ARTICLE 1. | DEFINITIONS
In these general terms and conditions, the following terms have the following meanings when the first letter is capitalised.
- KLCK: The user of these general terms and conditions, having its registered office at Gietijzerstraat 34, 3534 AV in Utrecht, the Netherlands, registered in the Dutch Trade Register under Chamber of Commerce number 59251425.
- Client: any legal entity or natural person acting in the exercise of a profession or business, with whom KLCK has concluded or intends to conclude an Agreement.
- Parties: KLCK and the Client jointly.
- Agreement: any agreement between the Parties by which KLCK commits itself towards the Client to perform Services.
- Services: the services to be provided by or on behalf of KLCK under the Agreement, which may include, but are not limited to, the creation of one or more Productions, devising creative concepts for videos, film and photos, designing (advertising) campaigns, and providing advice with regard to videos, film and photos.
- Production: any video, film or photo to be created and supplied by KLCK under the Agreement.
- In Writing: communication in writing, communication by e-mail, or any other means of communication which, given the state of the art and generally accepted practice, can be regarded as equivalent to this.
ARTICLE 2. | GENERAL PROVISIONS
- These general terms and conditions apply to each quote provided by KLCK and to every Agreement.
- These general terms and conditions also apply to Agreements that are executed by third parties on behalf of KLCK.
- The applicability of any general terms and conditions of the Client is expressly rejected.
- Any deviation from these general terms and conditions shall be explicitly agreed upon In Writing, such as by means of the quote provided by KLCK and accepted by the Client. If and insofar as that which has been explicitly agreed upon In Writing by the Parties differs from that which is stated in these general terms and conditions, that which has been explicitly agreed upon In Writing by the Parties shall apply.
- The nullity or invalidity of one or more of the clauses in these general terms and conditions or the Agreement as such, shall not affect the validity of the remaining clauses. In such a case, the Parties are obliged to consult with each other in order to reach a substitute arrangement with regard to the affected clause. The purpose and tenor of the original clause shall be upheld as much as possible.
- In case KLCK does not always require strict compliance with these general terms and conditions, this shall not mean that the provisions of these general terms and conditions are not applicable, or that KLCK would lose the right to require strict compliance with the provisions of these general terms and conditions in other cases.
ARTICLE 3. | QUOTES AND CONCLUSION OF AGREEMENTS
- Each quote provided by KLCK is without obligation, also if a deadline for acceptance is stated in the quote. Any quote provided by KLCK may still be revoked by KLCK immediately, or at least as soon as possible after its acceptance by the Client.
- The Client cannot derive any rights from a quote provided by KLCK if this quote contains an obvious mistake or error, or from a quote from KLCK which is based on incorrect or incomplete information supplied by the Client.
- Without prejudice to the provisions of paragraph 1, each Agreement is concluded at the moment the Client accepts KLCK’s quote in the manner indicated by KLCK. If the Client’s acceptance deviates from the offer in the quote, the Agreement will not be effected in accordance with this deviating acceptance, unless KLCK indicates otherwise.
ARTICLE 4. | CANCELLATION AND RESCHEDULING BY THE CLIENT
- If the Client cancels the Agreement after it has been concluded, the following cancellation policy applies:
- In the event of cancellation up to the 7th day (exclusive) before the (first) day of filming, the Client is obliged to pay proportionally for any Services already provided and any expenses incurred up to the cancellation;
- In the event of cancellation as from the 7th day (inclusive) before the (first) day of filming, the Client owes cancellation costs of 50% of the agreed total price.
2. If the Client requests a postponement of the (first) shooting day within seven days before this specific shooting day, KLCK is entitled to invoice 50% of the total amount owed by the Client, unless such an advance payment has already been made. For each subsequent postponement requested by the Client, KLCK is entitled to charge an expenses fee, which is 10% of the agreed total price.
ARTICLE 5. | THIRD PARTIES
- KLCK has the right to subcontract the execution of the Services in whole or in part to third parties and thus to involve third parties in the execution of the Agreement. Except insofar as the law imperatively prohibits this under the given circumstances, KLCK shall not be liable for any damages resulting from the actions or omissions of third parties engaged by KLCK in the execution of the Agreement.
- These general terms and conditions have also been drawn up on behalf of any third parties engaged by KLCK in the performance of the Agreement. They may also invoke the provisions of these general terms and conditions vis-à-vis the Client as if they were a party to the Agreement instead of KLCK.
- Articles 7:404 and 7:407 (2) of the Dutch Civil Code do not apply to the Agreement.
ARTICLE 6. | OBLIGATIONS OF THE CLIENT
- The Client is responsible for the timely provision to KLCK of all information that is reasonably relevant for the set up and execution of the Agreement. The Client guarantees the accuracy and completeness of this information.
- Furthermore, the Client shall always cooperate with KLCK as required for the execution of the Agreement. The Client shall take all reasonable measures, as well as those expressly agreed, to optimise the execution of the Agreement. Furthermore, the Client must inform KLCK as soon as possible of all facts and circumstances which may arise, whether or not after the Agreement has been concluded, and of which it is reasonably known that they affect the timely and/or proper execution of the Agreement.
- If it has been agreed that employees of or managers within the organisation of the Client, or any third parties engaged by the Client, will be involved in the execution of the Agreement, the Client will ensure that these persons are available to KLCK on time and that they will cooperate fully in order to enable the proper execution of the Agreement.
- If and insofar as the Services are to be provided on the Client’s premises or at another location designated by the Client and agreed between the Parties, the Client will ensure that KLCK can perform the Agreement in a timely manner and that the place of execution is suitable for this purpose. Furthermore, in that case KLCK shall be able to use free of charge all the items and facilities that are present and reasonably required by KLCK.
- If the Client fails to fulfil its obligations as referred to in the above paragraphs of this article, KLCK shall be entitled, without prejudice to the provisions of the rest of these general terms and conditions, to charge the Client for any extra costs incurred and/or any damages suffered as a result.
ARTICLE 7. | DEADLINES
- All deadlines for execution and delivery specified by KLCK to which it has committed itself vis-à-vis the Client are to be considered as indicative and non-fatal only. KLCK shall not be in default until the Client has provided KLCK with a notice of default In Writing, stating a reasonable period within which KLCK can still fulfil the Agreement, and fulfilment has still not been effected upon expiry of the latter period.
- If KLCK is in default, the Client shall be entitled to dissolve that part of the Contract to which the default relates, but shall never be entitled to any additional compensation.
ARTICLE 8. | COMPLAINTS AND CORRECTIONS
- Without prejudice to what has been explicitly agreed between the Parties in this regard, the agreed Production shall be produced according to KLCK’s own technical and creative insight.
- A Production is based on the specifications agreed beforehand between the Parties, for instance on the basis of ideas exchanged and/or a predetermined script. The Client is entitled to two correction rounds, exclusively concerning elements that can still reasonably be edited after the recording, such as concerning the technical editing, but only to the extent that it has not been explicitly agreed beforehand that these editable elements would be present in the Production. Any corrections to a Production required by the Client that fall outside the scope of the two correction rounds are not included in the agreed price and, to the extent that corrections are possible, will be performed at an additional price to be agreed.
- Unless expressly agreed otherwise, the Production will be delivered electronically, in a suitable manner to be determined by KLCK, usually by means of WeTransfer or Frame.io. The Client is responsible for making a backup of the Production. KLCK does not accept any liability in case the Production is lost.
- Upon delivery of (the concept of) the Production, the Client is to check within seven days that KLCK has properly performed the Agreement or whether the Client requires corrections to the concept, and must inform KLCK thereof within this term, failure to do so will be deemed to mean that the Production complies with the Agreement or that the Client has approved the Production. In that case, the Production will be regarded as definitive. If the Client does not complain in time or does not request a correction of the Production in time, KLCK shall not be under any obligation whatsoever as a result of such a complaint or such a request by the Client.
- Any deviations between the finalised Production, on the one hand, and what has been explicitly agreed, on the other hand, cannot be a reason for rejection, compensation, rescission of the Agreement or claims for damages, if such deviations are of minor importance. Deviations that, taking all circumstances into account, within reason have no or only a minor influence on the utility value of the Production, will always be considered deviations of minor importance. However, at the request of the Client and under the conditions stipulated for this purpose, the free correction rounds will be performed or, if this can reasonably be demanded of KLCK, corrections will be made at an additional price to be agreed upon.
- With regard to Services other than making a Production, the Client is obliged to notify KLCK orally of any complaint concerning the performance of the Services immediately after noticing, or at least reasonably being able to notice, the shortcoming assumed by the Client, and then to confirm this In Writing to KLCK within two working days, accurately stating the grounds for the complaint.
- Any complaints regarding the amount of the invoice must be submitted to KLCK In Writing, stating reasons, within seven days of the invoice date, failure to do so will result in the invoice amount being deemed to be final.
ARTICLE 9. | FORCE MAJEURE
- KLCK shall not be bound to fulfil any obligations arising from the Agreement if and for as long as it is prevented from doing so by circumstances for which it cannot be held accountable by virtue of the law, a juridical act or generally accepted legal practice (force majeure). Force majeure means any circumstance beyond the control of KLCK or any unforeseeable circumstance as a result of which the (timely) execution of the Agreement is not reasonably possible.
- KLCK reserves the right to invoke force majeure also if the reason for the force majeure arises after the service should have been delivered.
- Only if the situation of force majeure renders fulfilment of the Agreement permanently impossible or continues for more than three months, shall the Parties be entitled to dissolve the Agreement with immediate effect, without judicial intervention.
- If, when the situation of force majeure arises, KLCK has already partially fulfilled its obligations or can only partially fulfil its obligations, KLCK will be entitled to separately invoice the part of the Agreement already performed or the part that can be executed as if it concerned an individual Agreement.
- Any damage resulting from force majeure shall never be eligible for compensation, without prejudice to the applicability of the previous paragraph.
ARTICLE 10. | SUSPENSION AND DISSOLUTION
- If the circumstances of the case reasonably justify such action, KLCK is entitled to suspend the execution of the Agreement without judicial intervention or to dissolve the Agreement in whole or in part with immediate effect, if and insofar as the Client fails to fulfil its obligations arising from the Agreement, or fails to do so in time or in full, or insofar as, after the conclusion of the Agreement, KLCK becomes aware of any circumstances that constitute reasonable grounds for fearing that the Client will fail to fulfil its obligations. If fulfilment of the Client’s obligations in respect of which the Client fails or risks failing is not permanently impossible, the right to dissolve shall arise only after the Client has been given notice of default In Writing by KLCK, stating a reasonable period within which the Client may (still) fulfil its obligations, and fulfilment has still not been effected upon expiry of the latter period.
- If the Client liquidates its business or transfers it to a third party, is declared bankrupt, has applied for a (provisional) suspension of payments, its assets are attached, or if the Client is otherwise unable to freely dispose of its assets, KLCK shall be entitled to dissolve the Agreement with immediate effect and without judicial intervention.
- The Client shall never be entitled to any form of compensation in connection with the right of suspension or dissolution exercised by KLCK on the basis of this article.
- The Client is obliged to compensate KLCK for the damages it suffers as a result of the suspension or dissolution of the Agreement.
- If KLCK dissolves the Agreement, all claims against the Client shall become immediately due and payable.
ARTICLE 11. | PRICES, EXPENSES AND PAYMENTS
- In addition to the price, the quote provided by KLCK states whether any additional costs, such as travel and accommodation expenses, costs of equipment to be used, licence fees for music and/or stock images, costs of purchasing the necessary materials and costs of hiring third parties, will be charged to the Client. If and insofar as the price and/or additional costs have been offered on the basis of subsequent calculation, the actual hours worked and/or expenses incurred will be charged to the Client on the basis of subsequent calculation.
- All amounts indicated by KLCK and payable by the Client are exclusive of VAT, unless explicitly stated otherwise In Writing.
- Unless otherwise expressly agreed In Writing, KLCK is entitled to demand payment in advance from the Client in full or in part. If the amount owed by the Client exceeds €5,000 (excluding VAT), KLCK shall apply a standard down payment scheme, under which 50% of the total amount must be paid before KLCK commences with the execution of the Agreement.
- If the Client is declared bankrupt, its business is being liquidated, its assets are attached, has requested (temporary) suspension of payments, or is otherwise unable to freely dispose of its assets, the claims against the Client shall be immediately due and payable.
- Payments shall be made by means of bank transfer within the period stated on the relevant invoice. KLCK applies a standard term of payment of 30 days from the invoice date, but may deviate from this in individual cases, such as in the case of a down payment.
- With regard to the payments, it is not permitted to claim suspension or settlement.
- KLCK is entitled to submit the invoice(s) to the Client by e-mail only.
- If payment is not made in due time, the Client will be in default by operation of law. From the first day on which the Client is in default, the Client owes an interest of 2% per month over the outstanding amount, whereby part of a month is considered to be a full month.
- All reasonable costs, such as judicial, extrajudicial and enforcement costs, incurred to obtain the amounts due by the Client shall be borne by the Client.
ARTICLE 12. | LIABILITY AND INDEMNIFICATION
- KLCK is not liable for any damage caused by inaccuracies or incompleteness in the information provided by the Client, any other failure by the Client to fulfil its obligations arising from the law or the Agreement, or any other circumstance which cannot be attributed to KLCK.
- If, for the purpose of executing the Agreement, the Client provides KLCK with videos, images and/or other content which are protected under the Dutch Copyright Act (Auteurswet) or any other intellectual property right, the Client guarantees that there will be no infringement of the intellectual property rights of third parties and indemnifies KLCK, in and out of court, against all consequences arising from the use, reproduction or duplication thereof.
KLCK is never liable for indirect damage, including loss suffered, loss of profit, damage as a result of business interruption and (image)damage as a result of the use of the Production by or for the benefit of the Client. Without prejudice to the provisions of the rest of these general terms and conditions and in particular the provisions of paragraph 4 of this article, KLCK is only liable towards the Client for direct damage suffered by the Client as a result of an attributable failure on the part of KLCK to comply with the services. An attributable shortcoming is understood to mean a shortcoming that a good and careful worker can and should avoid, all this with due observance of normal vigilance and the professional knowledge and resources required for the execution of the Agreement. Under direct damage is exclusively understood:
- the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions;
- any reasonable costs incurred to have the defective performance of KLCK comply with the Agreement, insofar as these can be attributed to KLCK, and;
- reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of the direct damage as referred to in this paragraph.
4. KLCK’s liability will be limited to the invoice value of the Agreement, or at least to that part of the Agreement to which KLCK’s liability applies, on the understanding that KLCK’s liability in the case of personal injury or material damage shall never exceed the amount actually paid out in the relevant case pursuant to KLCK’s corporate liability insurance policy, increased by any excess amount payable by KLCK under that insurance policy.
5. The period of limitation for all legal claims against KLCK is one year.
6. The Client shall indemnify KLCK against any third-party claims which it may receive in connection with the execution of the Agreement and the cause of which is attributable to the Client. In the event that KLCK is held liable by third parties on that account, the Client shall be obliged to assist KLCK both extrajudicially and judicially and to immediately do everything that may reasonably be expected of the Client in that regard. Should the Client fail to take adequate measures, KLCK will be entitled to do so itself without any notice of default. All costs and damages incurred on the part of KLCK and/or third parties as a result, are entirely for the account and risk of the Client.
ARTICLE 13. | INTELLECTUAL PROPERY/COPYRIGHT
- KLCK reserves all intellectual property rights and protections to which it is entitled by law, such as the Dutch Copyright Act (Auteurswet). The ownership of the Productions supplied by KLCK, as well as of any ideas, images, concepts, proposals, scripts etc. supplied, is vested in KLCK. The Client may only use these goods for the purposes intended by the Parties on entering into the Agreement and is not allowed to reproduce, process or pass them on to third parties without the prior permission from KLCK In Writing. The Client is not permitted to use any parts of a delivered Production as part of another production.
- If the Client has fully fulfilled its obligations under the Agreement, the Client will receive an exclusive licence to use the definitive Production for the purposes as laid down in the Agreement. In the event no agreements were made with respect to these purposes, the granting of the licence will be limited to that use of the Production for which plans existed at the time the Agreement was concluded. These plans must have been made known to KLCK demonstrably prior to the conclusion of the Agreement. It is not possible to provide and transfer to the Client any rights to goods other than the final Production, including “ the raw material”, unless explicitly agreed otherwise In Writing.
- The Parties may subsequently agree, In Writing, that the Client will buy out the intellectual property rights to the Production that was delivered. By means of a licence fee or royalty fee, an agreed form of use may be laid down in order to allow the Client to use the production for purposes other than those referred to in the preceding paragraph.
- In the event of a violation of the provisions of this article, KLCK will be entitled to compensation amounting to at least three times the licence fee customarily charged by KLCK for such form of use, without prejudice to KLCK’ s right to compensation for any other damages, including the right to compensation for all direct and indirect damages, as well as all actual judicial and extrajudicial costs.
- Unless explicitly agreed otherwise In Writing, the Services do not include investigating the existence of patent rights, trademark rights, drawing or design rights, and copyrights of third parties. The same applies to any investigation into the possibility of such forms of protection for the Client.
- Unless this cannot reasonably be required of the Client, KLCK shall at all times be entitled to have its name mentioned on the Production or to have its name removed. Without prior permission, the Client is not permitted to use the Production without mentioning this name. In the event of non-compliance with this condition, KLCK is entitled to compensation amounting to 100% of the licensing fee customarily charged by KLCK, without prejudice to KLCK’ s right to compensation for any other damage sustained, including the right to compensation for all direct and indirect damages, as well as all actual judicial and extrajudicial costs.
ARTICLE 14. | PERSONALITY RIGHTS
- When reproducing and publishing a Production, the Client shall at all times observe the personality rights of KLCK, as stipulated in Article 25 paragraph 1 sub c and d of the Dutch Copyright Act (Auteurswet).
- In the event of non-compliance with the provisions of paragraph 1, KLCK is entitled to compensation amounting to 100% of the licensing fee customarily charged by KLCK, without prejudice to KLCK’ s right to compensation for any other damage sustained, including the right to compensation for all direct and indirect damages, as well as all actual judicial and extrajudicial costs.
ARTICLE 15. | RIGHTS OF THIRD PARTIES
KLCK will see to it that anyone who is portrayed in a Production signs a quitclaim for the use of the portrait rights for the purposes as referred to in Article 13.2. If the Production is used for other purposes, the Client, without prejudice to the other provisions of these general terms and conditions, is responsible, to the exclusion of KLCK, for obtaining permission from the persons portrayed. The Client shall indemnify KLCK against all third-party claims in this regard.
ARTICLE 16. | FINAL PROVISIONS
- KLCK is at all times entitled to transfer its rights and obligations under the Agreement to a third party.
- Every Agreement and all legal relationships arising therefrom between the Client and KLCK, are governed exclusively by Dutch law.
- The Parties shall not resort to the courts until they have made every effort to settle the dispute by mutual consultation.
- Only the competent court within the district of KLCK’s registered office shall be designated to hear any legal disputes between the Parties.
- If these general terms and conditions are available in several languages, the Dutch version shall always be decisive for the interpretation of the provisions contained therein.