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GENERAL TERMS AND CONDITIONS OF NOMOBO
1. Applicability
1.1. These general terms and conditions are applicable to any agreement and the conclusion thereof
between NOMOBO B.V., its group companies and/or any affiliated company that states that
these terms and conditions are applicable on the one hand (NOMOBO B.V. or such company
hereinafter referred to as “NOMOBO”), and a client or a potential client on the other hand. Such
client hereinafter referred to as “the Client”. An agreement may include, but shall not be limited
to, the production of audiovisual content by NOMOBO. Such agreement shall include these
general terms and conditions. Such agreement hereinafter referred to as “the Agreement”.
1.2. Deviations from these general terms and conditions can only be explicitly made in writing and
will only be applicable to the Agreement for which these deviations are stipulated.
1.3. If and insofar as any provision from an agreement (exclusive of these terms and conditions) is
incompatible with a provision from these general terms and conditions, the provision from such
agreement shall prevail.
1.4. Should a clause forming part of the Agreement, including but not limited to a clause in these
general terms and conditions, be or become null and void, the other provisions of the
Agreement shall remain in force, and the clause concerns shall be replaced where possible by a
clause that approximates the essence of the original clause as much as possible.
1.5. Unless explicitly agreed otherwise in writing, any general terms and conditions of the Client are
not applicable. If and insofar as any applicable general terms and conditions of the client are
incompatible with these general terms and conditions, these general terms and conditions shall
prevail.
1.6. Unless the Agreement stipulated otherwise, Client is not entitled to transfer its rights under the
Agreement to a third party.
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2. Offers and quotes
2.1. Unless stated otherwise in writing, any offer of NOMOBO is non-binding.
2.2. Unless stated otherwise in writing, all offers made by NOMOBO shall lapse after one week of its
date.
2.3. A quote that combines multiple elements shall not oblige NOMOBO to perform a part of the
service detailed therein for a corresponding fraction of the quoted price.
3. Performance of the Agreement
3.1. NOMOBO will be entirely independent in the performance of the Agreement. It will carry out its
obligations at its own discretion. However, the Client may provide reasonable directions and
instructions with regard to the result of the assignment.
3.2. Commitments for NOMOBO will be a commercially reasonable efforts obligation and shall never
constitute an obligations to achieve a specific result or use NOMOBO’s best efforts, unless such a
result is explicitly agreed on by NOMOBO.
3.3. NOMOBO is entitled to use third parties to perform its obligations.
3.4. In the event NOMOBO supplies services wholly or partly consisting of third party products or
services (especially software or hosting or other generic services), the general terms and
conditions of the third party apply besides these general terms and conditions. If and insofar any
provision of the third party’s general terms and condition is incompatible with a provision from
these general terms and conditions, the provision which is, in NOMOBO’s sole discretion, most
favorable for NOMOBO shall prevail.
3.5. Delivered goods and services in which subjective elements play a role in the assessment thereof,
may, without prejudice to what is stated elsewhere in these general terms and conditions
regarding liability, only cause a failure in the performance (a so called “tekortkoming in de
nakoming” ) by NOMOBO if the Client proves that NOMOBO has not used its commercially
reasonable efforts.
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3.6. Client is obliged to do everything that is reasonably necessary or desirable to enable NOMOBO
to carry out its obligations in a timely manner, in particular by providing full, sound and clear
information, necessary instructions, permissions and approvals or materials.
3.7. The Client guarantees and warrants that all instructions given to NOMOBO are given by an
authorized person. NOMOBO shall never be obliged to check if the person acting as a
representative of the Client that gives NOMOBO an instruction or information is entitled to do
so.
4. Delivery
4.1. NOMOBO will deliver on the agreed date, unless there is any additional work necessary due to
the Client. Delivery dates are not “fatal”. By not making a specific date NOMOBO will not be in
default.
4.2. The Client shall be deemed to have accepted anything delivered by NOMOBO if the Client uses
the delivered goods or services or if the Client does not challenge the quality of the delivered
goods or services within five days of receipt.
4.3. If agreed the Client may view a first rough cut of the production. The Client shall be entitled to
comment on such rough cut and NOMOBO shall if reasonably possible try to realize the Client’s
wishes. This may imply additional work. NOMOBO shall inform he Client if and to which extend
NOMOBO estimates this to be the case.
5. Price and payment
5.1. Unless stated otherwise, all prices and rates are exclusive of VAT and withholding tax and any
other tax or levy imposed by the authorities.
5.2. If an increase of NOMOBO’s out-of-pocket costs occurs after the conclusion of the Agreement,
NOMOBO may increase the fee payable by the Client. If, as a result of this, such increase exceeds
15% of the fee, NOMOBO is entitled to terminate the Agreement without being liable for any
losses or damages.
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5.3. Unless stated otherwise in the Agreement, the Client shall pay NOMOBO as follows:
a) In the event of an audiovisual production (regardless if NOMOBO has sent an invoice or
not and notwithstanding NOMOBO’s obligation to provide the Client with a correct
invoice):
(i) fifty per cent (50%) in advance, ultimately the earlier of eight weeks of the
conclusion of the Agreement or six weeks before the first shooting day;
(i) twenty-five per cent (25%) in advance, not later than two weeks for the first
shooting day;
(ii) twenty-five per cent (25%) within one week after the production has been
delivered to the Client.
b) In all other events within fourteen working days of the invoice date.
5.4. NOMOBO is always entitled to request payment before NOMOBO shall start to carry out its
obligations. NOMOBO is always entitled to request security for payment by the Client and shall
never be obliged to continue to fulfil its obligations until adequate security (in NOMOBO’s sole
discretion) has been provided. Any damages as a result of delays are fully for the account of the
Client.
5.5. Notwithstanding any other right or defense NOMOBO may have, NOMOBO is always entitled to
suspend delivery in case of late payment. NOMOBO may, in the event NOMOBO is able to do so,
also block any of its works delivered to the Client (also if such works were delivered under earlier
agreements).
6. Budget and additional work
6.1. NOMOBO shall use its reasonable commercial efforts not to exceed a budget agreed on.
6.2. The Client may request NOMOBO to carry out additional work. NOMOBO is never held to agree
with a request for additional work.
6.3. If, after NOMOBO has made the Client an offer or after an Agreement has been concluded,
NOMOBO concludes that, due to a lack of information provided or based on additional wishes by
the Client, NOMOBO needs to deliver additional services or goods and NOMOBO is willing to
provide those additional work or goods, the costs of such additional work or goods shall be fully
for the Client. NOMOBO shall inform the Client of additional work as soon as reasonably
possible.
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6.4. The Client will reimburse additional work in accordance with the agreed fee in respect thereof
or, if such fee is not agreed, in accordance with the usual rates of NOMOBO. The Client will
always pay NOMOBO’s additional costs.
7. Cancellation
7.1. In case Client cancels an Agreement, for whatever reason, NOMOBO will charge the following
costs:
a) In the event of an audiovisual production:
(i) all out-of-pocket costs incurred by NOMOBO and 50% of the fee if the Client
cancels up to twenty-one days prior to the first shooting day of the production;
(ii) all out of-pocket costs incurred by NOMOBO and 75% of the fee if the Client
cancels in between twenty-one days and seven days prior to the first shooting
day of the production;
(iii) all out-of-pocket costs incurred by NOMOBO and the full fee or, in NOMOBO’s
sole discretion, the full price if the Client cancels within seven days prior to the
first shooting day of the production;
b) In all other events, the price plus all out-of-pocket costs as far as not included therein.
7.2. In case NOMOBO cancels an audiovisual production and if such cancellation is not provoked by
an act or omission of the Client, NOMOBO will solely refund amounts received unless the
services NOMOBO rendered have resulted in relevant material in which case NOMOBO shall be
entitled to a reasonable part of the amounts received. NOMOBO is not obliged to pay any losses
or damages suffered by Client.
8. Intellectual property
8.1. Subject to full payment by the Client of all amounts currently and in the future due hereunder
and subject to full compliance of the Client in respect of the other obligations of the Client,
NOMOBO hereby transfers to the Client all copyrights and neighboring rights NOMOBO may
have regarding an audiovisual production produced by NOMOBO as delivered to the Client with
the exception of those elements not especially made for the Client that NOMOBO has used,
envisage to use or are customarily used in multiple productions. Regarding these latter elements
NOMOBO hereby grants the Client a non-exclusive, worldwide license to use such elements.
Further, to avoid misunderstanding, such transfer is exclusive of rights the authors of the
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respective works did transfer or license prior to the conclusion of the Agreement to a collective
collection society such as BUMA/STEMRA (music), VEVAM (director i.a.), NORMA (actors) etc.
8.2. NOMOBO reserves all of its rights regarding the production script, the underlying format of the
production, any material not used in the production as delivered and all techniques (including
software) used to create the production.
8.3. Unless otherwise agreed, NOMOBO shall not clear rights, including copyrights, trademark rights
(e.g. in respect of the title of a production), database rights, model rights or portrait rights of
third parties, of works or elements which NOMOBO includes in the production. Unless otherwise
agreed, the Client shall clear any privacy and data protection issues in connection with the
production, e.g. by having relevant persons sign a quit claim. Upon request of the Client
NOMOBO shall provide the Client at cost an overview of the elements that might need
clearance. The Client warrants and guarantees that all elements the Client wishes to include, also
those elements that the wishes of the Client imply, are or will be cleared by the Client. The Client
indemnifies NOMOBO fully in respect of any claim by any third party regarding any rights not
cleared.
8.4. The cost of the use of any music included in the production shall be for the account of the Client
unless otherwise agreed.
8.5. NOMOBO and its personnel shall be named on or with the production as is customary. The Client
shall not remove any of such names.
8.6. Any changes in the production can only be made by NOMOBO or with NOMOBO’s prior consent.
9. Promotion
9.1. NOMOBO is allowed to (use) an audiovisual production delivered for its own promotion and to
indicate (by a third party) that it has created it. NOMOBO is entitled to use the fact it has
provided or will provide services or goods to the Client and an overview of those services and
goods for its own promotion.
10. Confidential information
10.1. Each party will keep confidential, and will not disclose to third parties (except as expressly
permitted by this clause) any information disclosed by one party to the other party (whether
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disclosed in writing, orally or otherwise) that at the time of disclosure: (a) was marked as
"confidential"; (b) was described by the disclosing party as "confidential"; or (c) must reasonably
be qualified by the recipient party to be confidential; and the terms (but not the existence) of
this Agreement (hereinafter: “Confidential Information”).
10.2. Each party will protect the confidentiality of the Confidential Information of the other party
using appropriate security measures.
10.3. The Confidential Information of a party may be disclosed by the other party to its employees and
professional advisers, provided that each recipient is legally bound to protect the confidentiality
of the Confidential Information.
10.4. These obligations of confidentiality will not apply to Confidential Information that:
a. has been published or is known to the public (other than as a result of a breach of this
Agreement);
b. is known to the receiving party, and can be shown by the receiving party to have been
known to it, before disclosure by the other party; or
c. is required to be disclosed by law, or by an order (binding upon the relevant party) of a
competent governmental authority, regulatory body or stock exchange.
10.5. In no event, neither during nor after the termination of this Agreement shall any party have the
right to use the other party’s Confidential Information for any purpose other than the purpose of
the Agreement.
11. Liability and indemnity
11.1. NOMOBO shall in no event be liable for any losses or damages incurred by the Client (or any of
its affiliates as a result of any shortcoming, default, tort or other unlawful act or omission by
NOMOBO.
11.2. Only if (and only to the extent that) the aforementioned full limitation of liability is null or
annullable pursuant to mandatory law, the following paragraphs shall apply.
11.3. NOMOBO’s liability shall be limited to the direct, as opposed to indirect or consequential,
damage incurred by Client up to the amount received and retained by NOMOBO from Client less
out-of-pocket costs incurred by NOMOBO.
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11.4. NOMOBO shall never be liable for:
a) any indirect or consequential damage, losses, costs or claims, including but not limited to
damage incurred by Client due to an interruption of its business, loss of profits, loss of
savings, loss of goodwill, loss resulting from claims from its clients, mutilation,
destruction or loss of information for whatever reason;
b) damage resulting from a situation of force majeure, the improper performance of
obligations by suppliers of NOMOBO, incorrect or incomplete information provided by
Client, the conduct of Client or persons or persons designated by Client or for whom
Client is responsible.
11.5. In the event NOMOBO may recover the Client ’s damages and losses wholly or partly with a third
party and such recovery might lead to amounts actually received by NOMOBO higher than the
amounts stated in the preceding paragraphs of this clause, NOMOBO shall be entitled, in its sole
discretion, to assign its claim on such third party to the Client against full discharge of the claim
the Client has or pretends on NOMOBO.
11.6. Without prejudice to article 6:89 BW of the Dutch Civil Code, any liability of NOMOBO
terminates within twelve months after the occurrence of the injurious act or omission.
11.7. The limitations of liability of NOMOBO in this clause do not apply if the liability is caused by gross
negligence or intent by NOMOBO’s management team of by a member of that team.
11.8. Client shall indemnify NOMOBO, from and against all damage, losses, liabilities, suits,
proceedings, actions, fees, costs and all other claims arising in the event of a non-performance
or a non-proper performance of any agreed obligation, insurance and/or indemnification by the
Client.
11.9. The limitations of the liability in this clause and the indemnification of the Client are also made
on behalf of NOMOBO’s management and employees should the Client (or a third party as the
case may be) have a separate claim against any of them. The liability towards all of these
persons together with NOMOBO’s own liability constitute the amount to be considered when
establishing the maximum liability hereunder. This clause is meant to be a third party clause and
the respective persons could invoke this clause against the Client.
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12. Duration of the Agreement and termination
12.1. Without prejudice to any other remedy or right out of the law and/or an Agreement, NOMOBO
shall have the right to terminate the Agreement with immediate effect at any time by notice in
writing to Client in any of the following circumstances, without incurring any liabilities
whatsoever towards Client, if:
- Client fails to comply with one or more of its obligations under the Agreement and these
general terms and conditions;
- Client enters into liquidation or receivership or enters into any arrangement with its
creditors or suffers any similar occurrence under the relevant legislation;
- Client is dissolved;
- Client is granted bankruptcy or its suspension of payment or suffers any similar occurrence
under the relevant legislation.
12.2. In the event that NOMOBO terminates an Agreement in accordance with the preceding
paragraph, the Client will pay NOMOBO its full fee and all of NOMOBO’s costs or, at NOMOBO’s
sole discretion, the full price.
12.3. All provisions, which by their nature should remain in force after termination, shall survive
termination and/or expiration of this Agreement.
13. Applicable law and forum
13.1. This agreement is and will be solely governed by Dutch law.
13.2. The parties shall submit all disputes arising out of or relating to an Agreement exclusively to the
Amsterdam Court.