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ALGEMENE VOORWAARDEN

Friends of the Brands heeft de volgende algemene voorwaarden. Neem bij vragen vrijblijvend contact op.

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ARTICLE 1. DEFINITIONS

FOTB: the private limited liability company Friends of the Brands B.V., having its registered office in
(1181 NB) Amstelveen, the Netherlands, at Burgemeester Haspelslaan 39, registered with the trade
register under number 59859415.

Client: every natural person or legal entity that enters into an agreement or wishes to enter into an
agreement for the use of the Services of FOTB.

Agreement: the agreement between FOTB and the Client relating to the Services of FOTB and any
amendment thereto.

Services: the services rendered by FOTB to the Client for the promotion of the Client’s brands and/or
products, including but not limited to Influencer Marketing, Campaigns, brand strategy, social media
strategy and Events.

Influencer: the person identified in the Agreement that is hired by FOTB to promote the Client’s brands
and products by creating and publishing audio-visual posts on his or her social media channels.

Campaign: any promotional, marketing or advertising campaign, including any influencer marketing,
for the Client (co-)organized by FOTB as part of the Services.

Event: any event for the Client (co-)organized by FOTB as part of the Services.

General Terms and Conditions: these terms and conditions, which are published on the FOTB website
(www.friendsofthebrands.nl).

ARTICLE 2. APPLICABILITY

  1. The General Terms and Conditions apply to FOTB’s quotations and to all Agreements with regard to the Services provided by FOTB.
  2. Any deviations from the General Terms and Conditions are only valid if they have been agreed in writing with FOTB.
  3. Any general terms and conditions of the Client, under whatever name, do not apply to the Agreement.
  4. FOTB is entitled to amend the General Terms and Conditions from time to time, which amendment will take effect as of the date of publication thereof on the FOTB website. Unless the Client objects in writing to FOTB within thirty (30) days after publication against the proposed amendment, the Client will be deemed to have accepted the new General Terms and Conditions.

ARTICLE 3. QUOTATIONS

  1. FOTB’s quotations are without obligation and are valid for fourteen (14) days, unless otherwise indicated. FOTB will only be bound by the offer if it is accepted in writing within fourteen (14) days or an agreed different period.
  2. A quotation that consists of multiple parts does not oblige FOTB to carry out part of the Services for a corresponding part of the quoted price.
  3. If the acceptance (also on minor points) deviates from the offer included in the quotation, FOTB is not bound by it. The Agreement will then not be concluded in accordance with this deviating acceptance.
  4. No rights from quotations can be derived for future assignments for Services.

ARTICLE 4. EXECUTION OF AGREEMENT

  1. FOTB shall carry out the Services assigned to it to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
  2. If FOTB fails to meet an agreed deadline for the execution of any of the Services, FOTB will not automatically be in breach of the Agreement. In such event, FOTB and the Client will use their best efforts to agree on an alternative time schedule. If no such agreement can be reached, the Client will allow FOTB a reasonable period of time given the circumstances to render the Services. FOTB is (partly) dependent on third parties (including media, influencers, suppliers and third parties) to achieve the results intended by the parties. For this reason, FOTB only has an obligation to perform to the best of its ability under any Agreement to be concluded with FOTB. It follows from this that FOTB does not guarantee that the efforts made by it will lead to the desired result.
  3. If and in so far as that is in FOTB’s reasonable opinion required for the proper execution of the Agreement, FOTB has the right to outsource all or part of the Services to third parties. FOTB will inform the Client of any outsourcing of all Services in advance, or at least as soon as possible.
  4. If the Services take place at and/or are carried out at the Client’s location or at a location designated by the Client, the Client will provide FOTB with the facilities reasonably required and desired by FOTB free of charge.

ARTICLE 5. AMENDMENT OF THE AGREEMENT

  1. If during the execution of the Agreement it appears that it is necessary in FOTB’s reasonable opinion for a proper execution of the Services to be carried out or the nature and scope of the agreement to modify or supplement, FOTB and the Client will timely and in mutual consultation adjust the Agreement accordingly.
  2. FOTB is entitled to unilaterally amend the Agreement by changing the date and/or location of an Event within reasonable limits (whereby a new date within two (2) months of the agreed date and of a new location within a radius of fiftly (50) kilometers of the agreed location is deemed to be
    reasonable).
  3. FOTB will inform the Client in a timely manner about the consequences of an amendment to the Agreement as referred to in paragraph 5.1, for example with regard to the time of completion of the execution or any financial or qualitative consequences, to the effect that the Client will not be
    surprised with any additional costs.

ARTICLE 6. OBLIGATION TO PROVIDE INFORMATION

  1. The Client will ensure that all information and/or materials which FOTB indicates are necessary or which the Client should reasonably understand are necessary for the execution of the Agreement are provided to FOTB or the third parties designated by it, free of charge, on time and in the desired format and/or file. If the information and/or materials required for the execution of the Agreement are not provided on time or free of charge, FOTB will be entitled to suspend the execution of the Agreement and/or to charge the additional costs resulting from the delay to the Client.
  2. If the Client provides FOTB with information carriers, electronic files or software etcetera, the Client guarantees that the information carriers, electronic files or software are free of viruses and defects.
  3. The Client guarantees that the information and/or materials made available by it to FOTB can be freely used by FOTB in the execution of the Agreement for the purpose for which the Client could reasonably understand that they were intended. The Client indemnifies FOTB against claims of third parties with regard to any alleged infringement of intellectual property rights and for other claims in connection with materials or information provided by the Client, which are used in the execution of the Agreement.

ARTICLE 7. FEE

  1. FOTB’s fee for the Services (“Fee”) will be specified in the Agreement and may consist of a fixed amount and/or compensation based on results achieved. If no (fixed) Fee is agreed upon, the Fee will be determined on the basis of hours spent at the then current hourly rate of the FOTB staff. Costs and fees due will be invoiced as agreed upon, paid and, if nothing else has been agreed upon, invoiced on a monthly basis. If the Client is using an agency for the campaign, there will be no deduction of any agency fee from the Fee and the Client will pay any such agency separately to its  agency.
  2. All prices quoted by FOTB are exclusive of VAT and other government levies, as well as any costs to be incurred and necessarily made in the context of the Agreement (including shipping and administrative costs and costs for third parties). These third party and/or out-of-pocket costs will be charged based on the actual prices at the time of performance of the agreement.
  3. FOTB will be entitled to increase the Fee during the term of the Agreement if: a. FOTB can demonstrate that between the time of the offer and the execution of the Agreement the costs for third parties and for raw materials, energy and other costs to be incurred by FOTB in rendering the Services, have increased significantly, or
    b. during the execution of the Services, it appears that the originally agreed or expected amount of work was so insufficiently estimated when the Agreement was concluded that FOTB cannot reasonably be expected to perform the Services for the fee originally agreed upon.
  4. FOTB will notify the Client in writing of its intention to increase the fee as referred to in the previous paragraph. If the Client objects in writing to the increase of the Fee within fourteen (14) days, FOTB will have the choice to dissolve the Agreement or to execute the Agreement against the original Fee. If the Agreement is dissolved by FOTB, it will be entitled to a pro rata payment of the agreed Fee for the part of the Services that has already been executed.

ARTICLE 8. PAYMENT

  1. Invoices relating to the Fee and/or for goods delivered by FOTB to the Client or to any third parties at the Client’s request, must be paid by the Client within fourteen (14) days of the invoice date, unless another term of payment has been agreed upon in the Agreement.
  2. Payments must be made in a timely manner, without any suspension or set-off, by transfer to the bank account of FOTB mentioned in the invoice.
  3. At FOTB’s first request, the Client is obliged to provide sufficient security for the fulfilment of its existing and future obligations towards FOTB. If, in FOTB’s reasonable opinion, a security provided by the Client has become insufficient, the Client will be obliged, upon FOTB’s first request, to supplement or replace the security already provided.

ARTICLE 9. CONSEQUENCES OF LATE PAYMENT

  1. If the Client fails to make any payment when due to FOTB, FOTB will have the right to suspend its Services and of any other activities in whole or in part until the payment, with any payable interest and costs, is made or to cancel the Services entirely. This is without prejudice to FOTB’s right to
    (partially) dissolve the Agreement and furthermore without any reminder or notice of default or notification thereof to the Client being required. The Client will not have any claim whatsoever against FOTB in this respect and the rights of FOTB towards the Client pursuant to the Agreement
    will not be restricted in any way whatsoever as a result. In particular, FOTB will remain fully entitled to the Fee stipulated in the Agreement.
  2. If the Client fails to make any payment to FOTB (including instalment payments) on time and/or in full, the Client is in default towards FOTB by operation of law, without any reminder or (further) notice of default being required.
  3. In the event that the Client is in breach of any of its contractual obligations towards FOTB, or in the event of a (provisional) suspension of payments or bankruptcy of the Client, all amounts owed by the Client to FOTB will become immediately due and payable in full, without any summons or
    notice of default being required.
  4. In the event of late payment of any amount owed by the Client to FOTB, the Client will owe FOTB, without any summons or notice of default being required, an interest compensation of five percent (5%) per month from the due date until the date of full payment of the outstanding amount. When
    calculating the interest compensation, part of a month will be counted as a whole month.
  5. In the event of late and/or incomplete payment of the Fee and any other amount owed by the Client to FOTB, all costs incurred by FOTB as a result, both judicial and extrajudicial, will be for the account of the Client, who will reimburse FOTB at the latter’s first request. FOTB’s extrajudicial collection costs will amount to fifteen percent (15%) of the amount owed, with a minimum of five hundred euros (€ 500,-) excluding VAT. This is without prejudice to FOTB’s right to full payment of any additional (legal) costs incurred for the collection of its claims against the Client, including the
    costs of its lawyer, agent, bailiff, etc.

ARTICLE 10. INFLUENCER MARKETING

  1. FOTB will make the Influencer available as part of the Services, but the Client accepts that FOTB cannot be held liable in the event that the Influencer is temporarily of definitely unavailable. If the Influencer is unavailable for the Services, FOTB will have the right to propose an alternative
    person as influencer for the Campaign and the Client will not reject the proposed alternative on unreasonable grounds.
  2. Unless agreed otherwise, the fee of the Influencer is included in the Fee. If the fee of the Influencer is included in the Fee, FOTB will be responsible for any taxes and social security payments in relation to the fee of the Influencer and FOTB will indemnify the Client from any claims in that respect. If the fee of the Influencer is not included in the Fee and the Client pays the fee of the Influencer directly, the Client will be responsible for any taxes and social security payments in relation to the fee of the Influencer and the Client will indemnify FOTB from any claims in that respect.
  3. The Influencer will be contractually bound by FOTB to act as brand ambassador for the Client and to create and publish the agreed number of social media posts, to attend the agreed events and to use his/her best efforts to promote the Client’s brand and/or products. The Client accepts that FOTB may not be able to enforce the contractual obligations of the Influencer and that the only remedy of the Client in the event of any failure by the  Influencer to do so will be financial compensation.
  4. FOTB is not responsible for and does not guarantee the number of followers of the Influencer and/or the number of his/her subscriptions or followers on his/her social media channels.
  5. In the event of any change of circumstances that may affect the reputation of the Influencer and his/her ability to be part of a Campaign, the Client may request FOTB to replace the Influencer with an alternative person. If the proposed alternative person is not acceptable for the Client based on reasonable grounds, the Client and FOTB may terminate the Agreement with immediate effect and without incurring any liability. In such event all costs made by FOTB and a pro rata part of the Fee will be invoiced by FOTB and paid by the Client.

ARTICLE 11. CAMPAIGNS

  1. FOTB will present and submit a Campaign to the Client for its approval. If the Services include the creation of marketing and/or advertising materials (“Materials”), FOTB will submit the Materials to the Client for its approval. If the Client demonstrates that the Campaign and/or the Materials is/are not in agreement with the agreed briefing by the Client, FOTB will make the necessary amendments free of charge. Any other changes requested by the Client will be charged against FOTB’s standard fees. Any goal of a Campaign is always on the basis of best efforts and without a guarantee for a certain result.
  2. The Client acknowledges that the value of the contribution by the Influencer to a Campaign is in part determined by his/her independent position and his/her credibility with the target groups. Therefore, the social media posts (“Posts”) by the Influencer will be in accordance with the agreed
    set-up of the Campaign, but unless agreed otherwise will not be submitted to the Client in advance and the editorial responsibility for the Posts lies with the Influencer.
  3. The Influencer will tag and include the name of the Client and of the brand or product in his/her Posts in the agreed and/or customary way (for example @[name client] and #[product or slogan]). The Posts will be created by the Influencer for the campaign and will not have been posted and/or used before for any other brand.
  4. In the Agreement the dates and locations of any live events that will be attended by the Influencer will be specified. Any change of date and/or location will be communicated to the Client as soon as possible. In such case, the Client and FOTB will mutually agree on the new date and/or
    location taking into consideration the availability of the Influencer.
  5. If any shoot for a Post or for other purpose or an event that requires the cooperation or attendance of the Client is cancelled by the Client, all third-party costs that cannot be cancelled will be paid by the Client. The Client will pay the agreed fee for FOTB, including the Influencer’s fee, unless the
    cancellation was more than thirty (30) days in advance and the Influencer is able to find alternative work on these dates. FOTB will not be liable if a shoot or event is cancelled due to the Influencer’s illness or any serious family circumstances.
  6. FOTB cannot be held responsible for the continued availability of the Posts on the social media channels. If a Post is removed or the account of Influencer would be blocked, FOTB will immediately inform the Client and will use its best efforts to restore the Post and/or the account as
    soon as possible.
  7. FOTB will provide the Client free of charge with screenshots from all Posts after publication and with the statistics of the posts that are freely and easily available from the social media channels. FOTB is not responsible for the accuracy of such data.

ARTICLE 12. TERM AND TERMINATION

  1. The Agreement between FOTB and the Client is entered into for the agreed term or, if no term is agreed upon, for the duration of the Campaign and/or the Event.
  2. The Client will not have the right to dissolve or terminate the Agreement on any grounds before the end of the term.
  3. FOTB may terminate the Agreement at any time with due observance of a reasonable notice period, without the Client being able to claim any compensation in any form whatsoever. In that case, the Client will owe the agreed fee in proportion to the Services already carried out. At the request of the Client and if and to the extent possible, FOTB may lend its cooperation to a transfer of the Services still to be performed to a third party, whereby the resulting costs will be charged to the Client.
  4. In the event of cancellation by the Client of a Campaign or an Event, the Client shall owe a cancellation fee of fifty percent (50%) of the agreed Fee in the event of cancellation up to six (6) months before the start of the Campaign or the Event. In the event of cancellation thereafter, the Client shall owe a cancellation fee of one hundred percent (100%) of the agreed Fee.

ARTICLE 13. INTELLECTUAL PROPERTY RIGHTS

  1. All worldwide intellectual property rights of FOTB to a Campaign and an Event, and its concept, name, design and Materials and Posts, including but not limited to copyrights, neighboring rights, design rights, trademark rights, patents, database rights, trade secrets (“IP Rights”), are vested
    exclusively in FOTB, and its licensors if any. The Client is not permitted to make any use of the Materials and Posts and the IP Rights without FOTB’s express prior written consent. Any license from FOTB to the Client or third parties to use (part of) the IP Rights will always be non-exclusive, non-transferable and will not include the right to grant sub-licenses. All IP Rights for which no express right of use has been granted are reserved by FOTB.
  2. In the event of an agreed buy-out of IP Rights the Client will have the sole and exclusive right to use the Materials and the Posts without limitation and for all media during the agreed term of the buy-out, provided that the Client is required to submit to FOTB for its prior approval a media plan
    that describes the intended use of the Materials by the Client in detail. FOTB’s approval will not be unreasonably withheld or delayed.
  3. Without prejudice to the other provisions of these terms and conditions, the Client guarantees that the use by FOTB and any of its subcontractors including the influencer(s), for the purpose of the Services, of the brands, trade names, logos, texts, images, products and/or services of the Client,
    or the third parties represented by it, is permitted and does not infringe any rights of third parties. The Client indemnifies FOTB and its subcontractors including the influencer(s) against all claims of third parties and will fully compensate FOTB in this respect, including the full costs of legal assistance.
  4. Subject to Client’s approval not to be unreasonably withheld or delayed, the Client grants FOTB an unrestricted, free of charge and non-exclusive right of use to publish and reproduce the name and logo of the Client and all image and/or sound material made by or on behalf of the Client in
    relation to a Campaign or to an Event via the website of FOTB, social media channels and/or in the context of (other) promotional communications via means on behalf of FOTB.
  5. FOTB is allowed to use all Materials and Posts created for the Client in rendering the Services, including the Client’s name and logo, for FOTB’s own marketing and PR purposes as part of its portfolio free of charge for an indefinite period of time.

ARTICLE 14. IMAGE RIGHTS OF EVENTS

  1. The responsibility for obtaining permission to make image and/or sound recordings and to make them public and reproduce them, including the use of the name, portrait, voice, likeness and other characteristic elements of the persons present during an Event, lies entirely and solely with the Client.
  2. The Client shall be free to make editorial, non-commercial announcements, for example via its website, newsletter or social media, in which reference is made to Event. It is the sole responsibility of the Client to determine whether it requires permission from the person(s) portrayed and/or quoted for this use and the Client shall indemnify FOTB against all possible claims in this respect and shall compensate FOTB in full, including the full  costs of legal assistance.
  3. If the consent obtained by the Client, whether or not through the mediation of FOTB, from a person portrayed or quoted for the use of his portrait, quotation, name, performance or otherwise, is withdrawn or declared invalid for any reason whatsoever, FOTB cannot be held liable by the Client for this, unless this withdrawal or invalidity can be attributed to FOTB and without prejudice to the provisions of article 17 (limitation of liability).

ARTICLE 15. BREACH OF CONTRACT

  1. If, for whatever reason, the Client is of the opinion that FOTB does not properly perform (part of) its obligations under the Agreement, it must send a written notice of default to FOTB as soon as possible. The notice of default must include a description of the alleged breach of contract in as much detail as possible, so that FOTB is able to respond adequately.
  2. If the Client has not given written notice of default within five (5) days after discovery of the alleged breach or at the latest within ten (10) days after  completion of the Services concerned, all possible claims of Client will lapse.
  3. A failure to perform its contractual obligations (including in the event of force majeure) on the part of FOTB does not give the Client the right to dissolve the Agreement in whole or in part. This means that, subject to the previous paragraph, the sole legal remedies of the Client will be to claim performance of the Agreement and/or damages.

ARTICLE 16. FORCE MAJEURE

  1. Force majeure on the part of FOTB includes any circumstance beyond FOTB’s control, whether or not foreseeable at the time the Agreement was concluded, as a result of which the performance of FOTB’s obligations under the Agreement is temporarily or permanently prevented, or must reasonably be regarded as too onerous for FOTB, including strikes, natural disasters, breakdowns, pandemics and ensuing government measures, and any failures on the part of a supplier or subcontractor. In the event of force majeure, FOTB may suspend the fulfilment of its obligations for a reasonable period to be determined by FOTB and, after consultation with the Client, determine a new date and/or location for the execution of the Services. During the period that FOTB has suspended its obligations due to force majeure, the Client will remain obliged to fulfil its obligations.
    2. If the circumstance causing force majeure for FOTB lasts longer than thirty (30) days, FOTB will have the right to dissolve the Agreement in its entirety or with regard to the obligations affected by force majeure by means of a written notification to the Client, without the Client being able to  claim any compensation in any form whatsoever.

ARTICLE 17. SUSPENSION AND DISSOLUTION

  1. FOTB is entitled to suspend the fulfilment of its obligations and/or to dissolve the Agreement, without being obliged to pay any compensation in the event that:
    a. Client does not or not fully comply with its obligations under the agreement;
    b. Circumstances brought to FOTB’s attention after the conclusion of the Agreement give FOTB good reason to fear that the Client will not fulfil its obligations;
    c. Client was requested to provide security for the fulfilment of its obligations under the Agreement when the Agreement was concluded and this security is not provided or insufficient.
  2. FOTB will furthermore be entitled to dissolve the agreement if circumstances arise of such a nature that fulfilment of the agreement is impossible or can no longer be demanded of it according to standards of reasonableness and fairness, or if other circumstances arise of such a nature that FOTB cannot reasonably be expected to maintain the agreement unaltered.
  3. If the Agreement is dissolved by FOTB, its claims against the Client will be immediately due and payable. If the Client has already paid the Fee and all costs at the time of dissolution by FOTB, this paragraph will have no effect. If FOTB suspends fulfilment of the obligations, it will retain its claims under the law and the Agreement.
  4. FOTB reserves the right at all times to claim compliance of the Agreement and/or additional or replacement damages.

ARTICLE 18. LIABILITY

  1. Any liability on the part of FOTB or any of its subcontractors including the Influencer towards the Client or third parties shall be limited to compensation for direct damages up to the amount paid out by FOTB’s professional liability insurance in the matter concerned, minus the deductible. If, for whatever reason, no (full) payment under the said insurance would be made, any liability of FOTB for damages will be limited to a maximum of 50% of the Fee (excluding VAT) paid by the Client under the Agreement in the three months’ period preceding the event that caused the alleged
    damages.
  2. FOTB will under no circumstance be liable for any indirect damages, including consequential damages, loss of profits and damages due to temporary or permanent close of business.
  3. The limitation of FOTB’s liability set out in this clause 18 will not apply in the event of intent or gross negligence on the part of FOTB.
  4. FOTB is not liable for damage, loss or theft of goods made available to FOTB by the Client for the purpose of a Campaign or an Event. The Client will be responsible to keep such goods properly insured.

ARTICLE 19. CONFIDENTIAL INFORMATION

  1. FOTB and the Client, as well as the Influencer, both their contractors and employees, will not disclose to any third party in any way and will treat as confidential all information that they have obtained from each other or from another source in the context of their co-operation under the Agreement that is deemed to be confidential. Information is deemed to be confidential if the other party has been informed that the information provided by it must be treated confidentially or if this could reasonably be inferred from the nature of the information.

ARTICLE 20. COMPLIANCE

  1. FOTB will be responsible and liable for the compliance of the Campaign and the Posts by the Influencer with all applicable legislation and regulations in the Netherlands. FOTB will instruct the Influencer accordingly.
  2. FOTB will not be responsible and liable for any violation or breach that is caused by any action or omission by the Client.
  3. The Client will be responsible and liable for the compliance of its products with all applicable legislation and regulations, including but not limited to commodity law, data protection, product liability, competition law, service and warranty.
  4. In the execution of the Services FOTB will comply with the applicable law with regard to the protection of personal data including the General Data Protection Regulation (GDPR) and any related legislation and regulations. At FOTB’s first request the Client will sign a data processing agreement with FOTB in the form FOTB sees fit.

ARTICLE 21. EXCLUSIVITY

  1. Unless agreed otherwise, the Services will during the term of the Agreement be on an exclusive basis and the Client will not engage in any other similar campaigns during that term, by itself or commissioned to a third party.
  2. The Client will not, directly or indirectly, during the term and for twenty four (24) months thereafter, hire the services of the Influencer for any kind of marketing campaign or promotional activities, without FOTB’s prior written approval.
  3. The Agreement will not restrict FOTB in any way to render any services to any third party, including direct competitors of the Client and for similar products.

ARTICLE 22. MISCELLANEOUS

  1. FOTB may assign the Agreement, in whole or in part, to any party, and the Agreement will inure to the benefit of FOTB’s successors, licensees and assignees. The Client will have no right to assign the Agreement or any part thereof without FOTB’s prior written consent.
  2. The Agreement, together with its annexes, constitutes the entire agreement and understanding of the Client and FOTB and supersedes and replaces all negotiations and understandings, whether written or oral, between them relating to the subject matter thereof.
  3. These General Terms and Conditions and the Agreement may not be amended, waived or cancelled, in whole or in part, in any way, except by an instrument in writing executed by the Client and FOTB.
  4. In the event that any provision of these General Terms and Conditions or of the Agreement is held to be invalid, void or illegal, in whole or in part, it will be deemed severed therefrom, to the minimum extent necessary to eliminate its invalidity, voidness or illegality. This severance will not affect, impair or invalidate any other provision therein contained.
  5. The Agreement and these General Terms and Conditions are exclusively governed by Dutch law. Any dispute between the Client and FOTB that cannot be settled amicably will be submitted to the competent Court in Amsterdam, the Netherlands.