copyrights of the service provider, the client is liable for all damages that the service provider incurs as a result. Damages include a loss of profit, among other things.
14.3 The copyrights to the delivered production are transferred to the client after the client has met all its financial obligations which are related to the production. As long as the client has not paid for the production, the client is not permitted to publish and/or reproduce the production.
14.4 By giving an order to publish or reproduce work protected by the copyright act or any other legislation in the field of intellectual property, which has been made available by or on behalf of the client, the client declares that no infringement will be made upon statutory provisions and/or protected rights of third parties and it indemnifies the service provider against claims in respect of third parties or for the direct and indirect consequences, both financial and otherwise, arising from the publication or reproduction.
14.5 The service provider states its name and/or logo and its role in the credits of the production.
14.6 Article 14.5 is not applicable if the nature of the production does not lend itself to this.
14.7 The service provider is entitled to place the name and/or logo of the client on its website as being a client of the service provider.
14.8 The service provider reserves the right to use the production to promote the service provider, including the placing of (part of) the production on its website and social media channels.
15. Researching rights
15.1 Researching the trademarks, copyrights, intellectual property rights or portrait rights of third parties is not part of the agreement. Researching possible protections for the client are also not a part of the agreement.
15.2 The client is responsible for making sure the content does not infringe upon trademarks, copyrights, portrait rights or other intellectual property rights of third parties. If publishing the production infringes upon trademarks, copyrights, portrait rights or other intellectual property rights of third parties, the risk and potential claims are born by the client.
16. Complaints
16.1 Complaints about the activities shall be expressed by client to the service provider as soon as possible. The complaint should be as detailed as possible, to ensure the service provider can properly respond to the complaint.
16.2 After filing the complaint, the client shall give the service provider the opportunity to research the validity of the complaint and, if necessary, give the opportunity to perform the activities as agreed upon. The fact that the service provider researches the complaint’s validity does in no way imply that the activities are deficient.
16.3 If it is not possible or useful to perform the activities, the service provider is only liable within the limits as set out in clause 17 of these general terms and conditions.
16.4 Complaints do not suspend the payment obligation of the client.
17. Liability
17.1 Service provider can not be held liable for any damage that is a direct or indirect consequence of:
The result of circumstances which cannot be proven to be its fault or intention, as described in clause 18 of these general terms and conditions;
Some form of negligence of the client, its employees and/or other persons who are hired by the client.
17.2 The client is always responsible for the correctness and completeness of the information provided by the client. Service provider can not be held liable for any damage or claims that is a consequence of inadequate supply of information or materials by the client.
17.3 The client accepts that the production can be delayed because of weather and unexpected technical problems. Service provider is never liable for any of such delays.
17.4 Publishing the by service provider created production is on client’s own risk. Service provider can not be held liable for any negative publicity arising from publishing the production.
17.5 Service provider is not liable for damages or loss of data due to technical errors when sending the data.
17.6 Service provider is not liable for any consequential damages. Consequential damages are, but are not limited to: profit loss, potential losses, missed savings, costs that are incurred to prevent or ascertain consequential damages, loss of data, costs for delay, reputation damages and fines.
17.7 If the service provider is liable for any damages, the liability is expressly limited to the amount that service provider’s insurers pay out. If, for any reason whatsoever, no payment is made pursuant to a decision by service provider's insurers, the liability is expressly limited to the total amount of the invoice in question.
17.8 The client indemnifies service provider against any compensation which service provider might incur as the result of agreements between third parties which relate to the goods supplied by service provider.
17.9 Any rights to claims and other rights of the client expire one (1) year after the moment a situation occurs from which client can use these rights.
18. Force majeure (unaccountable filings in performing; ‘Acts of God’)
18.1 An event of Force Majeure occurs when the service provider is prevented from complying with any of its obligations under the agreement as a consequence of: strikes, internet communication disruptions, virus infection or computer breach by third parties, power outage, extreme weather, natural disasters, traffic disruptions, war, threats of war, terrorism, theft, fire, illness of one or more employees, defects to equipment that occur during the performance of the activities under the agreement, government measures and errors in software or online services by third parties.
18.2 An event of Force Majeure is also a non-accountable failing of a third party that is hired by the service provider.
18.3 Service provider is entitled to if an event of Force Majeure arises after the delivery date of the agreement.
18.4 In the event of a Force Majeure, the service provider will notify the client as soon as possible.
19. Suspension and dissolving of the agreement
19.1 Service provider is entitled to suspend the performance of activities or dissolve the agreement when:
the employee is exposed to a dangerous situation and/or a dangerous situation seems to occur during the performance of activities;
the client has not completely met his obligations and the client has not responded to the notice of default. If compliance is permanently impossible, a notice of default may not be required;
after entering into the agreement, the service provider has good reasons to believe that the client will not meet its obligations. In case of good reasons to believe the client will only partially or not properly meet its obligations, a suspension is only allowed as far as the shortcoming justifies;
a suspension of payment has been granted to the client;
the client goes bankrupt;
there is a legal debt rescheduling arrangement in place with the client;
the client’s company is liquidated or terminated.
19.2 If the agreement is dissolved, the claims by the service provider will be made immediately.
19.3 Service provider is not liable for any damages the client incurs because of dissolving the agreement by the service provider or because of suspension of activities by the service provider.
19.4 Service provider holds the right to claim damages.
20. Confidentiality
20.1 During the term of this Agreement and after termination thereof, the Parties shall not disclose any confidential information relating to the products, or other matters of the Parties which are of a confidential nature nor give any third parties access to such information nor divulge the contents of this Agreement.
20.2 If service provider is obligated to provide confidential information to third parties designated by law or the competent court on the basis of a legal provision or court decision and the service provider can not rely on a law in this regard of change, the service provider is not obligated to pay any damages and the client is not entitled to terminate the agreement.
21. Applicable rights and choice of forum
21.1 The Agreement shall be governed and interpreted as to all matters in connection herewith, including validity, construction and performance, by and under the laws of The Netherlands.
21.2 All disputes pursuant to or connected with the Agreement shall be submitted to the competent Court in Amsterdam, The Netherlands.
