General conditions
Last update December 17, 2018
ARTICLE 1. DEFINITIONS AND TERMS
1. In these general conditions the following terms are used in the following sense, unless explicitly
indicated otherwise: TMC Media BV: the user of these general conditions, established at Zwaardstraat 16, The Hague. Customer: the counterparty of TMC Media BV. Agreement: any agreement from the Principal to TMC Media BV relating to the performance of Work. Result or Results: the results of the Activities to be delivered by TMC Media BV in material or immaterial form. This includes, amongst others, concept and communication advice, images, concepts, illustrations, photographs, source codes, (test) designs, (digital or non-digital content for) video productions, websites, online brochures, printed matter and other multimedia products and other materials or (electronic) files, all this in the broadest sense of the word. Activities: the performance of activities/services (including giving advice) and/or the delivery of Results, all this in the broadest sense of the word and as mentioned in the Agreement. Conditions: these general conditions of TMC Media BV.
ARTICLE 2. GENERAL
1. These conditions apply to every offer, quotation and agreement between TMC Media BV and a Principal, to which TMC Media BV has declared these conditions applicable, to the extent parties have not explicitly deviated from these conditions in writing. The conclusion of an agreement with TMC Media BV implies that the Customer unconditionally accepts the applicability of these conditions.
2. These conditions also apply to agreements with TMC Media BV, for the performance of which TMC Media BV engages third parties.
3. If one or more provisions in these conditions shall at any time be wholly or partly void or cancelled, the other provisions of these conditions shall remain fully applicable. TMC Media BV and the Customer shall then consult to agree upon new provisions to replace the void or voided provisions, whereby the purpose and the meaning of the original provisions shall be observed as much as possible.
4. If TMC Media BV does not always require strict compliance with these conditions, this does not mean that the provisions thereof do not apply, nor that TMC Media BV loses the right to require strict compliance with the provisions of these conditions in other cases.
5. Any deviations from these conditions shall only be valid if explicitly agreed upon in writing and shall only apply with respect to the specific (provision in the) Agreement to which the deviations relate.
6. The applicability of any purchase or other conditions of the Client is expressly rejected.
7. In the event that these conditions and the Agreement contain conflicting provisions, the conditions included in the Agreement shall prevail.
8. TMC Media BV is entitled to mention the relationship with the Customer and the assignments provided by the Customer for commercial purposes, except if and insofar the Customer has explicitly stated not to appreciate this.
ARTICLE 3. CONCLUSION OF AGREEMENT
1. All quotations and offers of TMC Media BV are without engagement and revocable, unless the quotation stipulates a term for acceptance. If no acceptance term is mentioned, no rights whatsoever can be derived from the offer. This applies in particular - but not exclusively - to the situation that the service or item to which the quotation or offer relates is no longer available in the meantime.
2. The offer to enter into an agreement can be made by TMC Media BV both orally and in writing. Only after TMC Media BV has accepted the assignment and it has received back the written assignment confirmation signed by the Customer, the assignment is binding for TMC Media BV.
3. If the assignment was given verbally or if the signed order confirmation has not yet been returned, the Agreement shall be deemed to be concluded under the applicability of these conditions at the moment that TMC Media BV started the performance of the Agreement at the request of the Principal. If in this case the Customer has not responded to the contents of the order confirmation within two working days after TMC Media BV's request, the order confirmation shall be deemed to be correct and complete and the Customer and TMC Media BV shall be bound by its contents.
4. The provision by the Customer to TMC Media BV of information and/or materials for the performance of the Services shall be deemed to be equivalent to making the request as stipulated above in paragraph 3.
5. All quotations and offers are based on the information provided by the Customer. If any information provided by the Customer turns out to be incorrect or incomplete, the Customer cannot derive any rights from an (accepted) quotation or offer and/or TMC Media BV can charge the Customer for the additional costs that it incurs in relation thereto in
. The foregoing is without prejudice to TMC Media BV's right to terminate the Agreement TMC Media BV cannot be held to its quotations or offers, if the Customer can or should reasonably have understood that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error, which is/are relevant for TMC Media BV to enter into the Agreement.
6. The prices mentioned in an offer or quotation are exclusive of VAT and other government levies, and any costs to be incurred in the context of the Agreement, including travel and accommodation, shipping and administration costs, unless stated otherwise.
7. The documents, drawings, technical descriptions, designs and calculations that are part of the offer, produced by TMC Media BV or on its behalf, shall remain the property of TMC Media BV. They may not be handed over or shown to third parties without its consent. Nor may they be copied or otherwise reproduced without the explicit prior written consent of
TMC Media BV. If no assignment is granted, the aforementioned documents must be returned postage paid within 14 days after a request to that effect by TMC Media BV.
ARTICLE 4. PERFORMANCE OF THE AGREEMENT
1. The Agreement with the Customer is an assignment agreement as referred to in Article 7:401 of the Dutch Civil Code and concerns an obligation to perform to the best of one's abilities. TMC Media BV is obliged to execute the assignment agreed with the Customer as a good and careful contractor.
2. If and to the extent required for a proper execution of the Agreement, TMC Media BV is entitled to engage auxiliary persons, freelancers and other third parties for the execution of its Services. The applicability of articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is explicitly excluded. TMC Media BV shall exercise due care when engaging third parties.
3. TMC Media BV shall not be liable for damages resulting from shortcomings in the performance of the Services by the aforementioned third parties as referred to in paragraph 2, except in the event of intent or gross negligence.
4. The Customer shall timely provide TMC Media BV with all information necessary for the performance of the Agreement.
5. If the data required for the performance of the Agreement are not provided (in a timely fashion) to TMC Media BV, TMC Media BV shall be entitled to suspend its obligations under the Agreement and to charge the additional costs resulting from the delay to the Customer in accordance with the then customary rates. TMC Media is entitled to not start the
performance period earlier than after the Customer has made the data available to TMC Media BV, without prejudice to its other rights as stipulated in these conditions.
6. If it is agreed that the Agreement will be performed in stages, TMC Media BV can suspend the performance of the parts belonging to a following stage until the Customer has approved in writing the Results of the preceding stage.
7. The shipment of goods to be delivered shall take place in the way as indicated by TMC Media BV and at the expense of the Customer. If the Customer wishes to receive a shipment in a different way than indicated by TMC Media BV, the additional costs related thereto shall be for the account of the Customer.
ARTICLE 5. DELIVERY AND CHANGES TO THE ASSIGNMENT
1. TMC Media BV shall commence its work as soon as possible after receipt of the required data, texts and/or visual material and shall inform the Customer of the expected delivery time.
2. A delivery time mentioned by TMC Media BV shall, unless deviated from in writing, only be indicative and shall be based on the circumstances known at the time of the conclusion of the Agreement. Delivery times are always approximate and are not binding.
3. If during the performance of the Agreement it appears that for proper performance it is necessary to modify or supplement the work, the parties will timely and in mutual consultation adjust the Agreement accordingly.
4. If the Agreement is amended or supplemented, TMC Media BV shall only be entitled to perform the Agreement after the parties have agreed on all amendments and/or additions, including the time of completion of the work, remuneration and other conditions. Not or not immediately executing the amended Agreement does not constitute a breach of TMC Media BV's obligations under the Agreement and is no ground for the Customer to terminate or (partially) dissolve or otherwise terminate the Agreement. TMC Media BV shall never be liable for any damages incurred by the Customer as a result thereof.
5. If a fixed fee has been agreed upon, TMC Media BV shall indicate to the Customer whether and to what extent the amendment or supplement to the Agreement will affect this fee. If no fixed fee has been agreed upon, the fee shall be calculated in the manner as stipulated in clause 6 paragraph 4.
6. Changes to an already awarded assignment may result in TMC Media BV exceeding the originally agreed delivery time. Article 5 paragraph 4 shall in that case apply accordingly.
7. Should TMC Media BV unexpectedly fail to meet its obligations within the agreed delivery time, TMC Media BV can only be declared in default in writing. Article 10 paragraph 11 shall then be applicable.
ARTICLE 6. FEES
1. The fee and any cost estimates shall be in Euros, always excluding VAT and any other levies by
the government. In addition to the agreed fee, the costs, expenses, travel expenses and costs of third parties engaged by TMC Media BV shall be for the account of the Customer.
2. If TMC Media BV considers it desirable, TMC Media BV is entitled to request the Customer to make a reasonable advance payment on the fee for the Services to be performed.
TMC Media BV is entitled to postpone the start of the Services until the advance payment has been made or sufficient security has been provided; this at the sole discretion of TMC Media BV.
3. The agreed fee is in no way dependent on the outcome or Results of the granted Services.
4. If the Customer and TMC Media BV have not agreed upon a fixed (periodic) fee, the fee shall be determined on the basis of the hourly rate multiplied by the time spent by TMC Media BV and increased by the costs incurred by TMC Media BV.
5. TMC Media BV is at all times entitled to increase the fee, without the Customer being in that case entitled to terminate the Agreement for that reason, if the increase of the price results from a power or obligation as a consequence of (amended) legislation or regulations or is caused by an increase of inter alia wages, third party costs or other circumstances, which could not reasonably have been foreseen at the time of entering into the Agreement.
6. Furthermore, TMC Media BV is entitled to increase the fee if during the performance of the Services as a result of circumstances beyond its control, it appears that the (scope of the) Services originally agreed upon were underestimated to such extent at the conclusion of the Agreement, that TMC
Media BV cannot reasonably be expected to perform the agreed Services for the originally agreed fee.
7. All travel and accommodation expenses and costs for, among other things - but not exclusively - the surrender of rights (music rights, image rights et cetera) shall be regarded as additional costs and shall be payable by the Principal separately, even if they are not mentioned in the offer or the Agreement. These costs will be added separately to the (final) invoice, provided with a specification. TMC Media BV is not obliged to hand over the physical underlying documents to the Principal. The fee for travelling by car amounts to 0.45 eurocent per kilometer, to be increased with VAT, as well as the reasonable parking costs incurred on behalf of the Customer. Reimbursement for the use of other means of transport shall amount to the actual travel expenses.
8. The Customer is obliged to reimburse all further reasonable expenses incurred by TMC Media BV for the performance of the Agreement.
9. The fee will be charged to the Customer periodically, per phase or after completion of the (related) Activities.
ARTICLE 7. PAYMENT
1. Payment shall always take place within 14 days after the invoice date, in a way to be indicated by TMC Media BV.
2. For Agreements with a value of more than € 1,000.00 or for assignments where TMC Media BV has to rent materials from third parties, purchase printed matter or otherwise incur costs from third parties, the Customer is obliged to make a down payment of at least 50% of the total amount of the Agreement within fourteen days after the conclusion of the Agreement. After 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 pay an invoice on time and/or in full, the Client shall be in default by operation of law. The Client shall then owe interest on the unpaid amount of 1% per month or part of a month, unless the statutory interest rate is higher, in which case the statutory interest rate shall be due. The interest on the amount due and payable will be calculated from the moment the Client is in default until the moment the amount due is paid in full
4. The Customer shall never be entitled to set off the amounts it owes to TMC Media BV. Objections against the amount of an invoice do not suspend the payment obligation. The Customer who is not entitled to invoke section 6.5.3 of the Dutch Civil Code (articles 231 to 247 Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
5. If the Client is in breach or default in the (timely) fulfillment of its obligations, then all reasonable (in and out of court) costs to obtain satisfaction out of court shall be borne by the Client. The extra-judicial costs shall be calculated on the basis of what is customary in the Dutch collection practice and amount to at least 15% of the amounts due. However, if TMC Media BV has incurred higher costs for collection which were reasonably necessary, the actual costs incurred shall be reimbursed by the Customer. Any judicial and execution costs incurred shall also be payable by the Customer. The Client shall also owe statutory interest on the collection costs due.
6. If the progress in the performance of the Services is delayed due to default or negligence on the part of the Customer or force majeure on its side, TMC Media BV is entitled to charge the full agreed amount and the Customer is obliged to pay that amount to TMC Media.
ARTICLE 8. DURATION AND TERMINATION OF AGREEMENTS
1. The Agreement shall be entered into for a definite term, unless it follows from its nature and purport that it is entered into for an indefinite term.
2. TMC Media BV and the Customer shall at all times be entitled to terminate an Agreement for an indefinite period of time by giving notice. A judicial intervention is not required. Such termination shall be effected by registered letter with due observance of a notice period of at least 1 (one) month.
3. A fixed term Agreement cannot be terminated prematurely, unless there are urgent circumstances as a result of which TMC Media BV or the Customer cannot reasonably be required to continue the Agreement. This must be motivated and notified to the other party in writing. All this without prejudice to the obligation of the Customer to pay the full agreed fee to TMC Media BV.
4. In addition, the Agreement can be terminated early by TMC Media BV pursuant to clause 3.5 of these conditions. In that case the Customer shall be obliged to compensate the costs incurred by TMC Media BV up to that moment, increased by 50% of the (remaining) agreed fee.
5. The Customer may terminate the Agreement with immediate effect if the increase of the fee by TMC Media BV as mentioned in clause 6.6 is higher than 10% of the agreed fee and the parties have not reached an agreement after consultation. If the aforementioned increase occurs within three months after the conclusion of the Agreement, the Customer may terminate the Agreement immediately regardless of the percentage of the increase.
6. If the Agreement is cancelled within 24 hours prior to the commencement of the Work, compensation will be charged at a rate of 50% of the quoted labor costs and 25% of the equipment costs. Costs for the cancellation of materials, equipment, freelancers and services hired by TMC Media BV shall be charged in full to the Customer in accordance with the terms and conditions of the relevant party.
7. If the Agreement is terminated prematurely by the Customer other than on the grounds mentioned in clauses 5 or 6, or if the Agreement is terminated prematurely by mutual consent, the Customer shall be obliged to pay the agreed fee, the (expenses) incurred by TMC and the damages (such as loss of capacity utilization and additional costs) that can be proven to have been incurred by TMC Media BV as a result of the premature termination of the Agreement, unless the cause of the premature termination of the Agreement is a shortcoming that can be attributed exclusively to TMC Media BV.
7. In the event the Customer becomes bankrupt, applies for a moratorium or ceases its business operations, TMC Media BV shall be entitled to terminate the Agreement immediately without notice, without prejudice to its other rights.
9. TMC Media BV is, without prejudice to its rights as stipulated elsewhere in these conditions, entitled to suspend the fulfilment of its obligations under the Agreement or to (partly) terminate the Agreement, if:
- the Customer does not, not fully or not timely comply with its obligations under the Agreement;
- after the conclusion of the Agreement TMC Media BV becomes aware of circumstances which give good ground to fear that the Customer will not (correctly) comply with its obligations;
- if at or after the conclusion of the Agreement the Customer is requested to provide security for the fulfilment of its obligations under the Agreement and this security is not provided or insufficient;
- if due to delays on the side of the Customer TMC Media BV can no longer be required to perform the Agreement against the originally agreed conditions.
10. TMC Media BV is also entitled to suspend the delivery of documents or other goods to the Customer or third parties, until all due and payable claims of TMC Media BV against the Customer have been paid in full.
11. If the Agreement is (partly) terminated, the claims of TMC Media BV against the Customer shall be immediately due and payable.
ARTICLE 9. VOICE-OVER/VOICE, MUSIC AND OTHER RIGHTS
1. The costs of voice-over(s) are part of the additional costs payable separately by the Customer and are not included in the quotation (price). Unless agreed otherwise in writing, TMC Media BV will add these costs separately to the (final) invoice.
2. For music which is used in a video production or online expression, the Principal has to pay a compensation for the rights to a copyright organisation such as Buma/Stemra, SENA, Stichting SYNC or a comparable organisation. The Client is at all times responsible for the registration, remuneration and payment of these copyrights and the supervision thereof.
3. The aforementioned copyright fees are additional costs, which are not included in the quotation and are payable separately by the Client. The amounts thus due shall be added to the (final) invoice.
4. TMC Media BV can provide an estimate of these costs upon request, but no rights can ever be derived from this estimate. The actual costs, determined by the relevant copyright organisation, shall be invoiced by TMC Media BV to the Principal afterwards and shall be paid by the Principal 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 obliged to fulfil any obligation towards the customer if it is hindered to do so as a result of a circumstance that is not due to any fault and which is not for its account by virtue of the law, a legal act or generally accepted practice.
2. In these general conditions Force Majeure shall, in addition to its definition in law and jurisprudence, mean all external causes, whether anticipated or not, which are beyond the control of TMC Media BV, but which prevent TMC Media BV from fulfilling its obligations. Force majeure includes the impossibility to perform the Agreement due to the impossibility of third parties engaged by TMC Media BV, as well as the impossibility for TMC Media BV due to
illness, strikes, disruptions of energy supplies, traffic disruptions, disruptions in transport and post and/or telecommunication, as well as disruptions in networks, infrastructure and computer hacking. The enumeration is not limitative.
3. TMC Media BV may suspend its obligations under the Agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties shall be entitled to terminate the Agreement, without any obligation to pay damages to the other party.
4. Insofar TMC Media BV already partly performed or will be able to partly perform its obligations by virtue of the Agreement at the time of the start of the Force Majeure Event, and insofar independent value can be attributed to the performed or to the to be performed part, TMC Media BV is entitled to separately invoice the Activities relating to the performed or to be performed part. The Customer shall pay this invoice as if it were a separate agreement.
ARTICLE 12. COMPLAINTS
1. The Customer is obliged to examine with due expedition after delivery of the service and/or delivery of goods whether TMC Media BV has properly fulfilled the Agreement and the Customer is furthermore obliged to immediately notify TMC Media BV in writing as soon as the contrary becomes apparent.
2. Complaints about the delivered Services must be notified in writing by the Customer to TMC Media BV in any event within 14 days after discovery, but at the latest within 30 days after delivery of the relevant service/item. The notice of default must contain a description of the shortcoming that is as detailed as possible, as well as a reasonable term
for repair, so that TMC Media BV is able to respond adequately.
3. If a complaint is well-founded, TMC Media BV shall still deliver the services/items as agreed upon, unless this is permanently impossible or the Customer has meanwhile decided not to do so because the delivery has become demonstrably meaningless. The Customer has to prove the latter in writing.
4. The performance of the Agreement shall be deemed between the parties to be satisfactory if the Customer has failed to timely perform the examination or notification referred to in paragraph 1 and/or paragraph 2 of this article.
5. The performance of TMC Media BV shall in any case be regarded between the parties as sound if the Customer has put the delivered goods or a part of the delivered goods to use, has treated or processed them, has delivered them to third parties or has had them put to use, has had them treated or processed or has had them delivered to third parties, also if the Customer has observed the provisions of paragraph 1 of this article.
6. If the subsequent performance of the agreed Activities or delivery of goods is no longer possible or useful, TMC Media BV shall only be liable if and to the extent in accordance with the provisions of clause 11.
ARTICLE 13. CONFIDENTIALITY
1. Unless any provision of law, regulation or other rule obliges it to do so, the parties are obliged to maintain confidentiality vis-à-vis third parties with respect to confidential information obtained from the other party. The providing party may grant an exemption in this regard. Information shall be considered confidential if it has been communicated by the providing party or if it arises from the nature of the information.
2. Except with the written consent of the providing party, the receiving party shall not be entitled to use the confidential information made available to it by the other party for a purpose other than that for which it was obtained. However, an exception to this shall be made in the event TMC Media BV acts on its own behalf in disciplinary, civil or criminal proceedings in which such information may be of importance.
3. Unless there is any mandatory statutory provision, which obliges the Customer to disclose or if TMC Media BV has given its prior consent to do so, the Customer shall not disclose the contents of reports, works, advice or other expressions of TMC Media BV, written or otherwise, to third parties.
ARTICLE 14. RETENTION OF TITLE AND PROPERTY OF THE CUSTOMER
1. All goods or Results created or delivered by TMC Media BV within the framework of the Agreement shall remain the property of TMC Media BV until the amounts due by the Customer have been paid in full and without prejudice to the provisions of clause 15.
2. TMC Media BV shall keep the goods entrusted to it by the Customer within the framework of the fulfilment of the Agreement with the care of a good custodian. However, TMC Media BV is not liable for damages to the entrusted goods and damages caused to (digital) files.
3. Without prejudice to TMC Media BV's rights in this respect, TMC Media BV shall store the film images or other works made for the Customer up to a maximum period of six (6) months. For an additional fee and if agreed upon in an agreement, TMC Media BV can store the created film images or other (digital) works for a longer period.
4. TMC Media BV is not responsible for the loss of film images or other works due to, but not limited to, unforeseen circumstances such as computer crashes, fire, burglary or other unforeseen situations.
5. TMC Media BV charges for the storage of the data per project, per 6 months an amount of 45 euros, which amounts shall be payable by the Customer in advance.
ARTICLE 15. INTELLECTUAL PROPERTY
1. All (claims to) intellectual or industrial property rights (such as e.g. patent rights, copyrights, neighboring rights, database rights, drawing and design rights), which can or shall be exercised - wherever and whenever - with respect to the Results shall belong to TMC Media B.V. and/or its licensors, both for the purpose of use and exploitation. Insofar as such a right can only be obtained by filing or registration, exclusively TMC Media B.V and/or its licensors shall be entitled to do so, unless otherwise agreed.
2. The Parties may agree that the rights referred to in the first paragraph are wholly or partly transferred to the Customer. This transfer and any conditions under which the transfer takes place will always be recorded in writing in a separate agreement. Until the moment of transfer, a right of use shall be granted as regulated in paragraph 3 of this article.
3. When the Customer has fully met and continues to meet its obligations under the agreement with TMC Media BV, it shall acquire the right to use the Result by itself in the Netherlands in accordance with the agreed destination. If no agreements are made regarding the destination, the right of use shall be limited to the one-time use of the Result, for which at the time of entering into the Agreement firm plans existed and for which the assignment was (apparently) given. These plans must be demonstrably disclosed to TMC Media BV prior to the conclusion of the Agreement.
4. Without written consent the Customer is not entitled to adapt, (re)use or perform the Result in a broader or different way than agreed upon, or to have this done by third parties. TMC Media BV may attach conditions to this permission, including the payment of a fair compensation.
5. Unless the Result does not lend itself for it, TMC Media BV shall at all times be entitled to mention or remove its name thereon. Without prior written consent the Customer is not allowed to use the Result without mentioning the name of TMC Media BV. The Customer shall comply with the instructions regarding the manner in which TMC Media is to mention its name and rights.
6. Unless explicitly agreed upon otherwise in writing, the Services do not include the performance of research into the existence of intellectual or industrial property rights (such as patent rights, trademark rights, trade name rights, author's rights, portrait rights, database rights, drawing rights, model rights and neighbouring rights) of third parties. The same applies to any investigation of the possibility of such forms of protection for Client.
7. The costs of licenses from third parties for the use of material protected by intellectual or industrial property rights to be used in the performance of the Agreement shall be at the expense and risk of the Client. Such protected material includes but is not limited to fonts, software, corporate identity elements, photographs, videos, stock images, databases, logos and compositions. The Customer is obliged to compensate these costs to TMC Media BV or to the relevant rightholders. The above also applies in respect of portrait rights of extras, interviewed or other persons or rights holders of a video production and image rights of for example buildings, works of art or locations.
8. TMC Media BV is free to use the Results for its own publicity, acquisition of commissions, promotion, including competitions and exhibitions etc., with due observance of the interests of the Customer and without any compensation being due in that respect.
9. By issuing an assignment to use, reproduce or publish any intellectual or industrial property rights, the Customer guarantees that no infringement is made on such third party rights and indemnifies TMC Media BV in and out of court against all consequences arising from the use, reproduction or publication.
ARTICLE 16. APPLICABLE LAW
1. All agreements between TMC Media BV and the Customer shall exclusively be governed by Dutch law. The possible applicability of the Vienna Sales Convention is explicitly excluded.
2. All disputes relating to or arising from (the interpretation and/or performance of) the Agreement shall be settled by the District Court of The Hague.
ARTICLE 17. LOCATION AND MODIFICATION OF CONDITIONS
1. These conditions have been filed at the Chamber of Commerce in The Hague and will be sent by TMC Media BV free of charge upon request. The conditions can also be consulted, copied and saved via the website www.TMCMedia.nl/algemenevoorwaarden.
2. Applicable is always the last filed version or the version valid at the time of the conclusion of the legal relation with TMC Media BV.
3. The Dutch text of the general conditions shall always be decisive for the interpretation thereof.
