GENERAL TERMS AND CONDITIONS OF MASSIVV.
1.1. These general terms and conditions are applicable to any agreement and the
conclusion thereof between MASSIVV, its group companies and/or any affiliated
company that states that these terms and conditions are applicable on the one hand
(MASSIVV. or such company here in after referred to as “MASSIVV”), 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 MASSIVV. 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
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
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.
2. Offers and quotes
2.1. Unless stated otherwise in writing, any offer of MASSIVV is non-binding.
2.2. Unless stated otherwise in writing, all offers made by MASSIVV shall lapse after one
week of its date.
2.3. A quote that combines multiple elements shall not oblige MASSIVV to perform a part
of the service detailed therein for a corresponding fraction of the quoted price.
3. Performance of the Agreement
3.1. MASSIVV 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 MASSIVV will be a commercially reasonable efforts obligation and
shall never constitute an obligation to achieve a specific result or use MASSIVV’s best
efforts, unless such a result is explicitly agreed on by MASSIVV.
3.3. MASSIVV is entitled to use third parties to perform its obligations.
3.4. In the event MASSIVV 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 MASSIVV’s sole discretion, most favorable for MASSIVV 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 MASSIVV if the Client proves that MASSIVV
has not used its commercially reasonable efforts.
3.6. Client is obliged to do everything that is reasonably necessary or desirable to enable
MASSIVV to carry out its obligations in a timely manner, in particular by providing full,
sound and clear information, necessary instructions, permissions and approvals or
3.7. The Client guarantees and warrants that all instructions given to MASSIVV are given
by an authorized person. MASSIVV shall never be obliged to check if the person acting as
a representative of the Client that gives MASSIVV an instruction or information is
entitled to do so.
4.1. MASSIVV 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
MASSIVV will not be in default.
4.2. The Client shall be deemed to have accepted anything delivered by MASSIVV 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 MASSIVV shall if reasonably possible try to
realize the Client’s wishes. This may imply additional work. MASSIVV shall inform the
Client if and to which extend MASSIVV 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 MASSIVV’s out-of-pocket costs occurs after the conclusion of the
Agreement, MASSIVV may increase the fee payable by the Client. If, as a result of this,
such increase exceeds 15% of the fee, MASSIVV is entitled to terminate the Agreement
without being liable for any losses or damages.
5.3. Unless stated otherwise in the Agreement, the Client shall pay MASSIVV as follows:
a) In the event of an audiovisual production (regardless if MASSIVV has sent an invoice
or not and notwithstanding MASSIVV’s obligation to provide the Client with a correct
(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 percent (20%) one week before the first shooting day
(ii) thirty percent (30%) 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. MASSIVV is always entitled to request payment before MASSIVV shall start to carry
out its obligations. MASSIVV 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 MASSIVV’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 MASSIVV may have, MASSIVV is always
entitled to suspend delivery in case of late payment. MASSIVV may, in the event Final
Kid 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. MASSIVV shall use its reasonable commercial efforts not to exceed a budget agreed
6.2. The Client may request MASSIVV to carry out additional work. MASSIVV is never
held to agree with a request for additional work.
6.3. If, after MASSIVV has made the Client an offer or after an Agreement has been
concluded, MASSIVV concludes that, due to a lack of information provided or based on
additional wishes by the Client, MASSIVV needs to deliver additional services or goods
and MASSIVV is willing to provide those additional work or goods, the costs of such
additional work or goods shall be fully for the Client. MASSIVV shall inform the Client of
additional work as soon as reasonably possible.
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 Final
Kid. The Client will always pay MASSIVV’s additional costs.
7.1. In case Client cancels an Agreement, for whatever reason, MASSIVV will charge the
a) In the event of an audiovisual production:
(i) all out-of-pocket costs incurred by MASSIVV and 30% 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 MASSIVV and 50% of the fee if the Client
cancels in between twenty-one days and seven days prior to the first shooting
day of the production;
(ii) all out of-pocket costs incurred by MASSIVV and 75% of the fee if the Client
cancels within seven days of 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 MASSIVV cancels an audiovisual production and if such cancellation is not
provoked by an act or omission of the Client, MASSIVV will solely refund amounts
received unless the services MASSIVV rendered have resulted in relevant material in
which case MASSIVV shall be entitled to a reasonable part of the amounts received. Final
Kid 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, MASSIVV hereby transfers to the Client all copyrights and neighboring
rights MASSIVV may have regarding an audiovisual production produced by MASSIVV as
delivered to the Client with the exception of those elements not especially made for the
Client that MASSIVV has used, envisage to use or are customarily used in multiple
productions. Regarding these latter elements MASSIVV 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 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
8.2. MASSIVV 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, MASSIVV 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 MASSIVV 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 MASSIVV 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
MASSIVV fully in respect of any claim by any third party regarding any rights not
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. MASSIVV 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 MASSIVV or with MASSIVV’s
9.1. MASSIVV is allowed to (use) an audiovisual production delivered for its own
promotion and to indicate (by a third party) that it has created it. MASSIVV 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 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:
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
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 has 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. MASSIVV 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 MASSIVV.
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. MASSIVV’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
MASSIVV from Client less out-of-pocket costs incurred by MASSIVV.
11.4. MASSIVV shall never be liable for:
a) any indirect or consequential damages, 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 MASSIVV, 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 MASSIVV 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
MASSIVV higher than the amounts stated in the preceding paragraphs of this clause,
MASSIVV 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 MASSIVV.
11.6. Without prejudice to article 6:89 BW of the Dutch Civil Code, any liability of Final
Kid terminates within twelve months after the occurrence of the injurious act or
11.7. The limitations of liability of MASSIVV in this clause do not apply if the liability is
caused by gross negligence or intent by MASSIVV’s management team of by a member of
11.8. Client shall indemnify MASSIVV, from and against all damages, 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 liability in this clause and the indemnification of the Client are
also made on behalf of MASSIVV’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 MASSIVV’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.
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, MASSIVV 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 MASSIVV terminates an Agreement in accordance with the
preceding paragraph, the Client will pay MASSIVV its full fee and all of MASSIVV’s costs
or, at MASSIVV’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.