General Terms and Conditions
of:
Patrick van Donselaar, located in Veenendaal, The Netherlands, at Groenelaan 65, registered with the Chamber of Commerce in the Netherlands under number 54749891, conducting business under the trade names Donzall, Voiceover-Stemacteur and Voiceover-Voiceactor
Article 1. Definitions
In these General Terms and Conditions we consider:
Contractor: Patrick van Donselaar
Customer: Patrick van Donselaar’s customer
Services: the services required to create or support the creation of a Deliverable
Deliverable: the materials delivered by Patrick van Donselaar to the customer, generally consisting of digital files containing a recording of the Contractors voice
Duration: period of time within which Contractor intends to deliver Services and/or Deliverables to the Customer
Deadline: date on which Services and/or Deliverables should be provided to the Customer
Agreement: the arrangement for the creation and delivery of Deliverables by the contractor incorporating these Terms and Conditions.
Revisions: changes to information or data, including but not limited to scripts, texts, storyboards and mockups, provided by Customer to Contractor necessary for the execution of Services and/or creation of Deliverables after the original provision of such information or data
Retakes: corrections to Deliverables made during recording, limited to mistakes, omissions, mispronunciation and editing mistakes
Terms and Conditions: the terms and conditions of supply of Services and Deliverables as set out in this document and any subsequent terms and conditions agreed to by both parties in writing or through other means of communication
Article 2. Applicability of these terms and conditions
The terms and conditions apply to every offer and every contract or agreement between Contractor and Customer to which Contractor has declared these terms and conditions applicable and where both parties have not declared, in writing, to deviate from these terms and conditions.
The underlying terms and conditions are also applicable to all contracts and agreements with Contractor for the execution of which third parties are or are going to be involved.
Article 3. Offers and Quotations
All offers made by Contractor are non-binding unless the offer contains a specific term of acceptance.
Offers and Quotations made by Contractor are non-binding; they are valid for a period of 30 calendar days, unless otherwise stipulated. Contractor is only bound by the offer or quotation if the Customer accepts the offer or quotation in writing within 30 days.
An agreement is entered into the moment the Contractor receives and accepts the offer or quotation signed by a legally valid representative of Customer, or when Customer provides agreement through a letter, electronic mail or any other form of communication.
Additions and changes to the agreement can only be made by mutual agreement.
Rates and pricing mentioned in quotations and offers are always exclusive of VAT, GST and any other applicable taxes. It is each party’s individual responsibility to comply with (local) tax laws for which they are held accountable by law.
Quoted rates and pricing are always a worldwide buy-out in perpetuity for use of the delivered material(s).
Article 4. Execution of the agreement
Scripts and text provided by the Customer are processed according to copy or written instruction. Scripts and text are to be provided in Microsoft Word format or a comparable standard word processing format.
Contractor will execute the agreement to the best of his abilities and insights and according to the principles of good tradesmanship. If it is required for and not detrimental to the proper execution of the agreement Contractor is allowed to have certain activities executed by third parties. Contractor will notify Customer prior to execution.
Customer agrees to make sure all information that Contractor indicates is necessary and of which the Customer can reasonably be expected to be aware is necessary for the proper execution of the agreement is provided to Contractor in a timely fashion. If information is not provided correctly, completely or timely Contractor reserves the right to postpone the execution of the agreement and/or to charge the Customer for costs incurred due to Customer’s negligence.
Materials that have been used to create the Deliverables remain the property of Contractor, unless Customer provided these materials in the first place. Contractor is in no way obligated to retain these materials.
Contractor can never be held liable for damages of any kind in any way when contractor has assumed correctness of data or information that turns out to be incorrect, unless it can be proven that the incorrectness should have been known to Contractor.
If the agreement is delivered in phases, Contractor can postpone subsequent phases until such time the Customer approves the Deliverable(s) of a preceding phase in writing.
Article 5. Duration of the agreement and duration of execution
A duration for the execution of the agreed work and/or deadline for delivery of the Deliverable is stipulated in the quotation or offer. However, this is never a finite duration or deadline. Should the Duration or Deadline be exceeded the Customer is required to provide formal notice to the Contractor.
A script, text, revision of script and/or text and/or retakes has only been formally provided to Contractor by Customer after written confirmation of receipt by Contractor. Agreements become effective 1 (one) working day after confirmation by Contractor of the provision of the necessary information and data, such as but not limited to scripts, texts, revisions of scripts and/or texts and/or retakes, by Customer. Duration of Services can never be less than 2 (two) working days, unless specifically otherwise agreed to by Contractor.
Article 6. Additional work and Revisions
The Services only concern those activities that have been agreed in writing between Contractor and Customer. Additional work the Contractor is requested to execute by Customer before or during the delivery of the Services and/or Deliverables will be charged additionally to the Customer.
Retakes, caused by mistakes, omissions, mispronunciation and editing mistakes attributable to the Contractor are always delivered free of charge if Customer provides written formal notice prior to or within a grace period of 5 (five) calendar days after Contractor sends the invoice for the Services and/or Deliverables. If Customer requests retakes after this grace period, retakes will be produced and delivered against Contractor’s normal rates.
Revisions are produced and delivered against the normal going rate. If in an individual agreement with a Customer it is stipulated that revisions are included in the rate, these revisions can never exceed 10% (ten percent) of the number of words and/or minutes of audio originally delivered by Contractor. Decisions regarding providing revisions is always at the discretion of the Contractor.
Article 7. Changes to the Agreement
If, during the execution of Services, it becomes clear that for a proper execution of those services it is necessary to change the agreed upon activities, Services or Deliverables, parties will inform each other in a timely fashion about the need to change the agreement. Should the change(s) have an impact on financial agreements or quality of delivery, Contractor will inform Customer prior to making the changes. Both parties must provide formal notice of agreement to the changes.
Should parties agree to change or amend the agreement, the duration and/or deadline in the original agreement may change as a consequence. Contractor will inform Customer of this in a timely fashion.
Customer agrees that changes or amendments to the original agreement, in whatever form (this includes but is not limited to changes to scripts, texts, place or means of recording etc.), which are made in writing, verbally or any other means by Customer that cause an increase in cost for Contractor will be charged additionally to the Customer.
Should the Customer, after entering into the agreement, want changes or amendments to the Services and/or Deliverables, Customer must notify Contractor in a timely fashion and in writing. Should the changes or amendments be communicated verbally, such as but not limited to by phone, the risk of the execution of the changes or amendments and their correctness lies with the Customer.
Contrary to what is defined in section 1 of this article, Contractor will not charge additionally if the changes or amendments are a consequence of circumstances that can be proven to be attributable to Contractor.
Article 8. Cancellation
Both parties can always terminate the agreement by providing formal notice in writing. Parties always need to adhere to a notice period of at least one full calendar month. Should cancellation take place less than one full calendar month before execution of Services, then Contractor is entitled to charge customer 50% (fifty percent) of the agreed rate for the Services and/or Deliverable.
Should Customer cancel the agreement and/or refuse to receive the Deliverable(s), Customer is obligated to reimburse Contractor for services of any third parties used against cost, including social rates and wages and Customer is obligated to pay Contractor for Services already executed and/or Deliverables already delivered. Customer wholly indemnifies Contractor from any claims by third parties as a consequence of the cancellation or refusal to receive.
Regardless of what is stipulated in the other sections of this article, Contractor reserves the right to demand fulfilment of Customer’s obligations according to the agreement and/or to demand damages in full.
Article 9. Dissolving the agreement
Payment in full can be claimed by Contractor immediately in case:
a. Contractor discovers after entering into the agreement that there are circumstances that make it likely that Customer will not fulfil the obligations related to the agreement;
b. Contractor has requested Customer to provide insurances concerning the fulfilment of Customer obligations related to the agreement and those insurances are not provided and/or are considered by Contractor to be insufficient
Should either of the aforementioned cases occur, Contractor is entitled to suspend execution of the Services and/or delivery of Deliverables and/or dissolving the agreement. Contractor reserves the right to claim payment and payment of damages in full.
Article 10. Reservation of Rights
So long as Contractor has not received payment in full for the Services and/or Deliverables specified in the agreement, all materials remain the property of Contractor and no permission for publication, copying, multiplication, distribution, transmission or any other use of said materials is permitted.
Contractor reserves the right to recall the Deliverables should the negligent customer continue to fail to fulfil the obligations of the agreement, if Customer liquidates assets, has assets seized, is bankrupt or files for bankruptcy.
Customer is forbidden to avail themselves of the Deliverables in any way until payment has been made in full.
Article 11. Intellectual property
Contractor reserves the rights for intellectual property of the Deliverables until payment has been made in full. All materials provided by Contractor to Customer are property of Contractor until payment has been made in full. No copying, multiplication, distribution or any other form of publication is permitted as long as payment has not been received by Contractor.
All deliverables resulting of the agreement are only intended to be used for the purpose as described in the agreement. Customer is not permitted to copy, multiply, distribute or make public in any way these deliverables without Contractors written prior approval.
Customer is not permitted to make any changes or amendments to deliverables or other materials related to the agreement without written prior approval of Contractor.
Customer wholly indemnifies Contractor from all claims by third parties regarding the intellectual properties of materials and/or data provided to Contractor by Customer.
Article 12. Copyright
Contractor reserves all rights and privileges he is entitled to according to national and international copyright laws. Copyright of Deliverables is only transferred to Contractor upon completion of all payments due to Contractor.
Should Customer ask Contractor to use recordings, sounds, music or any other materials provided by Customer for the production of Deliverables Customer guarantees Contractor that Customer has the intellectual and copy rights for the provided materials.
Customer wholly indemnifies Contractor from all claims by third parties on fees related to copyright, author’s rights, intellectual property and other rights regarding reproduction of copyrighted materials. Customer further wholly indemnifies Contractor from claims made by third parties for indemnification or payment of damages due to materials provided to Contractor by Customer, including all legal costs and court fees.
Article 13. Faults and complaints
Customer is obligated to inspect and review deliverables thoroughly promptly upon delivery and immediately notify Contractor in case of faults or complaints.
Should customer not inform Contractor within 5 (five) calendar days after date of delivery or deliverables or completion of services find faults that could have been discovered by thorough inspection, Customer is obligated to pay Contractor in full and all rights of reclamation are void.
Small deviations concerning tone of voice, recording volume, recording duration, etc. are not grounds to not approve the deliverable. When judging the state of the delivered an average has to be taken of the entire Deliverable or set of Deliverables.
Should Contractor deem complaints to be founded, Contractor will either pay a modest damages fee of at most the value of the original invoice for the Deliverables or replace the Deliverables at no cost. The decision is always at the discretion of Contractor.
Should Customer be able to prove that replacing the Deliverable with a new Deliverable has become futile or impossible, Contractor can only be held liable according to the conditions specified in Article 17 (Liability) of the underlying document.
Article 14. Rate and fee
Agreements in which a fixed fee is agreed upon sections 2, 4 and 5 of this article are applicable. If a fixed fee is not agreed upon, sections 3 through 5 of this article are applicable.
Parties can agree a fixed fee in an agreement. This fee is always exclusive of VAT, GST and other applicable taxes levied.
If no fixed fee is agreed upon, the fee will be determined based on actually worked hours. The fee is calculated according to common hourly rates of the Contractor, valid for the period in which the activities related to the agreement take place.
Agreements with a duration of more than 2 (two) months, fees will be invoiced on a periodic basis, typically on the first day of the month following the month in which the Services were executed or Deliverables were delivered.
Should Contractor have agreed an hourly rate, Contractor is entitled by law to increase the hourly rates agreed with Customer, should Contractor be able to prove that between the moment of offering/quoting the rate and delivery of Services or Deliverables significant rate changes have occurred with regards to for example wages or social taxes. Contractor is always entitled to increasing rates in case of changes or amendments to the agreement including but not limited to those described in Article 7 of the underlying document.
Article 15. Payment
Payment is due within 14 days of the invoice date. Payment must be made in a way Contractor has indicated on the invoice and in the currency Contractor has created the invoice in.
Customer must provide written formal notification within 8 days after the invoice date in case of objections to the invoice, after 8 days the Customer is assumed to have agreed to pay the invoice in full.
15 (fifteen) days after the invoice date the Customer is in default. Customer is obligated to pay an interest of 3% of the original invoice amount per month, unless the lawful interest for defaults is higher, in that case the higher interest rate applies.
Any payments made by Customer will first be deducted from any open amounts of interest and costs, only then will the payment be used to fulfil open invoices, starting with the oldest invoice first. Payments will then be used to fulfil invoices that have been in default longest, even if Customer references other invoices during payment.
If Customer liquidates assets, has assets seized, is bankrupt or files for bankruptcy or becomes otherwise financially incapacitated Contractor’s claims become wholly collectable immediately from the Customer regardless of payment terms.
Article 16. Cost of Collection
Should the Customer default on one or more of Customer’s obligations, financial or otherwise, all reasonable costs of obtainment of payment will be charged to Customer. Customer at least owes:
a. 10% over the first € 5000
b. 5% over the excess of € 20000
c. 3,5% over the excess of € 50000
d 2,5% over the excess of € 100000
Should Contractor be able to prove to have made costs in excess of € 100000 to obtain payment by customer Customer will also owe these costs.
Article 17. Liability
Should Customer hold Contractor liable for any damages, then that liability is always and unconditionally limited to twice the invoice value of the part of the agreement the liability pertains to.
In case of agreements with a duration longer than 6 (six) months, liability is further unconditionally limited to the invoice value of the last 3 (three) months.
The conditions for liability contained in the underlying document are not valid in case damages can be proven to be attributable to Contractor’s gross negligence.
Contractor can never be held liable for consequential damages and/or losses.
Article 18. Force Majeure
In the context of the underlying document Force Majeure is defined, aside from the definitions according to law and jurisprudence, all causes whether foreseen or unforeseen outside the direct control of the contractor, because of which Contractor is unable to fulfil the obligations of the agreement. This includes strikes in Contractor’s company.
Contractor also has the right to claim Force Majeure, in case the cause of his inability to (further) fulfil the obligations of the agreement occurs after Contractor should have fulfilled the obligations of the agreement.
In case of Force Majeure Contractor’s obligations to fulfil any part of the agreement is suspended. In case the Force Majeure situation preventing Contractor from fulfilling the obligations of the agreement lasts longer than 2 (two) months both parties have the right to dissolve the agreement without any obligation to pay damages.
In case Contractor has already fulfilled (parts of) the obligations of the agreement when Force Majeure occurs, Contractor is entitled to send Customer an invoice for those parts of the agreement that have already been executed and/or delivered. Customer is obligated to pay the aforementioned invoice in full as if it had been a separate agreement. This is not the case if the already executed or delivered parts of the agreement have no intrinsic value.
Article 19. Applicable law and Dispute Settlement
These Terms and Conditions shall be governed by and construed in accordance with the law of The Netherlands and the parties hereby submit to the exclusive jurisdiction of the courts in The Netherlands.
The courts in Contractor’s district are exclusively authorised to take cognizance of disputes, unless the cantonal court is authorised by law. Nevertheless Contractor retains the right to subpoena the Customer to appear before an authorised judge.
Article 20. Changes to and location of these terms and conditions
These terms and conditions can be found on the website of Contractor at www.voiceover-stemacteur.nl/en and via www.donzall.nl/en and can be changed unilaterally without prior notification and/or subsequent notification by Contractor.
The latest version of these terms and conditions published by Contractor on the aforementioned websites is always the applicable version.
