General Terms and Conditions Friends of the Brands
Article 1. Definitions
FOTB: the private company with limited liability under Dutch law Friends of the Brands B.V., with registered office at Burgemeester Haspelslaan 39, 1181 NB, Amstelveen, registered with the trade register under number 59859415.
Client: any individual, entity or legal person that uses or wishes to use the services of FOTB, including advertisers, sponsors and other companies or organizations who wish to promote their brands, products and/or services.
Agreement: the agreement between FOTB and Client (hereinafter jointly also referred to as “parties”), with regard to an Event and all related services by FOTB, to which these General Terms and Conditions apply.
Event: event (co-) organized by FOTB that is aimed at the connection of brands with celebrities or influential persons, with the purpose to generate positive publicity for the Client(s) of FOTB.
General Terms and Conditions: these terms, published on the website of FOTB (www.friendsofthebrands.com).
Article 2. Applicability
- The General Terms and Conditions apply to the offers of FOTB and to all Agreements, Events and other services of FOTB for its Client(s).
- Any deviation of or change in the General Terms and Conditions requires the prior written approval of FOTB.
Article 3. Offers
- All offers made by FOTB are non-binding and are valid for 14 days, unless explicitly stated otherwise. FOTB is only bound by an offer if it has been accepted in writing within this 14 days’ period or within any other mutually agreed term.
- The acceptance of an offer shall not oblige FOTB to perform part of the offer for a proportional part of the price of the offer.
- FOTB shall only be bound by the acceptance of an offer if the offer is accepted unchanged and unconditionally. Any acceptance that deviates from an offer shall not lead to the conclusion of an Agreement.
- Any offer made by FOTB shall be without prejudice for any future assignments.
Article 4. Performance of the Agreement
- FOTB will perform the services assigned to it with due care and in accordance with the industry standards.
- In order to achieve the results wanted by the parties FOTB (also) depends on third parties, including media, suppliers and third parties). Therefore, FOTB will have the obligation under the Agreement to use its best efforts and FOTB does not guarantee that its efforts will lead to the desired results.
- If and to the extent necessary for the proper performance of the Agreement, FOTB has the right to assign the services in full or in part to third parties as subcontractors. FOTB will inform Client hereof in advance or at least as soon as reasonably possible.
- If the Event and/or the services of FOTB take place at the location of the Client or at a location designated by the Client, the Client will be responsible for providing all necessary and desired facilities at its own cost.
Article 5. Change of the Agreement
- If it turns out during the performance of the Agreement that in order to perform the Agreement properly it is necessary to change or add to the services or the nature or scope of the Agreement, the parties will consult with each other and change or add the Agreement accordingly.
- FOTB will inform Client in due time about the consequences of an agreed change of the Agreement, for example with regard to the time of finalizing the performance or any financial or quality related consequences.
Article 6. Obligations of Client
- Client is responsible for providing FOTB or third parties designated by FOTB, free of charge and in due time, with all information and/or materials in the desired form, that are required by FOTB or of which Client should reasonably understand that they are necessary to perform the Agreement. If Client fails to comply with this obligation FOTB has the right to suspend its performance of the Agreement and/or to charge Client for the extra costs due to the delay.
- If Client provides FOTB with information carriers, electronic files or software, Client warrants that these information carriers, electronic files or software are free from viruses or faults.
- Client guarantees that the information and/or materials provided to FOTB by it can be freely used for the performance of the Agreement and for the purpose for which they were meant according to Client’s reasonable understanding. Client indemnifies FOTB and holds it harmless for all claims by third parties with regard to any alleged infringement of intellectual property rights and for any other claims in relation to the materials or information provided by Client, that are being used for the performance of the Agreement.
Article 7. Fee
- The fee of FOTB may consist of a fixed amount and/or a compensation based on results achieved. If no fixed fee is agreed, the fee will be determined on the basis of the number of hours spent and the applicable hourly rate. Payable costs and fees will be invoiced and paid in accordance with any specific agreement between the parties, failing which the payable amount will be invoiced on a monthly basis.
- All prices mentioned by FOTB are exclusive of vat and other government levies, and also exclusive of any costs that are incurred in relation to the Agreement (including mail and handling costs and third party costs).
- If the parties agree on a fixed fee, FOTB is entitled to increase the fee or rate if:
- FOTB can demonstrate that prices have significantly raised since the offer and the time of the performance of the Agreement, or
- it appears during the performance of the Agreement that the originally agreed or expected amount of work was estimated too low, to the extent that it would be unreasonable to demand FOTB to perform the work against the original fee.
- FOTB will inform Client in writing of the intended increase of the fee in due time, including the scope and start date of the increase. If Client objects to this increase of the fee by registered and motivated letter to FOTB within 14 days after the date of this notification, FOTB has the choice to either dissolve the Agreement or to perform the Agreement against the original fee.
Article 8. Payment
- All invoices of FOTB must be paid within 14 days after the date of the invoice, unless an alternative payment term is agreed.
- Payments must be made in time, without delay or setting off, by bank transfer to the bank account of FOTB as mentioned in the invoice.
- At first request of FOTB Client will provide sufficient security for the performance of its current and future obligations towards FOTB. Client will add or replace any existing security at FOTB first request if in FOTB’s opinion it is no longer sufficient.
Article 9. Consequences of late payment
- In the event Client has not paid any amount due to FOTB in time or in full, FOTB is entitled to fully or partly suspend or not perform its services, without prejudice to the right of FOTB to (partly) dissolve the Agreement, without any letter of default or notification to Client being required. As a result thereof Client will not have any claim towards FOTB whatsoever and the rights of FOTB towards Client shall not be restricted in any way. In particular the right of FOTB to the fee as determined in the Agreement shall remain unaffected.
- If Client is in default with any of its payment obligations to FOTB (including any instalments), Client will be automatically in default by law without any (further) letter of summons or notification is required.
- If Client is in default, and in case of (preliminary) suspension of payments or bankruptcy of Client, all amounts indebted by Client to FOTB will become immediately payable, without any letter of summons or notification is required.
- If Client fails to make any outstanding payment to FOTB in time, Client will pay, from the due date to the date of full payment, without any notification or summoning being required, an interest to FOTB of 5% per month, unless the statutory interest of clause 6:119a Dutch Civil Code is higher, which will in that event apply. For the purpose of calculating the interest, a part of month is deemed to be an entire month.
- If Client fails to pay any outstanding amount to FOTB in time and/or in full, all costs, in and out of court, incurred by FOTB as a result thereof, shall be for Client who shall reimburse these costs at FOTB’s first request. The out of court debt collection costs of FOTB shall be 15% of the outstanding amount with a minimum of € 500,- ex vat, without prejudice to the right of FOTB to claim its (legal) costs from Client, including but not limited to the fees of its lawyer, representative and bailiff.
Article 10. Term of the Agreement
- The Agreement between FOTB and Client or any other counterpart is entered into for the term of the project, unless the nature of the agreement implies otherwise or unless the parties agree otherwise in writing.
- The failure to meet any agreed planning or term for the completion or performance of certain activities during the term shall not constitute a breach of contract by itself. A written notification, with a reasonable term to comply, is required before FOTB shall be in default under the Agreement.
Article 11. Notice of Termination
- The Agreement cannot be terminated by Client by giving notice.
- Without prejudice to any of its rights, FOTB may terminate the Agreement at all times under observance of a reasonable notice period, without being liable to Client for any damages. In that event Client shall pay the agreed fee pro rata parte to the part of the work that has already been carried out, unless that would be unacceptable under the specific circumstances. At Client’s request FOTB will cooperate with an assignment of the remaining work to a third party, provided the resulting costs will be charged to Client.
Article 12. Intellectual Property Rights
- All intellectual property rights to the concept, the name, the design and the execution of the Events are exclusively owned by FOTB and/or any of its licensors. Client shall not use any of the FOTB rights without the explicit prior written approval of FOTB. Any permission granted by FOTB to Client or third parties to use (part of) the rights of FOTB is always non-exclusive, non-assignable and does not include the right to grant sublicenses. All rights that have not been explicitly granted are reserved by FOTB.
- Without prejudice to any of the other terms, Client warrants that the use for the Event by FOTB and its contractors, of the trademarks, trade names, logo’s, writings, pictures, products and/or services of Client or of third parties represented by it, is allowed and will not constitute an infringement of any third party rights. Client holds FOTB free and harmless of all claims by third parties and will fully indemnify and compensate FOTB for all costs including all legal fees.
- Client grants FOTB an unlimited, free and non-exclusive license to use of the name and logo of Client and to publish all audiovisual recordings and photographs made by or on behalf of Client with regard to the Event, on the website of FOTB, its social media channels and/or as part of any (other) promotional communications for FOTB. At the request of Client FOTB will establish a hyperlink from its website to the website of Client.
Article 13. Image Rights
- If FOTB would confirm in any way that during the Event photo and/or video recordings can be made, Client remains fully and solely responsible to obtain the necessary permission for making audiovisual recordings or photographs and for the publication and copying thereof, including the use of the name, portrait, voice, likeness and other characteristic elements of any persons visiting the Event.
- Without any limitation of the previous paragraph, Client may refer to the Event in an editorial, non-commercial way, for example on its website, newsletter or social media, as part of an editorial report of the Event. It is the sole responsibility of Client to decide if it requires the permission for this use from any persons that are portrayed and/or quoted. Client holds FOTB free and harmless of all claims by third parties and will fully indemnify and compensate FOTB for all costs including all legal fees.
- FOTB shall not be liable if any permission granted to Client, by a portrayed or quoted person, for the use of his portrait, quote, name, performance or else, is revoked of becomes invalid for any reason, unless FOTB is responsible that the permission is revoked or has become invalid, without prejudice to article 17.
Article 14. Default of FOTB
- If Client is of the opinion, for whatever reason, that FOTB has failed to perform (part of) its obligations under the Agreement, it must send a written notification to FOTB as soon as possible. This notification must contain a description as detailed as possible of the alleged failure to perform the obligation of the Agreement, in order to enable FOTB to make an adequate response.
- If Client fails to notify FOTB in writing within 5 days after discovery of the alleged failure to perform or at least within 10 days after completion of the services concerned, any and all claims of Client shall have lapsed.
Article 15. Force Majeure FOTB
- Without prejudice to the rights of FOTB under the Dutch Civil Code, force majeure on the part of FOTB shall include any circumstance that is beyond the control of FOTB, and that was unforeseeable at the time of the conclusion of the Agreement, as a result of which it cannot be expected from FOTB within reason, temporarily or not, to perform any of its obligations under the Agreement.
- Force majeure includes the situation that the performance of its obligations under the Agreement would in FOTB’s reasonable opinion cause a conflict of interest with any other client of FOTB.
- If the situation that causes force majeure for FOTB continues for more than 30 days, FOTB has the right to dissolve the Agreement entirely or only for the part that is affected by the force majeure, by sending a written notification to Client. Client will in that event not be entitled to any damages.
Article 16. Suspension and Dissolution
- FOTB is entitled to suspend the performance of its obligations or to dissolve the Agreement, without any liability as a result, if:
- Client fails to perform its obligations under the Agreement in part or in full;
- FOTB has good reasons to believe, after the conclusion of the Agreement, that Client will not perform its obligations;
- Client fails to provide any or sufficient security for the performance of its obligations under the Agreement that was requested at the time of entering into the Agreement.
- Furthermore, FOTB has the right to dissolve the Agreement in case of circumstances that make it impossible for FOTB, or, under which it cannot reasonably and in all fairness be expected from FOTB, to perform its obligations under the terms of the Agreement.
- In case of dissolution of the Agreement all payments by Client to FOTB shall be immediately payable. The suspension by FOTB of the performance of its obligations shall be without prejudice to its rights under the law and the Agreement.
- FOTB reserves the right at all times to demand performance of the Agreement and/or to claim further or alternative damages.
Article 17. Liability
- Any liability of FOTB is limited to compensation of the direct damages up to a maximum of the amount that is paid out in the matter concerned under the liability insurance of FOTB. If for any reason no (full) payment under the insurance should be made, the compensation of direct damages is limited to a maximum of 50% of the amount (excluding vat) that has been invoiced by FOTB to Client for the Agreement concerned.
- Direct damages only mean, reasonable costs:
- To determine the cause and scope of the damage, to the extent this relates to damages as referred to in these terms and conditions;
- That are made to remedy the failure of FOTB to perform, unless such failure cannot be attributed to FOTB;
- That are made to prevent or limit damages, provided and to the extent Client proves these costs have led to a limitation of damages as referred to under these terms and conditions.
- FOTB shall not be liable for indirect damages, including consequential damages, lost profits and damage caused by failure to operate a business. The limitation of liability under this clause shall not apply in the event of willful intent or gross neglect by FOTB or its management.
- FOTB is not liable for damaged, missing or stolen goods that were made available to FOTB for the purpose of the Event.
Article 18. Confidentiality
- The parties shall keep all confidential information that is received under the Agreement from the other party or from any other source strictly confidential. Information shall be deemed confidential if it was marked confidential or if its confidential nature should have been reasonably clear to the receiving party.
- If FOTB is forced to disclose any confidential information, based on the law or on a court decision, to a third party indicated by the law or the court, FOTB shall not be liable for any damages as a result thereof and Client shall not have the right to dissolve the Agreement for that reason.
Article 19. Privacy
- In processing personal data Client shall strictly comply with the applicable laws and regulations, in particular the EU General Data Protection Resolution. If and to the extent FOTB acts as processor of personal data that are owned by Client, Client shall be responsible towards FOTB and third parties to carefully comply with all statutory obligations with regard to the processing of those personal data. Client holds FOTB free and harmless of all claims of third parties that are related to the failure of Client, or of any third parties hired by it, to (properly) perform the laws and regulation with regard to the protection of personal data.
- If and to the extent FOTB makes personal data available to Client during the course of an Event, Client is under the obligation to strictly comply with its legal duties as processor of these data, which includes the obligation to enter into a processor agreement at FOTB’s first request.
Article 20. Competent Court and Applicable Law
- Any disputes that may arise between Client and FOTB shall exclusively be submitted to the court in Amsterdam, without prejudice to the right of FOTB to submit a dispute to the court that has jurisdiction under the Dutch Law on Civil Proceedings.
- These terms and conditions and the Agreement are exclusively construed in accordance with Dutch law.