Terms and conditions
GENERAL TERMS AND CONDITIONS 5PM JANUARY 2020
a. Agreement: the set of agreements between 5PM and the Client, as included in the Assignment and these Terms and Conditions;
b. Assignment: the quotation signed by the Client or the agreement signed by the Parties which includes the agreed Services and to which in both instances these Terms and Conditions apply;
c. Channel: all existing and future social media-channels that are managed or operated by or on behalf of the Client and/or under the Client’s trade name or its affiliates, which are required for the execution of the Assignment;
d. Client: the person or entity which has requested 5PM to execute the Agreement;
e. CMS: a Content Management System which automates the process of managing, presenting and publishing Content on the internet;
f. Content: images, whether or not supported by audio, text, pictures, video’s etc that are made available, published and/or reproduced by means of various distribution manners;
g. Google: Google Inc. or its affiliates, including but not limited to YouTube LLC and its successors and right holders;
h. Intellectual Property Rights: all intellectual property rights, including copyrights (auteursrechten), trademark rights (merkenrechten), patent rights (octrooirechten) and trade name rights (handelsnaamrechten), in respect of any work, including Content, documents, designs, computer software, customized software (maatwerkprogrammatuur) and/or other whether or not electronically recorded information.
i. Parties: 5PM and the Client together, and each being a ‘Party’;
j. Services: the services rendered by 5PM to the Client, as specified in writing in the Agreement;
k. Terms and Conditions: these general terms of conditions of 5PM
l. 5PM: the Dutch legal entity 5PM B.V. and every entity belonging to the 5PM-group in the sense of section 2:24b of the Dutch Civil Code that have declared to the other Party that these Terms and Conditions apply.
2. Applicability Terms and Conditions
2.1 These Terms and Conditions apply to all quotations, Assignments, Agreements (including any action plans) and all future agreements and contractual relations between the Parties.
2.2 The application of any of the Clients purchasing conditions or any other of its conditions is explicitly rejected.
2.3 Deviations and changes to these Terms and Conditions are only valid insofar as explicitly included in the Agreement.
2.4 The Client hereby confirms to have received the Terms and Conditions and to be familiar with its content.
2.5 5PM may make reasonable changes to these Terms and Conditions. These changes will become part of the Agreement one month after they have been declared applicable.
2.6 These Terms and Conditions are a translation of the Dutch Terms and Conditions, which are available at 5PM’s website. In case of any inconsistency between this version and the Dutch version, the latter will prevail.
3.1 5PM will duly execute its Services, in line with the specifications as included in the Assignment.
3.2 Insofar as required for the provision of the Services, the Client agrees that 5PM will be provided access to the management environment of the Channel, to enable it to perform its Services.
3.3 The Parties shall provide each other all cooperation and information, instructions, data and documentation in good time for the performance of the Agreement, and warrant that the information supplied is correct and complete. To this effect, the Client is obligated to transfer the unrestricted and unconditional management of the Channel’s CMS for the duration of the Agreement and cooperate with all formalities required for such transfer, e.g. by signing any for such purpose required covenants or agreements.
3.4 The Parties are each responsible to put in place appropriate control and security procedures, which include but are not limited to taking appropriate technical and organizational measure to prevent any unauthorized access to the software applications (whether or not from third parties and/or accessible through the internet), Channels, CMS, passwords, personal data and/or other data and materials. Furthermore, the Client undertakes to, with regard to Content and other (data)files made available by the Client, perform back up procedures in line with applicable standard and in such a way that recovery is possible with minimal effort.
3.5 Upon request, 5PM will update the Client regularly and in writing about its Services.
3.6 5PM is allowed to engage third parties to carry out its Services.
3.7 Unless agreed otherwise, 5PM shall perform the Services to the best of its abilities (inspanningsverplichting) without warranting a specific result (resultaatsverbintenis).
3.8 All terms stated by 5PM have been established to the best of its knowledge, based on the data known to 5PM when entering into the Agreement and they will be respected to the greatest extent possible. Any delivery dates and/or time limits stated in any Agreement, annex, action plan or quotation shall always apply as target dates, shall always be indicative and are not fatal deadlines (fatale termijnen) unless explicitly agreed otherwise. In all events, including if the Parties have explicitly agreed a final time limit in writing, 5PM shall only be in default (verzuim) after the Client has sent 5PM a written, proper and detailed notice of default (ingebrekestelling) and the reasonable term, that the Client has granted to 5PM to remedy the breach, has passed.
3.9 5PM shall not be bound to any time limits or delivery dates that can no longer be complied due to circumstances beyond 5PM’s control that have occurred after entering the Agreement . If any time limit threatens to be exceeded, 5PM and the Client shall consult with each other as soon as possible.
4. Delivery and Exit
4.1 The Client holds the Content and will make it available – whether or not through a third party – to 5PM in the digital format as indicated by 5PM.
4.2 Insofar as required for the execution of the Services, 5PM will use the management environment of the Channel and the CMS wherefrom the Client’s content is operated for the duration of the Agreement. Upon the termination for whatever reason of the Agreement, the Parties will ensure the full transfer of the Content’s (technical) management to the Client as soon as possible.
5.1 The applicable rates for the Services are excluding VAT and any possible travel and accommodation costs that are charged in line with clause 9.6.
5.2 Save for indexation, as outlined in clause 5.3, the rates cannot be adjusted unless agreed upon otherwise by Parties in writing.
5.3 5PM is entitled to annually adjust its rates, in accordance with the CBS Index for business services, monthly wages according to collective bargaining agreements , including special payments, SBI -2008: M-N, version with current figures (CBS index zakelijke dienstverlening, cao-Ionen per
maand, inclusief bijzondere beloningen, SBI 2008: M – N, versie huidige cijfers) or, in case of an alteration of this index, the most comparable index. The reference date for the data is 15th of August of the current year whereby the months June of the previous year and June of the current year are compared with each other.
5.4 5PM may only execute any additional work after prior consultation with the Client. Additional work means any work outside the content and scope of the work agreed upon in writing between the Parties. Additional work will be compensated in accordance with the agreed rates – and in the absence thereof in accordance with the customary rates of 5PM – and will only be invoiced after receiving the Client’s written order confirmation, with the next due invoice or upon completing the additional work.
6.1 The Agreement will have an initial term as set out in the Agreement.
6.2 The Agreement commences on the date on which it is signed by both Parties and ends, when notice is received in time, after the agreed period. The Parties will consult each other before the Agreement’s end date to discuss a possible renewal and its term. Unless agreed otherwise, the Agreement will be automatically renewed with one month if no timely notice has been given.
6.3 During the Agreement, the Parties shall have the right to give notice of termination of the Agreement by the end of its term.
7. Intellectual Property Rights
7.1 Unless agreed upon otherwise in writing, the Client holds the Intellectual Property Rights relating to the Content.
7.2 Intellectual Property Rights developed by 5PM specifically for the Client shall be vested in 5PM, who assigns these rights with future effect to the Client as soon as the Client has fulfilled all the related invoices. To the extent possible, 5PM assigns all its personal rights (persoonlijkheidsrechten) with regards to such work. To the extent that the assignment of the personal rights is not possible, 5PM will waive its rights, insofar as legally allowed. If and insofar as required, 5PM will cooperate during and after the Agreement in enabling the Client to obtain all the rights as specified in this clause, to register it on the Client’s name and to enforce it against third parties.
7.3 The Client grants 5PM a worldwide, royalty free, non-exclusive license to use the Intellectual Property Rights (including the Content, trademarks and logo’s) that are made available to 5PM under the Agreement. Such license provides 5PM the unlimited use of (parts of) the Content to perform the Services.
7.4 5PM acknowledges that the Intellectual Property Rights of the logo’s and trademarks that are made available by the Client will remain vested in the Client. 5PM warrants that it will not infringe any of these rights and that it will use the materials made available to it solely for the execution of the Agreement.
7.5 The Client indemnifies 5PM against all claims by third parties relating to a (claimed) infringement by such third parties of the Intellectual Property Rights that are made available to 5PM by the Client (including comparable claims relating to knowledge, unfair competition and the like). At 5PM’s first request, the Client will take over the defence of any legal proceedings relating to such claims, of which existence 5PM will notify the Client as soon as possible and for which 5PM will provide the Client all the required powers of attorney and assistance. Furthermore, the Client indemnifies 5PM for all damages and costs awarded against 5PM in such legal proceedings, including any attorney’s fees.
7.6 All Intellectual Property Rights (other than those referred to under clause 7.1 up to and including clause 7.4) which are not made available by the Client and which 5PM uses to provide its Services, including, but not limited to, software made available by 5PM and video formats which are not specifically created for the Client, will remain vested in 5PM or its licensors. The Client shall have no title or ownership therein. Any licenses provided by 5PM to the Client over such Intellectual Property Rights, are non-exclusive, non-assignable, cannot be sublicensed and are provided for the duration of the Agreement only.
8.1 If the Client’s Content contains any music, the Client warrants that it will have paid all applicable contributions to third parties (including copyrights and neighbouring rights holders) regarding the publication, reproduction and synchronisation of such music. Furthermore, the Client ensures that all relevant information regarding such music are, without 5PM’s involvement, provided to the responsible collective rights organisations (such as BUMA/STEMRA and SENA) in a correct and timely manner. The Client fully indemnifies 5PM for all third party claims (including from claims from the responsible collective rights organisations such as BUMA/STEMRA and SENA) that relate to providing such information in a correct and timely manner.
9.1 5PM has consultants who, if agreed upon, provide consultancy services. This clause determines the applicable conditions, which are further specified in the Agreement.
9.2 Under certain occasion and as part of the Services, it is possible that 5PM needs to implement or provide certain client specific technical services for the agreed software. The principle of the implementation is that it is a joint effort by 5PM and the Client and the success of the implementation depend on the degree of cooperation and proper information provided by the Client. The Parties acknowledge that the implementation is an interactive and dynamic process wherein adjustments may occur in timing. Parties will actively attempt to achieve the agreed milestones.
9.3 To provide it Services, 5PM is entitled in the broadest sense of the word to promote the Content, Channel or the Client through all media and/or other means of promotion, including by publishing or reproducing (whether by itself or through a third party) video and audio-visual material (like pictures) and texts relating to the Content and the Channel. To this effect, 5PM is entitled to edit the Content and/or the Channel.
9.4 By signing the Agreement, the Client provides 5PM, with due observance of the Agreement, with a license for the unrestricted use of the Client’s name and logo for the purpose of promotion, marketing and publicity. ‘Media’ includes radio, programme guides, newspapers, magazines, promotion material, internet and internet related applications (so called digital extensions) and telecommunication services.
9.5 Upon prior notification, 5PM is allowed to replace any employees involved in carrying out the Services. If the Client has reasonable objections to the replacement of the employee(s), the Parties will consult with each other on a suitable alternative.
9.6 Unless explicitly agreed in the Agreement, the costs for travel and accommodation, additional hours and other special costs relating to the services under the Agreement are not included in the applicable rates and prices and will therefore be invoiced separately. Insofar as such costs, with the exception of travel costs in the Netherlands, are not included in the applicable rates, they can only be invoiced separately by 5PM upon prior written conformation by the Client. Any travels costs
made in the Netherlands (not being commuting expenses) will be invoiced separately for the amount of EUR 0,19 per kilometre, excluding VAT.
10. Invoicing and payments
10.1 In case of an Assignment which according to the Agreement will be executed within 3 months, 5PM will invoice in advance 50% of the aggregate, agreed amount excluding any subsequent fees and the remainder, including insofar as applicable any subsequent fees, when the Assignment is completed.
10.2 In case of an Assignment which according to the Agreement will be executed in more than 3 months, 5PM will invoice the pro-rated fees during or after each related month.
10.3 All invoices must meet the requirements of article 35 of the 1968 legislation on turnover tax. Furthermore, they need to include the following information:
a. (legal) name, address and domicile of the Client;
b. Contact person;
c. Cost centre / department (provided by the contact person);
d. the Client’s number with the Dutch Chamber of Commerce;
e. the Client’s VAT number;
f. bank account number of 5PM, including its IBAN number and the SWIFT or BIC-code;
g. the period to which the invoice relates.
10.4 The Client will pay all invoices within 30 days after the invoice date.
10.5 If the Client fails to pay any amounts owed within the agreed payment term, it will be in default and it will owe to 5PM the statutory interest rate on the outstanding amount as per the moment of default until the amounts are settled.
10.6 5PM is entitled to set off any amounts owed to it by the Client against any outstanding amounts which 5PM owes to the Client.
11.1 The Parties shall have the right to terminate the Agreement with immediate effect, without any notice of default (ingebrekestelling) being required and without this creating any obligation to compensate any damages or losses of the Parties, if any of the following circumstances occurs:
a. the other Party is declared bankrupt (failliet verklaard);
b. temporary or permanent suspension of payment (surseance van betaling) is granted to the other Party;
c. the enterprise of the other Party is liquidated or a request thereto has been submitted;
d. the enterprise of the other Party is discontinued.
11.2 5PM is entitled to terminate the Agreement with immediate effect if the Client is obligated to cease using its Content or its Channel. The aforementioned shall not limit 5PM’s right to claim damages.
11.3 Notwithstanding the termination possibilities under clauses 11.1 and 11.2, 5PM is entitled to terminate the Agreement upon written notice with immediate effect, without any obligation to compensate any damages to the Client, if the Client does not comply with the warranties and the indemnities as set out in clause 15.
11.4 Termination on the basis of this clause is communicated by registered letter to the other Party, with reference to the legal basis of the termination.
11.5 In the case of dissolution (ontbinding), such dissolution will only affect the obligations arising after the dissolution date and therefore the dissolution will not have any retroactive effect.
11.6 Any rights and duties from the Agreement which by their nature and content are intended to remain in effect, such as Intellectual Property Rights, liability, force majeure and dispute resolution, shall remain in full effect after termination or dissolution (ontbinding) of the Agreement
12.1 During the term of the Agreement and thereafter, the Parties will keep secret all confidential information that has come to their knowledge and in no way disclose and/or make available such information to third parties and only use the confidential information for the purpose for which it was made available. Third parties include all persons that work for or on behalf of a Party who do not have a need to know such information. The following is regarded as confidential information in the sense of these Terms and Conditions:
a. all information disclosed verbally, in writing, or directly or indirectly made available in any other way, which is indicated to be confidential and/or of which the other Party knows or should reasonably know that it is confidential;
b. all product, marketing, customer, and/or other business intelligence which is indicated to be confidential or of which the other Party knows or should reasonably know that it is confidential, irrespective of how it was disclosed;
c. all other documentation, data, drawings, benchmarks, tests, test data, specification, object codes, source codes, production methods, technologies and/or other information developed by a Party which is indicated to be confidential and/or of which the other Party knows or should reasonably know that it is confidential, irrespective of how it was disclosed;
d. each copy in whichever form of the foregoing.
12.2 The Parties’ obligations do not apply in case of confidential information if the receiving Party can show that (i) it is generally acknowledged or available within the public domain (unless it has become available due to any unauthorized disclosure by the receiving Party) or (ii) was in the possession of the receiving Party before its disclosure hereunder and had not previously been obtained under an obligation of confidentiality.
13.1 5PM and the Client are each responsible for their respective obligations under any applicable law and regulation regarding the protection of personal data, and specifically the General Data Protection Regulation. Insofar as relating to 5PM’s compliance, reference is made to the privacy statement available on its website.
14. Warranties and indemnities
14.1 The Client acknowledges that it is responsible for the Content on the Channel and warrants that (i) it will not infringe any legal provision or infringe what in accordance with any written or unwritten law, regulation or guideline is generally considered appropriate (including that the Content will not contain any sexist, pornographic, racist and/or discriminatory information or statements that are insulting, defamatory or offensive) (ii) it will not infringe the privacy and/or the private life of others or infringe any rights of third parties (iii) the Client holds all the rights to publish the Content and warrants that all contributions to any possible third party right holders have been made regarding the use of the Content in accordance with the Agreement (iv) it complies with Google’s guidelines and conditions and (v) the (use of) Content is in no other way unlawful against any third parties.
14.2 The Client indemnifies 5PM for all third party claims arising out of the infringement of any of its obligations or warranties (including by any third party engaged by it) under this Agreement. The
Client will compensate any damages, costs (including legal fees) and interest incurred by 5PM as a consequence of such infringements.
15.1 5PM performs its Services with the greatest extent of care as possible. 5PM is only liable for any shortcomings if the Client can demonstrate that 5PM has severally infringed its duty of care. If 5PM is liable for not or incorrectly performing its duties, its liability is limited to direct damages or loss only and an amount equal to the amount paid by the Client to 5PM pursuant to the Agreement in the three months preceding the fact that caused the damage or loss, or, if lower, the amount relating to the part of the Assignment that was not or incorrectly performed. In this regard, a series of mutually related events that cause damage or loss shall be considered as one event and one fact causing the damage or loss.
15.2 5PM shall not be liable for any indirect damage or loss, including, without limitation, loss of profit, loss of data, claims from third parties, fines, penalties or additional tax demands (naheffingen), lost income or lost savings, reputational damage, damage due to any loss (whether temporary or not), disappearance, change or corruption of any material, files or information, whether tangible, visual, auditory or otherwise made available by the Client or any other third parties or any other indirect damage or loss or consequential damage (gevolgschade) or loss resulting from or in connection with any failure by 5PM to comply with an obligation or in connection with any unlawful act.
15.3 The previous paragraphs of this article shall not apply if and insofar as such damage or loss was caused by 5PM’s deliberate intent (opzet) or willful recklessness (bewuste roekeloosheid).
16. Force Majeure
16.1 In the event of force majeure (overmacht) affecting one of the Parties, the obligations pursuant to the Agreement shall be suspended for as long as the situation of force majeure lasts. Any non-conformance by Google, Facebook and other suppliers of 5PM shall also be considered as force majeure. However, the suspension shall not apply to the obligations that the force majeure does not concern and/or the obligations that already occurred before the situation of force majeure came into being.
16.2 If the situation of force majeure has lasted for more than sixty (60) days, the Parties will be entitled to terminate the Agreement by means of a registered letter, unless it is foreseeable that the situation of force majeure will be resolved within a reasonable period of time. Anything that already has been performed as a result of the Agreement shall then be settled pro rata, without the Parties owing each other anything else.
17. Assignment and subcontracting
17.1 The Parties are not entitled to transfer the rights from the Agreement to a third party without the other Party’s prior written consent.
17.2 Notwithstanding the previous paragraph, 5PM is entitled to engage third parties to perform its obligations under the Agreement (including but not limited to a newly established to which 5PM transfers its activities). In such case 5PM will remain responsible for the execution of the Agreement.
18.1 Changes to the terms and conditions of the Agreement may only be agreed between the Parties in writing. If the Parties have agreed in writing to certain changes, those changes only apply for the assignment for which it was specifically agreed.
18.2 If any of the provisions of the Agreement is null and void (nietig) or is declared null and void (vernietigd), this shall be without prejudice to the legal effect of the other provisions. In such case the Parties will discuss the replacement of such provision by a new provision, taking into account the aim and purpose of the null and void provision insofar as possible.
18.3 When entering into the Agreement, the Parties expressly do not intent to establish a partnership or a legal entity or any other entity relevant under applicable company law.
18.4 Clauses 7:400 of the Dutch Civil Code (DCC) apply to the Agreement, unless deviated thereof in the Agreement. The application of clause 7:408 subsection 1 DCC is explicitly excluded.
18.5 The Agreement and its execution shall be governed by Dutch law. Any and all disputes arising as a result of or in connection with an agreement between the Parties will, insofar as it cannot be amicably solved, be exclusively submitted to the competent court in Amsterdam.