These General Conditions of ITV Studios Holding B.V. govern all agreements entered into by ITV Studios Netherlands B.V. (the “Principal”).
Article 1 – Definitions
The following definitions are used in these General Conditions:
End Result: the outcome, of any nature and in any form, of the Work, whether or not achieved using items of the Principal or the Service Provider (possibly in consultation with a third party).
Intellectual Property Rights: all current and future intellectual property rights worldwide (including but not limited to copyrights and neighbouring rights) that relate to all currently known and functionally or commercially similar methods of exploitation of the individual contribution from the Service Provider, the Assigned Employee or any other third party involved in the Work performed under the Agreement or the End Result.
Service Provider: the Principal’s other party to the Agreement.
Agreement: the service agreement in which the Principal instructs the Service Provider to perform the Work.
Assigned Employee: every natural person made available by the Service Provider, also being a legal entity, to perform the Work.
Fee: the fee agreed on between the Service Provider and the Principal for the performance of the Work, denominated in euros.
Work: the work performed or delivered by the Service Provider for the Principal under the Agreement, whether or not for the End Result.
Article 2 – Applicability
2.1 These General Conditions are inextricably linked with and form an integral part of the Agreement. Any general conditions used by the Service Provider (its own conditions or sectoral conditions) do not apply to the Agreement.
2.2 In the event of inconsistencies between these General Conditions and the Agreement, the provisions of the Agreement prevail.
2.3 Any agreements that differ from those set out in these General Conditions must be recorded in the Agreement in order to be valid.
Article 3 – Work
3.1 The Work is set out in the Agreement.
3.2 The instruction to perform the Work is given by the Principal and accepted by the Service Provider on the conditions recorded in the Agreement.
3.3 The Service Provider and the Principal may amend the Agreement in writing by mutual consent.
Article 4 – Fee
4.1 The Service Provider is paid the Fee for the Work. The Fee may be: (A) based on an offer made by the Service Provider and approved by the Principal; or (B) based on a fee agreed on between the Principal and the Service Provider as recorded in the Agreement. In both cases the Fee is exclusive of VAT.
4.2 The Service Provider may not charge the Principal any additional costs or any other subsequent costs without the Principal’s prior written consent.
4.3 If the Principal and the Service Provider have agreed on a Fee as referred to in Article 4.1(B) and the Service Provider or the Assigned Employee is prevented from performing the Work due to sickness, leave, a public holiday or any other cause at their risk, the Fee is adjusted and paid accordingly.
4.4 The Service Provider invoices the Work on a monthly basis, in any event no later than 30 days after completion of the Work, providing an itemised statement of the Work
performed and the VAT in question. On receipt of a proper invoice, the Principal pays that invoice within 30 days.
4.5 The Service Provider has no further claims against the Principal when the Fee has been paid. The Service Provider indemnifies the Principal against any third-party claim
in that regard.
4.6 The Principal may suspend payment if in its opinion the Service Provider or the Assigned Employee is in breach of their obligations under the Agreement. If the Service
Provider fails to remedy the breach within a reasonable period set by the Principal, the Principal has the right not to pay a part of the invoice that, in the Principal’s reasonable
opinion, is proportionate to the breach, without prejudice to the Principal’s other statutory and contractual rights.
4.7 The Service Provider does not have the right to set off any claim against the Principal.
Article 5 – Performance of the Work and delivery of the End Result
5.1 The Service Provider and the Assigned Employee perform the Work to the best of their ability and adopt a flexible approach where necessary. When performing the Work
the Service Provider complies with the rules of customary business transaction. The Service Provider and the Assigned Employee refrain from any acts that might harm the
5.2 The Service Provider may not suspend the Work.
5.3 The delivery times stated by the Service Provider are strict deadlines; exceeding of those deadlines is regarded as attributable breach.
5.4 The Service Provider informs the Principal as often as is reasonably possible and at the Principal’s first request about the progress of the Work.
5.5 If an End Result is delivered, the Service Provider warrants that the End Result meets all quality requirements and technical standards that apply to it and that can reasonably be set in that regard.
5.6 If the Service Provider is required in respect of the Work first to provide a draft of the End Result, the Principal may reject drafts provided or have them changed without any further fee being due if, in the Principal’s reasonable opinion, the drafts are not in conformity with the delivery specifications. A change to a draft is not regarded as an
amendment to the Agreement.
5.7 The risk in the End Result does not pass to the Principal until it is delivered at a location stated by the Principal. The Service Provider warrants that it is adequately
insured against damage to the End Result during the period in which such damage is at the Service Provider’s risk (before the aforesaid delivery).
5.8 The Principal is in no event required to use all or part of the End Result, in any manner.
5.9 The Service Provider must repair any defects of the End Result established by the Principal within a period set by the Principal, without charging any additional amounts.
5.10 Without prejudice to Article 7.3, the Service Provider is liable for loss inflicted on the End Result by acts or omissions of the Service Provider. The Service Provider warrants that it is adequately insured against such damage.
5.11 On termination of the Agreement for any reason, or at the Principal’s first request, the Service Provider must return the End Result to the Principal or to a designated third
party. This provision does not apply in the event of lease or loan.
5.12 The Service Provider waives any right of retention with regard to the End Result.
Article 6 – Taxes and social security contributions
6.1 By signing the Agreement, the Service Provider and the Principal enter into a services agreement under Sections 7:400 et seq. of the Dutch Civil Code. The Service Provider
expressly declares towards the Principal that it is fully independent and that the Service Provider or the Assigned Employee does not wish to enter into an employment contract
with the Principal within the meaning of Sections 7:610 et seq. of the Dutch Civil Code. The Service Provider and the Assigned Employee must make every effort to prevent an
employment contract from arising between the Service Provider or Assigned Employee and the Principal. The Service Provider indemnifies the Principal against any and all
claims in that regard.
6.2 If Work is involved to which the artiestenregeling (tax facility for performing artists) applies and Work is invoiced on behalf of the Service Provider, the Service Provider
undertakes towards the Principal to submit in a timely manner a valid withholding agent certificate (IPV) of the invoicing party. After payment to the party that has invoiced the Work on behalf of the Service Provider, the Service Provider has no further claims against the Principal.
6.3 On acceptance of the assignment or in a situation in which an application is still being handled by the authority in question, a copy of the IPV must be presented to the Principal immediately after it is issued. Until the Service Provider can submit that IPV, the Principal has the right to suspend payment of the amounts invoiced by the Service Provider or to pay them while withholding wage tax and employee insurance contributions, including employer surcharges.
6.4 The Fee constitutes the Service Provider’s gross remuneration, including employer surcharges. Any additional tax assessments, interest and penalties based on the amounts paid to the Service Provider, regardless of whether they are imposed on the Principal, the Service Provider or the Assigned Employee, are payable in their entirety
by the Service Provider and/or the Assigned Employee, which indemnifies the Principal in that regard. If the Principal is confronted with any additional tax assessments or receives notification of such assessments, it informs the Service Provider and/or the Assigned Employee accordingly within the statutory objection period(s) and gives the
Service Provider and/or the Assigned Employee the possibility, in consultation with the Principal, to file an objection.
6.5 If the Service Provider performs work governed by the artiestenregeling and invoices independently, it is possible, in consultation with the Principal and with its consent, to opt not to apply the artiestenregeling, by having the Service Provider submit a statement to that effect. That statement must also be included in the invoice presented to the Principal by the Service Provider.
Article 7 – Service Provider’s obligations
7.1 The Work may be performed only by the Service Provider or the Assigned Employee.
7.2 If the Service Provider or the Assigned Employee is unable to perform the Work, the Principal may demand of the Service Provider that the Work be performed by another
natural person, who must meet the reasonable requirements set by the Principal in the Principal’s opinion.
7.3 Without the Principal’s prior written consent, the Service Provider may not engage any third parties (other than the Assigned Employee) in the performance of the
Agreement. The Principal may make its consent, if any, subject to conditions. The Service Provider is liable at all times for the actions or omissions of the Assigned Employee or any third party engaged by it.
7.4 Both during the term of the Agreement and for a period of one (1) year after its termination, the Service Provider must refrain from any attempt to persuade persons to perform work or provide services elsewhere, and from hiring such persons or putting them to work. This applies to persons who have been in the Principal’s employment at any time during the term of the Agreement and in the preceding period of one (1) year.
7.5 If in addition to and during the term of the Agreement with the Principal the Service Provider or the Assigned Employee is requested by third parties to perform work for third parties of which the Service Provider or the Assigned Employee can reasonably expect that it will conflict with their obligations towards the Principal, the Service Provider must consult with the Principal beforehand.
Article 8 – Intellectual Property Rights
8.1 Insofar as the Work or the End Result is governed by Intellectual Property Rights, the Principal and the Service Provider agree as follows in addition to the provisions regarding the transfer of the Intellectual Property Rights in the Agreement.
8.2 The Service Provider and the Assigned Employee warrant that they have power of disposition and that the transfer of Intellectual Property Rights recorded in the Agreement has been validly effected. The transfer of Intellectual Property Rights recorded in the Agreement is irrevocable and unconditional. The Principal is therefore entirely free to exploit or arrange for the exploitation of the Intellectual Property Rights without any restriction, worldwide, in whole or in part, in their current form or in an amended form, in any manner, to any extent, and via any current or future medium whatsoever (in any event including exploitation by means of television, radio, the Internet, telephony and mobile telephony, cable, satellite, video, DVD, CD, CD-ROM, Blu-ray, magazines, books, etc.). The Service Provider expressly acknowledges that this transfer means that neither the Service Provider nor the Assigned Employee may multiply or disclose or otherwise use or exploit any Intellectual Property Rights without the Principal’s consent.
8.3 The Service Provider warrants that (i) the results achieved by the Service Provider or the Assigned Employee in performing the Work; and (ii) the End Result do not infringe any third-party intellectual property rights. The Service Provider indemnifies the Principal against any claims and against any resulting loss (including but not limited to the costs of legal assistance and settlement amounts) related to the breach of this warranty.
8.4 The Service Provider and the Assigned Employee waive all personality rights within the meaning of Section 25 of the Auteurs wet (Copyright Act) and Section 5 of the Wet
Naburige Rechten (Neighbouring Rights Act) and all foreign equivalents of those Acts insofar as those Acts allow for that possibility.
8.5 Both during the term of the Agreement and after its termination, and insofar as the transfer of the Intellectual Property Rights and/or the waiver of personality rights referred to in this article has not yet or not yet been lawfully effected in its entirety in the Principal’s opinion, the Service Provider and the Assigned Employee must fully cooperate in effecting that transfer/waiver, which includes the signing of documents.
8.6 Both during the term of the Agreement and after its termination, the Service Provider and the Assigned Employee must provide all the cooperation required to enforce the
Intellectual Property Rights in relation to third parties.
8.7 The Service Provider warrants that the Assigned Employee will conform to the obligations set out in the Agreement, these General Conditions and the End Result, and
this Article 8 in particular. The Service Provider warrants that the Assigned Employee and all other natural persons involved in the Work will provide all the cooperation requested by the Principal, without the Service Provider stipulating any further conditions and at the Principal’s first request, in order to formalise the transfer and waiver of rights referred to in this article, including the signing of documents. Notwithstanding the following provision, the Service Provider is liable for any loss incurred by the Principal as a result of breach of the warranties referred to in this article.
8.8 The Service Provider hereby declares that the Fee constitutes adequate compensation for the transfer of the Intellectual Property Rights. The Fee also includes the reasonable compensation referred to in Sections 25c(1) and 45d(1) of the Copyright Act. The transfer of rights described in the Agreement is without prejudice to any claims for compensation for the Service Provider and/or the Assigned Employee arising directly from statutory obligations, such as the entitlements to the public lending right and private copying payments and the proportional compensation under Section 45d(2) of the Copyright Act.
Article 9 – Confidentiality
9.1 Both during the term of the Agreement and after its termination, neither the Service Provider nor the Assigned Employee may make any statement in any form or in any
manner regarding or related to information that comes to their attention in performing the Agreement in respect of the business operations and interests of the Principal and its affiliated companies, in particular information that has come to the attention of the Service Provider or the Assigned Employee regarding the business operations or private
affairs (in the broadest sense of the word) regarding the Principal, its shareholders and its managing directors. This duty of confidentiality also applies to information that has come to the attention of the Service Provider and/or the Assigned Employee before, during or after the Agreement regarding the Work, the End Result or the creation,
recording, production, development or preparation of a programme. This duty of confidentiality also applies to the distribution of all the aforesaid information via social media, such as Instagram, Facebook, blogs, YouTube, Twitter, Snapchat and LinkedIn. The Service Provider may furthermore not make, commission, disclose or cause the disclosure of any visual or sound recordings, such as photographs and video recordings, either during the term of the Agreement or after its termination. This also applies to the publication of material on private pages of social media. This duty of confidentiality also applies to all information on other contacts of the Service Provider that comes to the
attention of the Service Provider or the Assigned Employee on the grounds of the Work or the Agreement.
9.2 On termination of the Agreement or at the Principal’s first written request, the Service Provider must within 10 (ten) working days return to the Principal all confidential
information made available to it and/or remove it from its electronic files and destroy it (while providing written confirmation of destruction).
9.3 Without the Principal’s prior written consent, the Service Provide and the Assigned Employee may not disclose the existence and the performance of the Agreement or otherwise generate publicity on that basis. The Service Provider or the Assigned Employee therefore requires the Principal’s prior written consent in order to use the Principal’s trade name, trademark or any other distinguishing mark, e.g. as a reference.
Article 10 – Liability and indemnity
10.1 The Principal is not liable for any loss incurred by the Service Provider, the Assigned Employee or any third party engaged, of any nature, except insofar as that loss is due to intent or gross negligence of the Principal.
10.2 The Service Provider indemnifies the Principal against any third-party claims (including but not limited to the costs of legal assistance and settlement amounts) related to breach of the provisions of the Agreement or these General Conditions by the Service Provider or the Assigned Employee.
10.3 The Service Provider is liable for the loss defined in Sections 6:95 et seq. of the Dutch Civil Code, resulting from or related to any breach of the Agreement or these General Conditions.
10.4 The Service Provider warrants that it will be adequately insured during the term of the Agreement against any and all loss (including but not limited to loss as a result of
physical injuries or death) resulting from or related to the performance of the Agreement. The Service Provider must give the Principal access to the applicable insurance
policy/policies at its first request.
Article 11 – Duration and termination
11.1 Insofar as applicable, the duration of Agreement is set out in the Agreement. After the term of or on completion of the Work, the Agreement ends by operation of law without any further liability, including liability for damages, on the part of the Principal towards the Service Provider.
11.2 Notwithstanding the provisions of Book 6 of the Dutch Civil Code, the Principal may prematurely terminate the Agreement with immediate effect and without any liability for damages if the Service Provider is wound up or liquidated, if a liquidation petition is filed with regard to or by the Service Provider, if the Service Provider is declared insolvent or applies for or is granted a suspension of payment, or if another party gains control over more than 50% of the Service Provider’s business.
11.3 If performance by the Service Provider is impossible due to an event of force majeure, the Principal may terminate the Agreement without any liability for damages if the event of force majeure lasts longer than 14 days, with or without interruption.
11.4 Notwithstanding the above provisions, the Principal may at any time during the term of the Agreement terminate the Agreement prematurely and with immediate effect,
without any liability for damages towards the Service Provider and/or the Assigned Employee. The Principal will, however, pay the Fee within reason, pro rata to the Work
11.5 Articles 1, 6, 7, 8, 9, 10, 12, 13 and 14 continue to apply in full after termination or dissolution (ontbinding) of the Agreement.
Article 12 – Penalty
On breach of one or more of the provisions of Articles 7, 8 or 9, the Service Provider forfeits both an immediately payable penalty, not subject to setoff, of EUR 25,000, and a
penalty of EUR 2,500 for each day on which the breach continues, notwithstanding the Principal’s right to claim full damages or to demand specific performance. Sections 6:92
and 6:93 of the Dutch Civil Code do not apply.
Article 13 – Final provisions
13.1 The Agreement sets out all the agreements made between the Service Provide and the Principal and takes the place of any and all earlier agreements (oral, in writing or
other) made between the Service Provider and the Principal in respect of the Agreement.
13.2 The Service Provider may not transfer its rights and obligations under the Agreement to a third party without the Principal’s consent.
13.3 The Principal may at any time transfer its rights and obligations under the Agreement to a third party. The Service Provider hereby gives its consent for such future
13.4 The Agreement may be amended only by means of a written document signed by both the Principal and the Service Provider. The Principal may unilaterally amend these
General Conditions at any time. The Principal informs the Service Provider of such amendments in writing.
13.5 If it is established that one of the articles of the Agreement is void, that does not affect the validity of the other provisions recorded in the Agreement. The Service Provider
and the Principal then consult to agree on a new, valid provision.
13.6 The Service Provider warrants that it is not and has not been guilty of corruption in any manner.
13.7 The Service Provider gives the Principal access to all information required to verify that no corruption has occurred.
13.8 The Service Provider indemnifies the Principal against all consequences of breach of the anticorruption warranty.
Article 14 – Governing law and dispute resolution
14.1 The Agreement and these General Conditions are governed by Dutch law. The United National Convention on Contracts for the International Sale of Goods (CISG 1980)
does not apply.
14.2 Any and all disputes or legal proceedings that may arise between the Service Provider and the Principal in respect of these General Conditions or any resulting agreement, regardless of its nature, either contractual or non-contractual, will be settled exclusively by the competent court in the district of Amsterdam, the Netherlands.