general terms and conditions of funk-e animations.

for the production of animated explanations in the netherlands 

 

For all contracts undergone by Funk-e animations B.V. – in the following Funk-e – these General Terms and Conditions (GTC) shall be applicable subsidiary to the contract. 

§1 Application of the GTC

(1) These General Terms and Condition (GTC) shall be applicable for contracts with other corporations, legal entities. Other general terms and conditions of customers shall only be applicable with our formal prior written consent.

(2) These GTC shall also be applicable for any and all future businesses with customer in contracts on similar business.

 

§2 Offer and conclusion of contract

Due to the special nature of the Funk-e products, contracts are only concluded based on these GTC. In case orders of customer are to be seen as offer, we can within a time span of two weeks accept; nonetheless we reserve the right to place counteroffer according to our usual contract structure instead.

 

§ 3 Documents and data

In regards to any and all documents and data supplied to customer in connection with this contract such as calculations, visualizations, the storyboard etc. we reserve the property as well as copyright. These documents and data shall not be made available for third persons unless customer has our prior written consent to do so. In case an offer according to § 2 is not accepted or the contract is not concluded, all documents and data shall be returned to us.

  

§ 4 Price and Payment

(1) Unless otherwise held in the contract, our prices as stipulated in the contract shall be applicable for the process of production agreed upon. Changes above the agreed volume in terms of additional seconds, additional changes or other extra services will be invoiced separately.

(2) The Payment of the agreed price shall be made on the bank account named below. Deductions or allowances shall only be made after prior written consent.

(3) Unless otherwise agreed, payment is to be made within 10 days after completion of the animation. Interest on account of delay shall be 8 % p.a. The right to claim further damages for the delay is reserved.

(4) For the production of Animations that are being conducted after three months or later after date of the contract, appropriate changes of prices according to the changes for labor, material or production costs are reserved.

 

§ 5 Offset and right of retention

Customer has the right to set off payments only in cases in which counterclaims are being held by enforceable court decisions or beyond dispute. A right of retention shall only be legitimate in cases in which the counterclaim is based on the same kind of contractual relationship.

 

§ 6 Usage rights and restrictions

General stipulations

(1) Funk-e warrants that it is entitled to license the copyright of the animation style and authorized to enter into this agreement.


(2) The following uses are generally prohibited for all animations:

a) Use of the animation in a way that is considered by either Funk-e or by law as pornographic, abusive, in breach of the law, immoral or in any other way potentially prejudicial to Funk-e or any other person or a use that could destroy trust in Funk-e with other Clients or its economic environment.

b) Use of the animation or the audio to the animation on television or radio. The Client must give prior notice to Funk-e if the Client intends use on radio so that Funk-e can evaluate, make up its mind and in case of approval purchase the appropriate rights for the audio. The Client will have to cover any and all arising internal costs at Funk-e as well as costs payable for rights the audio.

c) Showing the animation in a different way than via the YouTube account of Funk-e and for other than reasons of evaluation during the payment term and after the payment deadline has expired if the complete payment has not yet been made.

(3) Furthermore depending on the kind of animation (Diamond, Branded, Simple, Basic) additional stipulations apply as stated below.

(4) Any infringement of these stipulations entitles us for compensation of damages and injunctive relieve of usage in disaccord with the contract as well as in gross infringement of the contract for complete cancellation of the usage right.

For Branded and Diamond Animation

The Client may use the animation freely online and offline except for the animation or the audio on television or radio. The Client may use the animation in its unaltered or altered form in the following ways:

a) Making the animation available offline; the inclusion of the animation in one or more other works for offline publication; and the reproduction of the animation that has been included in the other works for offline publication. This includes advertising, promotional projects and presentations.

b) The online availability of the animation, individually and as part of another work; This includes:

For Simple und Basic Animation

(1) The Client may use the animation only in its unaltered form in the following ways:


a) Making the animation available offline; the inclusion of the animation in one or more other works for offline publication; and the reproduction of the animation that has been included in the other works for offline publication. This includes advertising, promotional projects and presentations.

b) The online availability of the animation, individually and as part of another work; This includes:

c) Any and all other use shall only permitted with prior written consent of Funk-e.


(2) The Client may use the animation only as stated above. Any and all other uses are strictly prohibited. Including but not limited to the following prohibited uses:

a) Using the animation in an altered form than the one it was supplied in by Funk-e. With the exception of changes to the file format, as long as such changes do not affect the content or the duration of the video.

b) Use of the animation for sale or other distribution with the aim of making a profit.


c) The removal or change of copyright marks or trademarks, or other proprietary marks, such as the logo 'produced by Funk-e', from any of the places where they are located..

d) The sub-licensing, selling, renting out, giving away or otherwise transferring or distributing of the animation or the rights obtained in this license.

e) Using screenshots, artwork, characters or other elements of the animation in a separate form, e.g. on a website, in a brochure or in an other animation not produces by Funk-e. For these purposes, the Client must in advance and in written obtain a special license from Funk-e.

 

§ 7 Delivery and Time of Delivery

(1) The Animation is being delivered as a rendered file. The animation file, the illustration file and aftereffect file remain with us and customer does not obtain any rights on these files.

(2) The time of delivery is subject to the fulfillment of all obligations to co- operation by customer. These obligations to co-operation include for example the timely and complete delivery of all information, the participation of both one person with necessary knowledge about the explainable topic and one person with decision-making power at the storyboard meeting and the timely confirmation of the storyboard. Defense of lack of performance of the contract is reserved.

(3) In case of default of acceptance by customer or in case of culpable non-performance of co-operation duties, we shall be entitled to damages arising out of failure by customer, including but not limited to extra costs. The risks of loss or of worsening or of accidental perishing of the product in times in which customer is in default of acceptance or payment is on customer’s side. In particular we are not liable to share the animation online or to save and safely store the data for these times, where customer is in default.

(4) For damages for delay in delivery, which have been caused neither by gross negligence nor on purpose, we are liable to a flat-rate compensation of 3 % of the total price per week, in no case more than 10 % of the total price.

(5) Further legal rights or claims by customer on grounds of delay in delivery remain unaffected.

 

§ 8 Transfer of perils

In case of transfer of the finished animation to customer, at the latest at the point of time when the product leaves our premises the risk of the shipment is with customer including but not limited to the risk of accidental perishing or accidental worsening. This shall apply independently from the starting point of shipment and independently of who is covering the costs for shipment. We are not obliged to save the animation and the files that were made to produce the animation after final approval. In case no final approval takes place, the data is not being stored more than five years.

 

§ 9 Reservation of property rights and cancellation of license

(1) We reserve the sole property on the product until full payment is made. This will also apply to all future contracts, even if not explicitly referred to.

(2) We are entitled to cancel customer’s license in case of gross violation the contract by customer, in case of gross harm or gross damages against us, including but not limited to the customer using our animation styles for his own animations or animations by third parties. The customer commits himself for as long as the use right is not transferred to him to only use the animation for internal evaluation. In case customer wishes to make amendments to the animation, customer is obliged to have them made by us. Customer has at any time to inform us in case the animation is subject to execution or in any other way being endangered by infringement of our rights by third parties. Should the third party not be able to reimburse the costs of judicial and extrajudicial costs of prosecution, customer will be liable for the cash loss.

 

§ 10 Warranties, letter of complaint, right of recourse

(1) Prerequisite for warranty is the fulfillment of customer’s obligations to inspect and object and a detailed letter of complaint containing all objections to the product at the soonest point of time possible.

(2) Warranty claims are time-barred after 12 months after the delivery of the rendered files to costumer.

(3) Should the product despite all due care have any defects that already existed at the time of transfer of perils, we will subject to timely delivery of a full letter of complaint and by our choice amend the product or deliver a new product. In this case, customer is obliged at any time to give us opportunity within appropriate time to amend the product. Right of recourse remains unaffected.

(4) Should an amendment to the product not be possible, customer is entitled to cancel the contract or reduce the payable price accordingly – notwithstanding possible further compensation for damages.

(5) Claims of warranties shall not be granted in cases in which the product is only in slight disaccord with the agreed product, in cases of only slight impairment in the use of the product or of damages that only arose after transfer of perils caused by inadequate treatment, inadequate method of saving the product, inadequate hard- or software or as a consequence of special external influences, that where not predictable according to the contract. Is the product amended or changed by the customer or third parties, there are no warranties by us for any consequences arising out of these changes and amendments. We reserve the right to further damages and other legal consequences from such amendments or changes.

(6) Requests for changes of the product on which the regulations on warranty are not applicable – such as change of style, of language or in the detailed design of the product – are being made within the extra time agreed in the contract for changes. Further changes or further times necessary for changes are subject to regular extra payment. Amendments that were made under the claim of warranties for which the regulations on warranties turn out to be not applicable, these amendments shall be paid like regular amendments.

(7) Amendments to our product are only to be made through us. Amendments by third parties or by the customer are prohibited unless granted according to the use rights of the product; in this regard, we reserve all rights including but not limited to compensation for damages and injunctive relief.

 

§ 11 Miscellaneous

(1) This contract and all contractual relationships between the parties underlie the Laws of the Kingdom of the Netherlands excluding the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) Place of fulfillment and exclusive place of jurisdiction for resolution of all disputes shall be our place of business unless otherwise agreed in the contract.

(3) All agreements are made in this contract and the GTC, there are no side agreements and no oral agreements. Any changes to this contract shall be made in written.

(4) Changes and Additions to the project can also be made via email. The power of representation for such changes on our side can only be subsumed, if such email correspondence is dealt with by the management of the company or the respective project manager. It is held that the core stipulations herein – including but not limited to the terms on usage rights, the reservation of property rights, the cancelation of the license or the terms on warranties or compensation for damages – can not be amended via email but need a written agreement.

(5) Amendment of the necessity to make all agreements in written must as well be made in written – email under no circumstances be sufficient for this amendment.

(6) This contract as such shall remain valid even if particular stipulations are proved to be or become invalid or incomplete. The parties stipulate instead of the invalid or incomplete clause to implement a permitted and complete clause that in essence replaces the invalid or incomplete clause as good as possible according to the economic grounds of this clause.

 

 

Funk-e animations B.V. •
 Aert van Nesstraat 45 • 3012CA • Rotterdam • The Netherlands

Tel: 010-4132734 • www.funk-e.nl • e-mail: info@funk-e.nl

Rabobank 1029.62.499 • BTW-nr. NL0028728697 • KvK-nr. 24453149