GENERAL TERMS AND CONDITIONS – FILMOTECHNIC REMOTE SYSTEMS BV
- These general terms and conditions apply to all legal relationships between Filmotechnic Remote Systems BV or by any other natural or legal people or companies authorized by Filmotechnic Remote Systems that uses these terms and conditions (hereinafter Filmotechnic) and its Clients, or between Filmotechnic and other natural or legal persons, including third parties within the meaning of Article 3.1 below, with whom Filmotechnic enters into an agreement.
- The legal relationships referred to in Article 1.1. are understood to mean, among other things, all proposals, commitments (both contractual and prescribed by law, including commitments arising from contracts for professional services), additional contracts and subsequent contracts and any communications (written, electronic and oral).
- A contract is hereafter understood to mean, among other things, any other legal relationship under an agreement as referred to in Article 1.2 of these general terms and conditions, to the extent that this other legal relationship is not covered by the provisions of Article 7:404 CC.
- Applicability of the general terms and conditions or other terms or conditions of a client and/or any other contracting party of Filmotechnic as defined in Article 1.1, is explicitly rejected.
Conclusion of agreements
- An agreement between Filmotechnic and a Client arises when a client commissions work and Filmotechnic accepts it. Assignments are accepted and executed by Filmotechnic with the exclusion of Article 7:404 and Article 7:407 paragraph two of the Civil Code (hereinafter “CC”), unless there are explicit and written agreements between the parties. All Filmotechnic’s assignments will be accepted and executed for the Client only. No other party except the Client can derive any rights from the assignment and its implementation.
- Filmotechnic’s quotes and (assignment) contracts are based on information provided by the Client. The Client guarantees that he has provided in good faith all vital information for the design and execution of the assignment. Filmotechnic will perform the commissioned work to the best of its ability and in accordance with the requirements of good workmanship. This requirement has the nature of a commitment.
- Filmotechnic is free in the performance of its assignments for Clients to hire third parties, including, but not limited to Independent Entrepreneurs as defined in Article four of these terms and conditions, or other natural people (such as third party employees hired by Filmotechnic), legal entities or other third parties (hereinafter referred to as Third Parties), and/or to involve them in the carrying out of its activities in connection with an assignment for its Clients.
- The Client has the obligation and ultimate responsibility to ensure that the third parties hired, should at all times work in a safe working environment satisfying the legal health and safety regulations. The Client will ensure that this always remains the case, and that the necessary (safety) regulations will be provided to the engaged third parties, and will (continue) to take all reasonable measures to make sure that the third parties engaged should not be exposed to a higher degree of risk and/or sustain damage during the performance of work.
- Filmotechnic will not be liable to the Client and/or Third Parties for damage sustained by the Third Parties in the course of their activities or for damage caused by them in connection with the agreed work, whether or not because of the use of the equipment as defined in Article 5.1 of these terms and conditions, including but not limited to damage as a result of (i) death of Third Parties, (ii) (injury) damage to Third Parties, (iii) damage caused by Third Parties to the employees of the Client and/or other persons employed at the Client’s site, and (iv) damage caused by Third Parties to company property and/or other movable assets and property and/or registered property of the Client, its employees and/or other third parties, except if such damage is the result of wilful misconduct or recklessness on the part of Filmotechnic. The Client indemnifies Filmotechnic for all the claims from Third Parties in this respect, including but not limited to claims of Third Parties under Article 7:658 CC.
- The Clients shall always arrange an adequate insurance so any damage as referred to in Article 3.3. will be adequately insured, provided that such an insurance should have a minimum coverage of € 1,500,000 per claim.
- All freelancers hired by Filmotechnic and/or legal people and/or other hired entities (hereinafter Independent Entrepreneurs) perform their work for Filmotechnic under a contract for professional services with Filmotechnic within the meaning of Article 7:400 CC. The Independent Entrepreneurs benefit from commercial profits and emphatically declare that they have not concluded an employment contract with Filmotechnic within the meaning of Article 7:610 CC, or a derivative contract, nor that they had such a contract with Filmotechnic in mind.
- The Independent Entrepreneurs – insofar as they are subject to the Dutch tax regime – are at all times obliged to provide Filmotechnic with a valid Declaration of Independent Contractor Status and will provide Filmotechnic with a copy thereof prior to the commencement of work. Failure to provide and/or not being in possession of a valid Declaration of Independent Contractor Status at Filmotechnic’s first request entitles Filmotechnic to immediately terminate the contract with the Independent Contractor without any financial compensation from Filmotechnic.
- The Independent Entrepreneurs indemnify Filmotechnic against all Third Party claims, in particular by the tax authorities and the Labour Inspectorate, related to having (had) an employment contract between Filmotechnic and the relevant Independent Entrepreneur, or the termination thereof, including, but not limited to claims in connection with failure to pay or an insufficient payment of social security contributions, income tax, (health and safety sound) design of the work environment, unless such damage is the result of wilful misconduct or gross negligence on the part of Filmotechnic. This disclaimer applies equally to claims of Dutch or foreign authorities, governments or third parties.
- Unless otherwise agreed, the Independent Entrepreneur may not during the validity of a contract between Filmotechnic and the Independent Entrepreneur, and for a period of one year after the termination thereof, in any form or nature whatsoever, whether or not in return for payment, engage in direct or indirect business relations (regardless of who takes the initiative) with companies and/or (legal) people who, at the time of involving an Independent Entrepreneur, to a Client of Filmotechnic. In case of violation of the provisions of this Article the Independent Entrepreneur will pay Filmotechnic immediately and without further demand, notice or judicial intervention, a fine of € 10,000 per violation, plus € 1,000 for each day that the offense continues, without prejudice to the Filmotechnic’s right to claim the actual damage suffered in such a case.
- If Filmotechnic rents out to its Client(s) movable assets, including, but not limited to a Russian Arm with accessories and/or Flight Heads (hereinafter the Equipment), whether or not through a Third Party, or otherwise makes it available (whether or not against payment), the risk of using this Equipment always passes to the Client from the moment Filmotechnic makes the Equipment available to the Client.
- The Equipment is considered to have been made available in the meaning of Article 5.1 from the moment it is moved from its location.
- The Client accepts the (transport) costs, including for the delivery and return of the Equipment, and the related risks, unless otherwise agreed. The Client should always inspect the supplied Equipment upon delivery for any defects.
- The Client can only use the Equipment (excluding any Third Parties) in and for its own company at the agreed location/place, in accordance with the agreed purposes and period. The Equipment is and remains at all times the property of Filmotechnic, or (where appropriate) of its suppliers. The right of use of the Equipment is not transferable and can never lead to ownership, or any derived security right thereof by the Client, or any other Third Party. The Client is not allowed to sublease the equipment to a Third Party or provide it for any other form of use.
- The Client will at all times handle the Equipment with proper care, use it carefully and always keep it supervised (i.e. not leaving it unattended) and must at all times ensure that the equipment when not in use should be stored in a secure and locked area.
- The Client declares that the Equipment will only be used for contract-related work by people working in its company, or self-employed people with whom the Client has signed a contract, who have proven knowledge and experience (and relevant expertise) of operating the Equipment, in particular the Russian Arm.
- The Client must return the Equipment in good condition to Filmotechnic upon completion of the relevant assignment or at the first request by Filmotechnic. The transport costs are at all times borne by the Client, unless otherwise agreed, see also Article 5.3 above.
- The Client will take effective and timely action to prevent damage to the Equipment. The Client will immediately inform Filmotechnic of any damage to the Equipment. The Client is liable for all damage to the Equipment (also in case of force major, storms, etc.), including but not limited to damage sustained during its use (including assembly, installation and dismantling), and for the loss and/or theft thereof, unless such damage is deliberate or a result of conscious recklessness on the part of Filmotechnic.
- The Client indemnifies Filmotechnic for all claims by Third Parties relating to the use of the Equipment, including claims for death or injury, loss of revenue, unless such damage is deliberate or a result of conscious recklessness on the part of Filmotechnic.
- The Clients should always arrange adequate insurance so that any damage to the Equipment, or loss and/or theft thereof, should be sufficiently covered, where adequate insurance means an insurance policy covering all amounts at the replacement value as mentioned in Filmotechnic’s quote, with a minimum coverage of € 350,000 (three hundred and fifty thousand euros). Such insurance should cover the Equipment from the moment of its being made available as defined in Article 5.2 of these general terms and conditions until its return to the Filmotechnic’s site, or any other place designated by Filmotechnic.
- The Client must always ensure that Filmotechnic is named on the insurance policy to be taken out by the Client, as stated in paragraph 10. The Client will provide Filmotechnic at the first request with a copy of the policy conditions, confirming that this is the case, accompanied by proof that the (relevant) equipment is insured.
Fees and costs of the assignment
- Unless otherwise agreed in writing or digitally, Filmotechnic will carry out its work on an hourly basis at an agreed hourly rate, with a minimum of 10 hours. If no rate has been agreed, then the last rate used by the parties applies, or, in the absence thereof, the standard market rate. Any travel time is charged at the above hourly rate. Any additional costs related to the assignment in question, such as travel and accommodation costs, are not included in the hourly rate. Filmotechnic is entitled to charge these additional costs to the Client. Filmotechnic may carry out the assignment in stages and invoice the work done separately. Filmotechnic may request an advance from the Client. Both fees and costs can be settled by advance payment.
- Because of the demand for the Equipment, the Russian Arm and Flight Heads in particular, Filmotechnic may charge the rental fee of the Equipment for the hours (expressed in hours, days or otherwise) already agreed with the Client, if the Client cancels the relevant assignment for its own reasons, to a minimum of 24 hours.
- Filmotechnic reserves the right to raise its rates if Filmotechnic’s costs increase due to circumstances beyond its control, including but not limited to an increase in costs of Third Parties hired by Filmotechnic, fuel and energy prices.
Filmotechnic will timely inform the Client of such increases. Notwithstanding the foregoing, Filmotechnic may at any time index its rates annually, according to the CBS price index.
- Unless otherwise agreed in writing, Filmotechnic’s invoices must be paid in full within 14 days of the invoice date. After the expiry of this term, the Client will be in default. If timely payment is not made the Client owes Filmotechnic the statutory default interest pursuant to Article 6:119a CC from the due date of the invoice until the date of full payment thereof. In that case the Client also owes Filmotechnic all extrajudicial costs, including but not limited to all (lawyer’s) costs and/or bailiff fees in connection with the judicial recovery of overdue claims (or portions thereof).
- Filmotechnic may suspend its work at any time if the Client fails to comply with one or more provisions of these general terms and conditions or if it is reasonably foreseeable that the Client will not comply. If, in the Client’s view, Filmotechnic has failed to properly perform its work, the Client has to inform Filmotechnic in writing stating the reasons within 14 days of the date.
When the Client discovered this defect or can reasonably be deemed to have discovered it, in the absence of which the Client can no longer make any claims regarding the alleged defect.
Change of scope of assignment, or additional work
- The Client accepts that the timing of the assignment may be affected if the parties agree to change the approach, method or scope of the assignment and/or expand the resulting work. If the interim change affects the agreed fee or expense reimbursements, Filmotechnic will inform the Client as soon as possible after becoming aware thereof. In case of an interim change to the assignment or execution of the assignment caused by the Client’s actions, Filmotechnic will make the necessary adjustments if the quality of the service requires this. If an adjustment results in additional work, the associated costs are borne by the Client. If circumstances lead to a longer (rental) period and/or assignment than the initial period agreed between the parties and the associated (hourly) rate, Filmotechnic may charge additional (rental) fees, which the Client will then owe to Filmotechnic in proportion to the earlier agreed price.
Duration and completion of the assignment
- The duration of the assignment can, apart from the efforts of Filmotechnic, be affected by many factors, such as the quality of the information Filmotechnic receives and the cooperation granted by the Client. Filmotechnic is not liable for any (longer) turnaround time for carrying out the assignment. The assignment is completed when the final invoice has been paid by the Client.
- All intellectual property rights arising from a contract between Filmotechnic and the Client belong to Filmotechnic, unless otherwise agreed. All models, techniques and tools, including software used for the execution of the assignment are and remain the (intellectual) property of Filmotechnic. The use thereof by the Client is only permitted upon written consent from Filmotechnic.
- Notwithstanding the matters provided for in Article 3.3. and Article 5.8. Filmotechnic will not be liable for indirect damage, including but not limited to consequential loss, loss of film production time, loss of revenue and damage to movable assets of the Client and/or other Third Parties (including damage to movable assets and property and/or registered property, on which Filmotechnic’s Equipment is mounted). The Client indemnifies Filmotechnic against all claims from Third Parties arising from or in connection with an instruction given by the Client to Filmotechnic.
- Any liability of Filmotechnic is limited to the amount covered by Filmotechnic’s insurance in such a case. If this does not provide any cover and/or no amount is paid, the damage is limited to the agreed fee (without costs and VAT) paid for the last completed assignment. If Filmotechnic’s insurance does not provide cover and/or no payment is made and if nothing has been invoiced yet by Filmotechnic, any liability of Filmotechnic is limited to an amount of € 10,000 (ten thousand euros) per event.
- Each Client must take all reasonable measures to limit the damage for which Filmotechnic is liable. The Client is obliged to adequately insure (“all risk”) the activities he performs or will perform (including insuring any Equipment made available to him and the Third Parties as mentioned above) and that are related to the assignment granted to Filmotechnic. Filmotechnic is not liable for damages that (i) are not covered by an insurance, while this would have been the case if the Client had adequately insured itself, and (ii) has occurred or become worse because the Client has not observed his damage limitation obligation, as intended in this Article.
- Filmotechnic must be notified in writing of its liability by a Client or a Third Party within seven days of it becoming known to the party holding Filmotechnic liable, so that Filmotechnic can inform its insurer and, where necessary, investigate the circumstances of the facts on which the liability claim is based. The potential adverse consequences or additional costs of failure to comply with this period (such as damage because of the inability to take protective measures and/or the collection of evidence concerning the actual events) will be borne by the party holding Filmotechnic liable. If a liability claim has not been communicated to Filmotechnic within a period not exceeding two months after the damage became known, any potential liability of Filmotechnic will lapse because the liability claim has not been communicated within the reasonable period of time as referred to in Article 6:89 CC.
Waiver of rights
- The Client hereby waives it has right to settlement or deferment. The Client also waives his right to have prejudgment attachment levied on (i) Filmotechnic or (ii) on itself.
Versions and language of general terms and conditions
- The most recently communicated version of these general terms and conditions will always apply, unless the Client has objected to the application of one or more of the provisions in these terms and conditions, or any amendment thereof, within two weeks of receipt.
- In case of dispute about the interpretation of these general terms and conditions, the Dutch text shall prevail.
Applicable law and choice of court
- These general terms and conditions and all obligations (both contractual and resulting from the law) that arise out of or are related to these general terms and conditions are subject to Dutch law only.
- All disputes arising from or relating to these general terms and conditions, including disputes concerning the existence or validity thereof, and all obligations (both contractual and resulting from the law) that arise from or are related to these general terms and conditions will in the first instance be exclusively (thus excluding any other courts) submitted to the competent judge in Amsterdam.
This is a free translation. In case of litigation, will the Dutch wording prevail.