A. General Provisions
Article 1. Definitions
When terms are written with a capital letter in these General Terms and Conditions, they shall have the following meaning:
1. General Terms and Conditions: these general terms and conditions of STUDIO FRM.
2. STUDIO FRM: located in Amsterdam and registered with the Chamber of Commerce under number 80152449.
3. Client: any natural or legal person with whom STUDIO FRM enters into an Agreement, to whom STUDIO FRM has issued a Quotation, made an offer, assumed a commitment, or with whom STUDIO FRM is negotiating the conclusion of an Agreement.
4. Quotation: an offer made by STUDIO FRM to the Client for a specific assignment, briefly describing the services, the prices charged, any additional fees, and supplementary arrangements, as well as any services not included in the price.
5. Framework Agreement: n agreement between STUDIO FRM and the Client entered into with the intention that the Client will provide multiple assignments to STUDIO FRM over an extended period.
6. Agreement: the entirety of arrangements between STUDIO FRM and the Client, as set out in a written (Framework) Agreement and/or Quotation, of which these General Terms and Conditions always form an integral part.
7. References to the singular include the plural and vice versa.
8. “Written” means by (registered) letter, email, or other electronic means of communication (including WhatsApp or Slack) that can be saved and printed as evidence.
Article 2. Applicability of the General Terms and Conditions
1. These General Terms and Conditions shall apply to all offers, requests, Quotations, Agreements and other legal relationships between STUDIO FRM and the Client. Once declared applicable to any Agreement between STUDIO FRM and the Client, these General Terms and Conditions shall also apply to all subsequent agreements between the same parties, unless otherwise agreed in writing.
2. Deviations from and/or additions to these General Terms and Conditions or the Agreement shall only be valid if agreed upon in writing. Oral statements, commitments or promises by STUDIO FRM shall only be binding if and insofar as they have been confirmed in writing by STUDIO FRM.
3. The applicability of any general (purchase) conditions of the Client is hereby expressly rejected and shall not apply to the Agreement.
4. In the event of any inconsistency between the content of the Agreement and these General Terms and Conditions, the provisions of the Agreement shall prevail. In the event of any inconsistency between the content of a Quotation and a Framework Agreement, the provisions of the Quotation shall prevail.
Article 3. The Offer, Formation of Agreement, Framework Agreement, and Exclusivity
1. All offers and Quotations issued by STUDIO FRM are non-binding and subject to confirmation. An offer shall only become binding upon written acceptance by the Client.
2. The Agreement between STUDIO FRM and the Client is concluded when the Framework Agreement or Quotation issued by STUDIO FRM has been signed by the Client, or when the Framework Agreement or Quotation has been expressly approved by the Client by email.
3. Offers and Quotations issued by STUDIO FRM shall not automatically apply to future assignments or Agreements.
4. A Framework Agreement signed by STUDIO FRM and the Client shall not oblige the Client to award assignments to STUDIO FRM, nor shall it oblige STUDIO FRM to perform any services based solely on the Framework Agreement. STUDIO FRM’s obligation to perform services shall only arise upon the Client’s written acceptance of a specific Quotation.
5. If STUDIO FRM and the Client have entered into a Framework Agreement, such Framework Agreement shall automatically apply to all Quotations subsequently issued by STUDIO FRM to the Client, unless explicitly agreed otherwise in writing.
Article 4. Performance of the Agreement - general
1. STUDIO FRM shall perform the Agreement to the best of its knowledge and ability and with due care, in accordance with the standards of good workmanship. The services of STUDIO FRM constitute a best-efforts obligation, not an obligation to achieve a specific result.
2. STUDIO FRM shall at all times be entitled, at its sole discretion, to engage third parties or auxiliary persons in the performance of the Agreement. Such third parties and/or auxiliary persons shall not be parties to the Agreement. STUDIO FRM shall require such parties to perform their services to the best of their ability, with due care, and in accordance with the quality standards applied by STUDIO FRM.
3. All assignments shall be accepted and performed exclusively with the exclusion of the effect of Articles 7:404 (assignment granted with a view to a specific person) and 7:407 paragraph 2 (joint and several liability) of the Dutch Civil Code.
4. STUDIO FRM shall only be able to perform its services properly if all necessary information has been made available by the Client in a timely and complete manner, and if the Client is available for consultation. The Client shall ensure that all information requested by STUDIO FRM is provided on time, in full, and in the requested format, insofar as relevant to the performance of the Agreement. STUDIO FRM shall be entitled to immediately suspend its obligations and/or terminate the Agreement if, in STUDIO FRM’s opinion, the Client fails to comply fully with its obligation to provide information.
5. If, during the performance of the Agreement, the nature, scope or content of the services is materially altered, the originally agreed timeframe for performance may also be adjusted accordingly.
6. The mere exceeding of any agreed deadline shall not constitute a default (breach of contract). In such cases, STUDIO FRM shall be granted a reasonable period to still fulfill its obligations.
Article 5. Prices, payment, and collection costs
1. STUDIO FRM is entitled to unilaterally adjust the prices and rates monthly at the beginning of each calendar month by reasonableness. In addition, in the event of an adjustment of the cost-determining factors, STUDIO FRM shall be entitled to pass on such adjustment to the Client with immediate effect utilizing proportional adjustment of the prices charged by STUDIO FRM.
2. Payment shall be made within thirty days of the invoice date unless otherwise agreed upon. If the full amount has not been credited to the designated STUDIO FRM bank account within thirty days of the invoice date at the latest, the Client shall be in default immediately without further notice of default. As from the day of the commencement of default, the Client shall owe the statutory commercial interest.
3. Payments made by the Client to STUDIO FRM shall first be deducted from the extrajudicial costs, then from the interest, then from the outstanding invoice, in order from old to new.
Article 6. Termination or dissolution
1. If a Framework Agreement of indefinite duration is agreed upon between STUDIO FRM and the Client, STUDIO FRM and the Client shall be entitled to terminate the Framework Agreement with a notice period of at least three months.
2. If a fixed-term Framework Contract has been agreed upon between STUDIO FRM and the Client, STUDIO FRM and the Client shall be entitled to terminate the Framework Contract prematurely with a notice period of at least two months. In the event that neither the Client nor STUDIO FRM has given written notice of termination of the Framework Agreement two months prior to the end of the term, the Framework Agreement shall be extended for a term of one year.
3. A Quotation ends when STUDIO FRM has fully completed the work described in the Quotation and the Client has paid in full the amount in respect of the work. An order based on the Quote signed by STUDIO FRM and the Client cannot be terminated prematurely, unless there is a case of force majeure (within the meaning of Article 8),. In the event of force majeure, the Client or STUDIO FRM shall be entitled to terminate the aforementioned assignment with immediate effect.
4. The Client and STUDIO FRM each have the right to terminate the Agreement or to terminate the Agreement prematurely, if there is a material breach by the other party in the performance of its obligations under the Agreement, and the breaching party has not remedied such breach within a reasonable period of time, after notification of such breach. This does not require that the failure be attributable.
5. In any event, STUDIO FRM and the Client are entitled to terminate the Agreement with immediate effect or to terminate the Agreement prematurely, without prior written notice of default being required, in the event of: (a) (application for) bankruptcy; (b) (application for) suspension of payments; (c) (partial) liquidation; (d) attachment of the Client's assets by a third party; (e) the Client being placed under guardianship or death; (f) the Client transferring (important parts of) its business or the control thereof in whole or in part; (g) the proclamation of incorrect information in the media; and/or (g) breach of the confidentiality clause.
6. Obligations which by their nature are intended to last even after termination of the Agreement shall continue to exist after termination of the Agreement.
Article 7. ICT
1. If the Customer provides STUDIO FRM with information carriers, electronic files or software etc., the Customer warrants that these are free of viruses and defects. STUDIO FRM shall handle such data carriers, electronic files or software etc. with due care and shall only use them for the purposes of the Agreement. STUDIO FRM shall not disclose the data carriers, electronic files or software etc. without the Customer's prior consent.
2. Should the Customer request STUDIO FRM to use certain equipment and/or software, this shall always take place entirely at the expense and risk of the Customer. In such cases, the Client is obliged to provide all instructions concerning the manner in which the systems are to be used in a timely and complete manner.
3. STUDIO FRM and the Client are each required to adequately secure their systems and infrastructure and shall have anti-virus software in operation at all times.
4. Access or identification codes provided are confidential and should be treated as such by STUDIO FRM and Client.
Article 8. Force Majeure
1. Force majeure exists if the failure of one of the parties is not due to his or her fault, nor for his or her account under the law, legal act or generally accepted practice. If there is prolonged force majeure, longer than fourteen days, each party is entitled (in deviation from article 6 paragraph 4) to dissolve/ terminate the Agreement in writing in whole or in part with immediate effect extrajudicially or to suspend its obligations.
2. For the Client, STUDIO FRM, force majeure shall include, but not be limited to, war, insurrection, molestation, boycott, governmental measures resulting from (pan)epidemics (such as "Covid-19"), bankruptcy or suspension of payments of one or more of its suppliers or contracted third parties, natural disasters and electricity failures or failures of telecommunications facilities
Article 9. Liability
1. STUDIO FRM shall not be liable for any damages of any kind arising out of or in connection with the performance of the Agreement, except in cases of intent or deliberate recklessness on the part of STUDIO FRM.
2. In the event that STUDIO FRM is nevertheless found liable for any direct damages, such liability shall in all cases be limited to the total amount of fees (excluding VAT) invoiced by STUDIO FRM to the Client in connection with the assignment in question, up to a maximum of EUR 1,000 (one thousand euros). A series of related events shall be deemed to constitute a single event.
3. STUDIO FRM shall under no circumstances be liable for any indirect or consequential damages, including but not limited to loss of profit, loss of savings, reputational harm, loss due to business interruption, or damages resulting from third-party claims against the Client.
4. The Client shall at all times be required to substantiate in writing, with reasons and in detail, any loss or damage alleged by it, within forty-five (45) days after the Client discovers or reasonably should have discovered the occurrence of such loss or damage. Any claim reported after this period shall be deemed forfeited.
5. Before the Client proceeds to claim damages, the Client shall first give STUDIO FRM written notice of default and allow STUDIO FRM a reasonable period to still perform its obligations, or to remedy or mitigate the consequences of the alleged breach or wrongful act.
6. The limitations and exclusions of liability set out in this Article shall also apply to all persons or entities engaged by STUDIO FRM in the execution of the Agreement, including but not limited to employees, contractors, suppliers, and third parties.
Article 10. Intellectual property
1. STUDIO FRM reserves the rights and powers to which it is entitled under its intellectual property rights, which have arisen and/or been registered as a result of services rendered or products manufactured by STUDIO FRM whether or not for the Client. The Client warrants that he shall respect and not infringe upon these intellectual property rights of STUDIO FRM.
2. Unless otherwise agreed, STUDIO FRM shall grant the Client a perpetual license to use the intellectual property rights for the purpose described in the assignment.
3. If STUDIO FRM uses actors, models, directors and/or photographers in the performance of its services, the intellectual property rights shall be transferred to the Client in a form of a (limited) license as agreed in the Quotation. Such right (in the broadest sense of the word) of the aforementioned third parties shall not be transferred.
4. The Customer and STUDIO FRM warrant that - if and to the extent that any materials, documents, images or data or other data are made available or disclosed by the Customer to STUDIO FRM within the scope of the Agreement, or any materials, documents, images or data or other data are used by or on behalf of STUDIO FRM at the Customer's request - they are entitled to do so and that such materials and data do not infringe any third-party rights.
5. If it is established in court that the result of the services rendered by STUDIO FRM infringes any intellectual property right belonging to a third party or if, in STUDIO FRM’s opinion, there is a reasonable chance that such infringement may occur, STUDIO FRM shall, if possible, at its own discretion, either ensure that the Customer can continue to use a similar result without interruption or credit the Customer for the purchase costs less a reasonable user fee.
Article 11. Data and privacy
1. The Client has obligations towards third parties under the legislation concerning the processing of personal data (such as the Personal Data Protection Act), such as the obligation to provide information, as well as to allow inspection, correction and deletion of personal data of data subjects. The responsibility for fulfilling these obligations rests with the Client. To the extent technically possible, STUDIO FRM shall cooperate with the obligations to be fulfilled by Customer, including the forwarding of requests from third parties in the context of the aforementioned obligations of Customer.
2. To the extent that STUDIO FRM and Customer share personal data with each other in the context of the (potential) formation of an Agreement or in the performance of an Agreement, they shall reasonably comply with the requirements under applicable privacy laws, such as the General Data Protection Regulation ("GDPR").
3. The Client and STUDIO FRM warrant that - taking into account the nature of the data and the state of the art - they will take appropriate technical and organizational measures to protect any personal data that the Client and STUDIO FRM provide and receive to each other.
4. The Client and STUDIO FRM guarantee that all data (such as personal data), which are made available, have been obtained in a lawful manner, have been made available to the other parties in a lawful and secure manner that the data do not infringe any rights of third parties.
Article 12. Confidentiality and communication
1. STUDIO FRM and the Client are obliged to maintain strict confidentiality of all data, information and knowledge obtained in the context of this Agreement, which can reasonably be assumed to be confidential, unless disclosure is necessary for the performance of an agreement or compliance with a statutory provision or court order. The aforementioned confidentiality shall not apply in the event of disclosure to the court in proceedings between the Client on the one hand and STUDIO FRM on the other hand. Furthermore, obtained data shall not be considered confidential if such data has already been disclosed by another the Ace Company or ACE Network.
2. STUDIO FRM and the Client warrant and represent that their employees and the contractors engaged by it shall abide by the same obligation of confidentiality.
3. STUDIO FRM on the one hand, and the Client, on the other hand, shall not speak negatively of each other in public.
Article 13. Relationship clause
1. Without the prior written consent of STUDIO FRM, during the Agreement, and for a period of 1 year after termination of the Agreement, the Client shall refrain from: i) entering into contracts with contractors of STUDIO FRM, ii) employees or representatives of STUDIO FRM with whom the Client has been in contact in connection with the Agreement or the cooperation between the parties.
Article 14. Other
1. Apart from certain specific provisions as explicitly agreed upon in the Agreement, the Customer and STUDIO FRM waive their right to suspend and/or set-off.
2. The invalidity of any provision of the Agreement and/or these General Terms and Conditions shall not affect the validity of the remaining provisions of the Agreement and these General Terms and Conditions.
3. Should it be established in court that one or more articles of the Agreement or these General Terms and Conditions are invalid or otherwise not binding, STUDIO FRM and the Customer shall, in joint consultation and in the spirit of the Agreement and/or these General Terms and Conditions, amend them into provisions that differ as little as possible from the relevant non-binding articles.
4. Obligations, which by their nature are intended to continue beyond the end of the Agreement, shall continue after the end of the Agreement.
5. In case of inconsistency between the Dutch version of these Terms and Conditions and any translated version of these Terms and Conditions, the Dutch version shall prevail.
Article 15. Applicable law and competent court
1. The Agreement and the relationship between STUDIO FRM and the Client shall be governed by Dutch law.
2. All disputes arising between the Client and STUDIO FRM shall in the first instance be settled by the District Court of Amsterdam.
Chapter Media
1. The media provisions contained in this chapter, in addition to the general provisions of these Terms and Conditions between the Client and STUDIO FRM, shall apply if the Client instructs STUDIO FRM to disclose content on behalf of the Client by means of media placements and media space (such as advertisements and advertising airtime).
2. The Client is aware that STUDIO FRM purchases media placements and media space for Client content from third parties on behalf of the Client. STUDIO FRM shall pass on the costs for these media placements and media space in full to the Client. The prices charged by third parties for these media placements and media space may fluctuate, including between quotation and final purchase. STUDIO FRM shall submit the final costs for the media placements and media space to the Client in advance.
3. In respect of the work and additional costs related to the purchase of media placements and media space, STUDIO FRM shall charge the Client a fee which shall be calculated on the basis of the most recent rate card used by STUDIO FRM, which STUDIO FRM shall provide upon the Client's first request.
4. The Client shall ensure that the (fluctuating) costs and fee charged by STUDIO FRM in connection with media placements and media space are credited to STUDIO FRM's bank account even before the Client's content is placed by STUDIO FRM. STUDIO FRM is entitled to suspend the purchase of media placements and media space, or at least the placement of the Client's content, if the entire amount of the costs and fee charged by STUDIO FRM has not been fully credited to its bank account.
