Terms and Conditions
Last updated December 17, 2018
ARTICLE 1. DEFINITIONS AND TERMS
1. In these general terms and conditions, the following terms are used with the meanings set forth below, unless expressly
indicated otherwise: TMC Media BV: the party applying these general terms and conditions, with its place of business at Zwaardstraat 16, The Hague. Client: the counterparty to TMC Media BV. Agreement: any agreement between the Client and TMC Media BV regarding the performance of Work. Result or Results: the results of the work to be delivered by TMC Media BV in either tangible or intangible form. This includes, among other things, conceptual and communication advice, images, concepts, illustrations, photographs, source codes, (draft) designs, (digital or otherwise) content for video productions, websites, online brochures, printed materials, and other multimedia products, as well as other materials or (electronic) files, all of which are understood in the broadest sense of the term. Work: the performance of work or services (including the provision of advice) and/or the delivery of Results, without any subordinate relationship and outside the scope of an employment relationship or a contract for services, all in the broadest sense of the term and as specified in the Agreement. Terms and Conditions: these general terms and conditions of TMC Media BV.
ARTICLE 2. GENERAL
1. These terms and conditions apply to every offer, quotation, and agreement between TMC Media BV and a client to which TMC Media BV has declared these terms and conditions applicable, unless the parties have expressly deviated from these terms and conditions in writing. Entering into an agreement with TMC Media BV implies that the Client unconditionally accepts the applicability of these terms and conditions.
2. These terms and conditions also apply to agreements with TMC Media BV for the performance of which TMC Media BV (must) engage third parties.
3. If one or more provisions in these terms and conditions are at any time wholly or partially void or are declared void, the remaining provisions in these terms and conditions shall remain in full force and effect. TMC Media BV and the Client will then consult with each other to agree on new provisions to replace the void or invalidated provisions, taking into account as much as possible the purpose and intent of the original provisions.
4. If TMC Media BV does not consistently require strict compliance with these terms and conditions, this does not mean that the provisions thereof are inapplicable, nor that TMC Media BV loses, to any extent, the right to require strict compliance with the provisions of these terms and conditions in other cases.
5. Any deviations from these terms and conditions are valid only if they have been expressly agreed upon in writing and apply only to the specific provision of the Agreement to which the deviations relate.
6. The applicability of any purchasing or other terms and conditions of the client is expressly rejected.
7. In the event that these terms and conditions and the Agreement contain provisions that conflict with one another, the terms and conditions set forth in the Agreement shall prevail.
8. TMC Media BV is entitled to publicize its relationship with the Client and the assignments provided by the Client for commercial purposes, unless and to the extent that the Client has expressly stated that it does not wish this to be done.
ARTICLE 3. FORMATION OF THE AGREEMENT
1. All quotations and offers from TMC Media BV are non-binding and revocable, unless a deadline for acceptance is specified in the quotation. If no acceptance period has been specified, no rights whatsoever may be derived from the quotation or offer. This applies in particular—but not exclusively—to situations in which the service or item to which the quotation or offer relates is no longer available in the meantime.
2. TMC Media BV may make an offer to enter into a contract either verbally or in writing. The agreement shall only become binding on TMC Media BV after TMC Media BV has accepted the order and has received the written order confirmation signed by the Client.
3. If the assignment was given verbally or if the signed order confirmation has not yet been received, the agreement is deemed to have been concluded under these terms and conditions at the moment TMC Media BV begins performing the Agreement at the Client’s request. If, in this case, the client has not responded to the content of the order confirmation within two business days of TMC Media BV’s request, that order confirmation shall be deemed accurate and complete, and both the client and TMC Media BV shall be bound by its content.
4. The Client’s provision of information and/or materials to TMC Media BV for the performance of the work shall be deemed equivalent to making the request as specified in paragraph 3 above.
5. Furthermore, all quotations and offers are based on the information provided by the Client. If such information is found to be incorrect or incomplete, the Client may not derive any rights against TMC Media BV from an (accepted) quotation or offer, and/or TMC Media BV may charge the Client for any additional costs incurred in connection therewith, to be included in
. The foregoing does not affect TMC Media BV’s right to terminate the Agreement. TMC Media BV cannot be held bound by its quotations or offers if the Client could reasonably have understood, or should have understood, that the quotations or offers—or any part thereof—contain an obvious error or typographical mistake that is material to TMC Media BV for the purpose of entering into the Agreement.
6. The prices stated in a quotation or offer are exclusive of VAT and other government levies, as well as any costs to be incurred in connection with the Agreement, including travel and accommodation, shipping, and administrative costs, unless otherwise indicated.
7. The documents, drawings, technical specifications, designs, and calculations that form part of the offer and that were produced by TMC Media BV or on its behalf remain the property of TMC Media BV. They may not be provided to or shown to third parties without its consent. Nor may they be copied or otherwise reproduced without the prior explicit written consent of
TMC Media BV. If no order is placed, the aforementioned documents must be returned to TMC Media BV, postage prepaid, within 14 days of a request to that effect made by TMC Media BV.
ARTICLE 4. PERFORMANCE OF THE AGREEMENT
1. The Agreement with the Client is a contract for services as referred to in Article 7:401 of the Dutch Civil Code and constitutes an obligation to use best efforts. TMC Media BV is obligated to perform (or have performed) the assignment agreed upon with it as a competent and diligent contractor.
2. If and to the extent that the proper performance of the Agreement so requires, TMC Media BV has the right to engage auxiliary personnel, freelancers, and other third parties to perform its Services. The applicability of Articles 7:404, 7:407(2), and 7:409 of the Dutch Civil Code is expressly excluded. When engaging third parties, TMC Media BV will exercise due care.
3. TMC Media BV is not liable for damage resulting from shortcomings in the performance of Work by the aforementioned third parties as referred to in paragraph 2, except in cases of willful misconduct or gross negligence.
4. The Client shall provide TMC Media BV in a timely manner with all information necessary for the performance of the Agreement.
5. If the information required for the performance of the Agreement has not been provided to TMC Media BV (in a timely manner), TMC Media BV has the right to suspend its obligations under the Agreement and to charge the Client for any additional costs resulting from the delay in accordance with the rates in effect at that time. TMC Media has the right to ensure that the
performance period does not commence until the Client has made the information available to TMC Media BV, without prejudice to its other rights as set forth in these terms and conditions.
6. If it has been agreed that the Agreement will be executed in phases, TMC Media BV may suspend the execution of the components belonging to a subsequent phase until the Client has approved the Results of the preceding phase in writing.
7. The shipment of goods to be delivered shall take place in the manner specified by TMC Media BV and at the Client’s expense. If the Client wishes to receive a shipment in a manner other than that specified by TMC Media BV, any associated additional costs shall be borne by the Client.
ARTICLE 5. DELIVERY AND CHANGES TO THE ORDER
1. TMC Media BV will commence its work as soon as possible after receiving the necessary data, texts, and/or visual material and will notify the Client of the expected delivery time.
2. Unless otherwise agreed in writing, any delivery deadline specified by TMC Media BV is merely indicative and is based on the circumstances known at the time the Agreement was concluded. Delivery times are always approximate and are not binding.
3. If, during the performance of the Agreement, it becomes apparent that it is necessary to modify or supplement the work in order to ensure proper performance, the parties shall amend the Agreement accordingly in a timely manner and by mutual agreement.
4. If the Agreement has been amended or supplemented, TMC Media BV is entitled to implement such changes only after the parties have reached agreement on all amendments and/or supplements, including the to-be-determined date of completion of the work, compensation, and other terms and conditions. Failure to implement the amended Agreement, or failure to do so immediately, does not constitute a breach of TMC Media BV’s obligations under the Agreement and does not constitute grounds for the Client to terminate, partially rescind, or otherwise terminate the Agreement. TMC Media BV shall never be liable for any resulting damages incurred by the Client.
5. If a fixed fee has been agreed upon, TMC Media BV shall inform the Client at that time whether and to what extent the amendment or addition to the Agreement affects this fee. If no fixed fee has been agreed upon, the fee will be calculated in the manner specified in Article 6, paragraph 4.
6. Changes to an assignment that has already been issued may result in TMC Media BV exceeding the originally agreed-upon delivery time. In that case, Article 5, paragraph 4, applies mutatis mutandis.
7. In the unlikely event that TMC Media BV is unable to fulfill its obligations within the agreed-upon delivery period, TMC Media BV may only be given notice of default in writing. Article 10, paragraph 11, then applies.
ARTICLE 6. FEES
1. The fees and any cost estimates are stated in euros, always exclusive of VAT and any other government-imposed levies
. In addition to the agreed-upon fees, any expenses, travel costs, and costs incurred by third parties engaged by TMC Media BV shall be borne by the Client.
2. If TMC Media BV deems it appropriate, TMC Media BV is entitled to request payment from the Client of a reasonable advance on the fees for the Work yet to be performed. TMC Media BV is entitled to suspend the commencement of its Work until the advance payment has been made or sufficient security has been provided for it; this is at the
sole discretion of TMC Media BV.
3. The agreed-upon compensation is in no way dependent on the outcome or Results of the assignment.
4. If the Client and TMC Media BV have not agreed on a fixed (periodic) fee, the fee shall be determined based on the hourly rate multiplied by the time spent by TMC Media BV and increased by the costs incurred by it.
5. TMC Media BV is entitled at all times to increase the fee, without the Client being entitled in such a case to terminate the Agreement for that reason, if the price increase results from an authority or obligation arising from (amended) laws or regulations or is caused by an increase in, among other things, wages, third-party costs, or other circumstances that could not reasonably have been foreseen at the time the Agreement was entered into.
6. Furthermore, TMC Media BV has the right to increase the fee if, during the performance of the Work, as a result of circumstances beyond its control, it becomes apparent that the (scope of the) originally agreed-upon Work was underestimated to such an extent at the time the Agreement was concluded that TMC
Media BV cannot reasonably be expected to perform the agreed-upon Work for the originally agreed-upon fee.
7. All travel and accommodation expenses, as well as costs for, among other things—but not limited to—the purchase of rights (music rights, image rights, etc.), are considered additional costs and are payable separately by the Client, even if they are not mentioned in the proposal or the Agreement. These costs will be added separately to the (final) invoice, accompanied by a breakdown. TMC Media BV is not obligated to hand over the physical underlying documents to the Client. The reimbursement for travel expenses by car amounts to 0.45 euro cents per kilometer, plus VAT, as well as any reasonable parking costs incurred on behalf of the Client. The reimbursement for the use of other means of transportation shall be equal to the actual travel costs.
8. The Client is obligated to reimburse TMC Media BV for all other reasonable expenses incurred in connection with the performance of the Agreement.
9. The reimbursement will be invoiced to the Client periodically, per phase, or upon completion of the (relevant) Work.
ARTICLE 7. PAYMENT
1. Payment must always be made within 14 days of the invoice date, in a manner to be specified by TMC Media BV.
2. For agreements with a value exceeding €1,000.00, or for assignments in which TMC Media BV must rent materials from third parties, purchase printed materials, or otherwise incur costs with third parties, the Client is obligated to make a down payment of at least 50% of the total amount of the Agreement within fourteen days of the Agreement’s conclusion. Upon completion of (the relevant phase of) the Work, the Client will receive an invoice for the remaining 50% of the fee.
3. If the Client fails to make timely and/or full payment of an invoice, the Client shall be in default by operation of law. The Client will then owe interest on the unpaid amount at a rate of 1% per month or part thereof, unless the statutory interest rate is higher, in which case the statutory interest rate applies. Interest on the amount due will be calculated from the moment the Client is in default until the moment the full
amount owed is paid in full.
4. The Client is never entitled to set off the amount owed by it to TMC Media BV. Objections to the amount of an invoice do not suspend the payment obligation. A Client who is not entitled to invoke Section 6.5.3 of the Dutch Civil Code (Articles 231 through 247 of Book 6 of the Dutch Civil Code) is likewise not entitled to suspend payment of an invoice for any other reason.
5. If the Client is in default or fails to fulfill its obligations (in a timely manner), all reasonable (judicial and extrajudicial) costs incurred to obtain payment out of court shall be borne by the Client. Extrajudicial costs are calculated based on standard Dutch debt collection practices and amount to at least 15% of the amounts due. However, if TMC Media BV has incurred higher collection costs that were reasonably necessary, the Client must reimburse the actual costs incurred. Any judicial and enforcement costs incurred will also be payable by the Client. The Client is also liable to pay statutory interest on the collection costs owed.
6. If progress in the performance of the Work is delayed due to default or negligence on the part of the Client or due to force majeure on the Client’s part, TMC Media BV has the right to charge the full agreed-upon amount, and the Client is obligated to pay that amount to TMC Media.
ARTICLE 8. TERM AND TERMINATION OF AGREEMENTS
1. The Agreement is entered into for a fixed term, unless its nature and purpose indicate that it has been entered into for an indefinite term.
2. TMC Media BV and the Client are entitled at any time to terminate a contract for an indefinite term by giving notice. Judicial intervention is not required for this purpose. Such notice of termination must be given by certified mail and with a notice period of at least 1 (one) month.
3. A fixed-term agreement may not be terminated prematurely, unless there are circumstances of such urgency that TMC Media BV or the Client cannot reasonably be expected to allow the Agreement to continue. This must be communicated to the other party in writing, stating the reasons. This is without prejudice to the Client’s obligation to pay the full agreed-upon compensation to TMC Media BV.
4. In addition, the Agreement may be terminated early by TMC Media BV pursuant to Section 3.5 of these terms and conditions. In that case, the Client is obligated to reimburse TMC Media BV for the costs incurred up to that point, plus 50% of the (remaining) agreed-upon fee.
5. The Client may terminate the Agreement immediately if the increase in the fee by TMC Media BV as referred to in Article 6.6 exceeds 10% of the agreed-upon fee and the parties have failed to reach an agreement following consultations held for that purpose. If the aforementioned increase occurs within three months of the conclusion of the Agreement, the Client may terminate the Agreement immediately, regardless of the percentage of the increase.
6. In the event of cancellation of the Agreement within 24 hours prior to the commencement of the Work, the fee will be charged at a rate of 50% of the quoted labor costs and 25% of the equipment costs. Costs associated with the cancellation of materials, equipment, freelancers, and services contracted by TMC Media BV will be charged in full to the Client in accordance with the terms and conditions of the relevant party.
7. If the Agreement is terminated prematurely by the Client for reasons other than those referred to in paragraphs 5 or 6, or is terminated prematurely by mutual consent, the Client is obligated to pay the agreed-upon compensation, the expenses incurred by TMC, and the demonstrable damages caused to TMC Media BV (such as loss of capacity utilization and additional costs) resulting from the early termination of the Agreement, unless the cause of the early termination of the Agreement lies in a breach attributable exclusively to TMC Media BV.
7. In the event that the Client enters bankruptcy, files for a stay of payments, or ceases its business operations, TMC Media BV has the right to terminate the Agreement immediately without observing a notice period, without prejudice to its other rights.
9. Without prejudice to its rights as set forth elsewhere in these terms and conditions, TMC Media BV is authorized to suspend performance of the obligations under the Agreement or to terminate the Agreement (in whole or in part) if:
• The Client fails to fulfill, or fails to fully or timely fulfill, its obligations under the Agreement;
• After the conclusion of the Agreement, TMC Media BV becomes aware of circumstances that give good reason to fear that the Client will not fulfill its obligations toward TMC Media BV or will not do so properly;
• If, at or after the conclusion of the Agreement, the Client is requested to provide security for the fulfillment of its obligations under the Agreement and such security is not provided or is insufficient;
• if, due to a delay on the part of the Client, TMC Media BV can no longer be expected to perform the Agreement under the originally agreed terms.
10. TMC Media BV is also authorized to suspend the delivery of documents or other items to the Client or third parties until all due and payable claims of TMC Media BV against the Client have been fully settled.
11. If the Agreement is terminated (in whole or in part), TMC Media BV’s claims against the Client shall become immediately due and payable.
ARTICLE 9. VOICE-OVER/VOICE, MUSIC, AND OTHER RIGHTS
1. The costs of voice-over(s) are considered additional costs that are payable separately by the Client and are not included in the quote (price). Unless otherwise agreed in writing, these costs will be added separately by TMC Media BV to the (final) invoice.
2. For music used in a video production or online content, the Client must pay a fee for the rights to a copyright organization such as Buma/Stemra, SENA, Stichting SYNC, or a comparable organization. The Client is at all times solely responsible for the registration, licensing, and payment of these copyrights, as well as for monitoring compliance.
3. The aforementioned copyright fees are additional costs that are not included in the quote and are payable separately by the Client. The amounts thus owed will be added to the (final) invoice.
4. TMC Media BV may, upon request, provide an estimate of these costs, but no rights may ever be derived from such an estimate. The actual costs, as determined by the relevant copyright organization, will be invoiced to the Client by TMC Media BV after the fact and must be paid by the Client to TMC Media BV.
ARTIKEL 10. AANSPRAKELIJKHEID
1. TMC Media BV zal haar werkzaamheden naar beste kunnen verrichten en daarbij de zorgvuldigheid in acht nemen die van een zorgvuldig opdrachtnemer mag worden verwacht.
2. TMC Media BV is niet verantwoordelijk of aansprakelijk voor de inhoud van door Opdrachtgever aangeleverd promotiemateriaal. Indien een tekortkoming ontstaat of een fout gemaakt wordt doordat de Opdrachtgever onjuiste of onvolledige informatie heeft verstrekt, is TMC Media BV voor de daardoor ontstane schade niet aansprakelijk.
3. Opdrachtgever is aansprakelijk voor alle schade die TMC Media BV mocht lijden ten gevolge van een aan Opdrachtgever toerekenbare tekortkoming in de nakoming van de verplichtingen voortvloeiende uit de Overeenkomst en deze voorwaarden.
4. Wijzigingen in de gegevens van Opdrachtgever dient Opdrachtgever direct schriftelijk mede te delen aan TMC Media BV. Indien de Opdrachtgever hierin verzuimt, is de Opdrachtgever aansprakelijk voor eventuele schade die TMC Media BV als gevolg daarvan lijdt.
5. In geval van toerekenbare tekortkoming in de nakoming van de Overeenkomst door TMC Media BV is TMC Media BV slechts aansprakelijk voor vervangende schade als bedoeld in artikel 6:87 BW en is zij gehouden de waarde van de achterwege gebleven prestatie te vergoeden.
6. De totale aansprakelijkheid van TMC Media BV is met inachtneming van het bepaalde in artikel 10 lid 7 beperkt tot de vergoeding welke TMC Media BV voor haar Werkzaamheden in het kader van de Overeenkomst heeft ontvangen. Voor overeenkomsten die een langere looptijd hebben dan zes maanden, geldt dat de totale aansprakelijkheid onder de Overeenkomst verder is beperkt tot maximaal de vergoeding over de laatste zes maanden en voorts met inachtneming van het bepaalde in artikel 10 lid 7.
7. Bovendien is de aansprakelijkheid van TMC Media BV in totaliteit beperkt tot het bedrag dat in het desbetreffende geval onder de afgesloten bedrijfsaansprakelijkheidsverzekering wordt uitgekeerd, vermeerderd met het bedrag van het eigen risico. TMC Media BV mag de verplichting tot vergoeding van de schade verrekenen met de niet betaalde facturen en door Opdrachtgever verschuldigde invorderingskosten en (wettelijke) rente.
8. Voornoemde limiteringen van aansprakelijkheid zijn niet van toepassing indien sprake is van schade ten gevolge van grove schuld of opzet door TMC Media BV of haar leidinggevenden. 9. Voor personen (en gevolgen van hun handelen en nalaten) die TMC Media BV op aanwijzing van Opdrachtgever heeft ingeschakeld, is TMC Media BV niet aansprakelijk.
10. TMC Media BV is indien sprake is van aansprakelijkheid, uitsluitend aansprakelijk voor directe schade. Voor andere, indirecte en/of gevolgschade (inclusief maar niet beperkt tot gederfde winst, bedrijfsstagnatiekosten, verlies van relaties, o.a. voortvloeiende uit enige vertraging, verlies van gegevens, goodwill, overschrijding van een leveringstermijn en/of geconstateerde gebreken) dan door Opdrachtgever geleden directe vermogensschade is TMC Media BV niet aansprakelijk.
11. Voor zover Opdrachtgever en TMC Media BV in de Overeenkomst of tijdens de uitvoering van de Overeenkomst, termijnen zijn overeengekomen waarbinnen de Werkzaamheden dienen te worden verricht, zijn deze termijnen indicatief en niet bindend, tenzij uitdrukkelijk schriftelijk anders overeengekomen zoals bij een overeenkomst van opdracht voor bepaalde tijd. Overschrijding daarvan zal nimmer een tekortkoming in de nakoming van de verplichting van TMC Media BV opleveren en Opdrachtgever niet het recht geven daarom schadevergoeding en/of ontbinding van de Overeenkomst te vorderen. Bij overschrijding van een termijn dient de Opdrachtgever TMC Media BV daarom schriftelijk in gebreke te stellen. TMC Media BV dient daarbij een redelijke termijn te worden geboden van minimaal twee (2) weken of zoveel langer als gegeven de omstandigheden redelijk is om alsnog uitvoering te geven aan de Overeenkomst.
12. Opdrachtgever is verplicht om binnen twee (2) maanden nadat zij een onjuistheid in de uitvoering van de Overeenkomst en het al dan niet daaruit voortvloeiende schaderisico heeft gesignaleerd of redelijkerwijze had kunnen signaleren, daarvan schriftelijk mededeling te doen aan TMC Media BV.
13. Indien de in het voorgaande lid bedoelde mededeling niet of te laat wordt gedaan, is TMC Media BV op geen enkele wijze verplicht tegenover Opdrachtgever om de geleden schade te vergoeden of ongedaan te maken op een wijze die past bij en aansluit op de inhoud van de opdracht en de aard van de Werkzaamheden.
14. Opdrachtgever vrijwaart TMC Media BV voor alle aanspraken die derden ten opzichte van TMC Media BV pretenderen en uitoefenen ter vergoeding van geleden schade, gemaakte kosten, gederfde winst en andere uitgaven die op enigerlei wijze verband houden met en/of voortvloeien uit de uitvoering van de opdracht door TMC Media BV voor Opdrachtgever.
15. Na verloop van twaalf maanden te rekenen vanaf het einde van de Overeenkomst of voltooiing van de Werkzaamheden vervalt ieder recht van Opdrachtgever tegenover TMC Media BV ter zake schade ontstaan door eventuele tekortkomingen en/of fouten van TMC Media BV bij de uitvoering van de Overeenkomst.
ARTICLE 11. FORCE MAJEURE
1. TMC Media BV is not obligated to fulfill any obligation toward the client if it is prevented from doing so as a result of a circumstance that is not attributable to fault and for which it is not liable under the law, a legal act, or generally accepted commercial practices.
2. In these general terms and conditions, “force majeure” is defined, in addition to what is understood in this regard under the law and case law, as all external causes, whether foreseeable or unforeseeable, over which TMC Media BV has no control, but which prevent TMC Media BV from fulfilling its obligations. Circumstances constituting such force majeure include, in any event, the inability to perform the Agreement due to the unavailability of third parties engaged by TMC Media BV, as well as the inability of TMC Media BV itself as a result of
illness, strikes, disruptions to energy supplies, traffic disruptions, disruptions to transportation, postal services, and/or telecommunications, as well as disruptions to networks, infrastructure, and computer hacking. This list is not exhaustive.
3. TMC Media BV may suspend its obligations under the Agreement for the duration of the force majeure event. If this period lasts longer than two months, either party is entitled to terminate the Agreement without any obligation to compensate the other party for damages.
4. To the extent that, at the time the force majeure event occurs, TMC Media BV has already partially fulfilled its obligations under the Agreement or will be able to fulfill them, and the fulfilled or to-be-fulfilled portion has independent value, TMC Media BV is entitled to invoice the Work relating to the already fulfilled or to-be-fulfilled portion separately. The Client is obligated to pay this invoice as if it were a separate agreement.
ARTICLE 12. COMPLAINTS
1. The Client is obligated to verify, with due diligence, upon delivery of the service and/or goods, whether TMC Media BV has properly fulfilled the Agreement, and the Client is further obligated to notify TMC Media BV immediately in writing as soon as it becomes apparent that this is not the case.
2. Complaints regarding the Work performed must be reported in writing by the Client to TMC Media BV in any case within 14 days of discovery, but no later than 30 days after delivery of the relevant service or goods. The notice of default must contain as detailed a description as possible of the deficiency, as well as a reasonable timeframe
for rectification, so that TMC Media BV is able to respond appropriately.
3. If a complaint is justified, TMC Media BV will still provide the services or deliver the goods as agreed, unless this is permanently impossible or the Client has since waived this right because delivery has demonstrably become pointless. The Client must demonstrate the latter in writing.
4. Performance of the Agreement shall be deemed satisfactory between the parties if the Client has failed to conduct the investigation or provide the notice referred to in paragraph 1 and/or paragraph 2 of this article in a timely manner.
5. TMC Media BV’s performance shall in any case be deemed satisfactory between the parties if the Client has put the delivered goods or a portion thereof into use, has modified or processed them, has delivered them to third parties, or has caused them to be put into use, modified, or processed, or has caused them to be delivered to third parties, even if the Client has complied with the provisions of the first paragraph of this article.
6. If it is no longer possible or practical to perform the agreed-upon Work or to deliver goods, TMC Media BV shall only be liable if and to the extent in accordance with the provisions of Article 11.
ARTICLE 13. CONFIDENTIALITY
1. Unless required to do so by any statutory provision, regulation, or other rule, the parties are obligated to maintain confidentiality toward third parties with respect to confidential information obtained from the other party. The disclosing party may grant an exemption in this regard. Information is considered confidential if the disclosing party has designated it as such or if this arises from the nature of the information.
2. Unless the disclosing party has given written consent, the receiving party is not authorized to use the confidential information made available to it by the other party for any purpose other than that for which it was obtained. However, an exception to this applies if TMC Media BV is acting on its own behalf in disciplinary, civil, or criminal proceedings in which this information may be relevant.
3. Unless required by any mandatory provision of law that obligates the Client to disclose such information, or unless TMC Media BV has granted prior consent to do so, the Client shall not disclose the content of reports, works, advice, or other communications—whether written or otherwise—from TMC Media BV to third parties.
ARTICLE 14. RETENTION OF TITLE AND THE CLIENT’S PROPERTY
1. All goods or Deliverables created or delivered by TMC Media BV under the Agreement shall remain the property of TMC Media BV until the amounts owed by the Client have been paid in full, without prejudice to the provisions of Article 15.
2. TMC Media BV shall store the goods entrusted to it by the Client in connection with the performance of the Agreement with the care of a prudent custodian. However, TMC Media BV is not liable for damage to the entrusted items or damage to (digital) files.
3. Without prejudice to the rights to which TMC Media BV is entitled in this regard, TMC Media BV will store the film footage or other works created for the Client on the Client’s behalf for a maximum period of six (6) months. For an additional fee and provided this is stipulated in an agreement, TMC Media BV may store the filmed footage or other (digital) works for a longer period.
4. TMC Media BV is not responsible for the loss of filmed footage or other works due to, for example, but not limited to, unforeseen circumstances such as computer crashes, fire, burglary, or other unforeseen situations.
5. TMC Media BV charges a fee of 45 euros per project for data storage every 6 months; these amounts are payable in advance by the Client.
ARTICLE 15. INTELLECTUAL PROPERTY
1. All intellectual or industrial property rights (or claims thereto) (such as, for example, patent rights, copyrights, related rights, database rights, design rights), which may be or will be exercisable—wherever and whenever—with respect to the Results, shall vest in TMC Media B.V. and/or its licensors, both for the purposes of use and exploitation. To the extent that such a right can only be obtained through filing or registration, only TMC Media B.V. and/or its licensor is authorized to do so, unless otherwise agreed.
2. The parties may agree that the rights referred to in the first paragraph will be transferred in whole or in part to the Client. This transfer and any conditions under which it takes place shall always be set forth in writing in a separate agreement. Until the time of transfer, a right of use shall be granted as provided for in paragraph 3 of this article.
3. If the Client has fully complied with and continues to comply with its obligations under the agreement with TMC Media BV, it shall acquire the right to use the Result itself in the Netherlands in accordance with the agreed-upon purpose. If no agreements have been made regarding the intended use, the right of use remains limited to that one-time use of the Result for which there were fixed plans at the time the Agreement was entered into and for which the assignment was (apparently) awarded. These plans must have been demonstrably disclosed to TMC Media BV prior to the conclusion of the agreement.
4. Without written consent, the Client is not entitled to modify the Result, to (re)use or implement it more extensively or in any other manner than agreed upon, or to have third parties do so. TMC Media BV may attach conditions to such consent, including the payment of reasonable compensation.
5. Unless the Result is not suitable for this purpose, TMC Media BV is entitled at all times to include or remove its name from the Result. Without prior written consent, the Client is not permitted to use the Result without mentioning the name of TMC Media BV. In this regard, the Client shall comply with the instructions regarding the manner in which TMC Media’s name and rights are to be acknowledged.
6. Unless expressly agreed otherwise in writing, the Scope of Work does not include conducting research into the existence of third-party intellectual or industrial property rights (such as patent, trademark, trade name, copyright, portrait, database, design, and neighboring rights). The same applies to any investigation into the possibility of such forms of protection for the Client.
7. The costs of third-party licenses for the use of material protected by intellectual or industrial property rights that will be used in the performance of the Agreement shall be at the Client’s expense and risk. Such protected material includes, but is not limited to: fonts, software, corporate identity elements, photographs, videos, stock images, databases, logos, and compositions. The Client is obligated to reimburse these costs to TMC Media BV or to the relevant rights holders. The foregoing also applies with respect to portrait rights of extras, interviewees, or other individuals or rights holders of a video production, as well as image rights to, for example, buildings, works of art, or locations.
8. TMC Media BV has the freedom, with due regard for the Client’s interests and without any compensation being due in this regard, to use the Results for its own publicity, acquisition of assignments, and promotion, including contests, exhibitions, and the like.
9. By issuing an instruction to use, reproduce, or disclose any material protected by intellectual or industrial property rights, the Client warrants that no infringement of such third-party rights will occur and indemnifies TMC Media BV, both in and out of court, against all consequences arising from such use, reproduction, or disclosure.
ARTICLE 16. GOVERNING LAW
1. All agreements between TMC Media BV and the Client are governed exclusively by Dutch law. The possible applicability of the Vienna Convention on Contracts for the International Sale of Goods is expressly excluded.
2. All disputes relating to or arising from (the interpretation and/or performance of) the Agreement shall be settled by the court in The Hague.
ARTICLE 17. LOCATION AND AMENDMENTS TO THE TERMS AND CONDITIONS
1. These terms and conditions have been filed with the Chamber of Commerce in The Hague and will be sent by TMC Media BV free of charge upon request. The terms and conditions may also be viewed, copied, and saved via the website www.TMCMedia.nl/algemenevoorwaarden.
2. The most recently filed version, or the version in effect at the time the legal relationship with TMC Media BV was established, shall always apply.
3. The Dutch text of the general terms and conditions shall always prevail in their interpretation.
