Terms and Conditions - First Impression

Article 1: Scope, definitions

In these General Terms and Conditions, the following definitions apply:

Delivery/deliver: the actual making available of the goods to the Other Party or the point at which the agreed work is completed by First Impression and the work is ready for delivery;

First Impression: First Impression Audiovisual B.V. and/or First Impression Events B.V. and/or First Impression Solutions B.V. and/or First Impression International B.V. and/or First Impression France SAS and/or First Impression Germany GMBH;

Written/in writing: this also includes by e-mail or any other means of communication that can be equated with this according to the state of the art and generally accepted standards;

Other Party: the other party, not being First Impression. Such party may be a purchaser and/or hirer of goods and/or a client, or may be a party to any other legal relationship with First Impression.

Article 2: Applicability of General Terms and Conditions

The provisions of Chapter 1 of these General Terms and Conditions apply to every legal relationship between First Impression and the Other Party. Chapter 2 contains additional provisions on specific legal relationships specified in that chapter. These provisions apply in addition to those in Chapter 1.
In case of any conflict between the provisions of Chapter 1 and Chapter 2, the provisions in Chapter 2 prevail.

Chapter 1 – General Provisions

Article 3: Extension of protected persons – third-party clause

These Terms and Conditions are also stipulated for the benefit of legal entities affiliated with First Impression, the direct or indirect directors and shareholders of First Impression and legal entities affiliated with them. In addition, these Terms and Conditions apply to all persons working for First Impression and affiliated legal entities, including any third parties engaged. They may invoke these Terms and Conditions to the same extent as First Impression.

Article 4: Offers, quotations

All offers or quotations made by First Impression are without obligation unless they contain a deadline for acceptance. If an offer or quotation contains an offer without obligation and such offer is accepted by the Other Party, First Impression has the right to revoke the offer no later than within two working days after receipt of acceptance.
The prices used and stated by First Impression in offers, quotations and/or price lists are exclusive of VAT and any costs, such as transport and administration costs and invoices from third parties engaged.
An agreement is only concluded between First Impression and the Other Party if First Impression has confirmed this to the Other Party in writing, or if First Impression has commenced performance thereof.
First Impression is entitled to increase the price agreed upon between the parties if (cost) price-increasing circumstances occur for First Impression between the date of entering into the agreement and the performance thereof that are the result of new or amended legislation and regulations, currency fluctuations or price changes made by suppliers or third parties engaged by First Impression, or unavailability of the goods to the suppliers usually engaged by First Impression.

Article 5: Performance of the agreement

The Other Party is obliged to supply all data required for the performance of the agreement by First Impression in a timely manner, whether at First Impression’s first request or not. If the necessary data is not provided in a timely manner or is incorrect, the Other Party is obliged to reimburse First Impression for any costs resulting therefrom.
Any technical and other requirements imposed by the Other Party on the goods to be delivered or created that deviate from the requirements customary in the industry in the Netherlands must be explicitly reported by the Other Party in writing prior to the conclusion of the agreement.
First Impression is entitled to deliver items that deviate from what was agreed upon, if it concerns changes to the items to be delivered, packaging or related documentation that are required to comply with applicable statutory provisions, and if it concerns minor changes that represent an improvement.
First Impression will perform the agreed work to the best of its knowledge and ability. With respect to the agreed work, a best-efforts obligation (inspanningsverbintenis) applies as per Dutch law.
First Impression shall determine – in consultation with the Other Party – the manner in which the work will be performed and who will perform the work. First Impression is permitted to engage third parties to perform the work.

Article 6: Other Party’s obligations

The Other Party shall further ensure that:
1. First Impression is granted access to the location where the work is to be performed at the working hours announced and agreed upon in advance. The location must comply with statutory safety requirements and other government regulations, and the performance of the work must not be impeded by other third parties engaged by the Other Party or employees of the Other Party, including delays in the performance of their work;
2. the data carriers and other hardware, electronic files, software and the like provided by the Other Party to First Impression are free of viruses and/or defects;
3. the systems, hardware, software and other data infrastructure used by the Other Party are adequately secured;
4. the instructions, information, designs and/or other documents provided by the Other Party to First Impression and/or equipment, software or materials made available do not infringe the rights of third parties;
5. First Impression has timely access to sufficient opportunity for supply, storage and/or disposal of materials and resources;
6. First Impression can access connections to energy required for the performance of the work, such as electricity, gas, water or specific resources or facilities desired by the Other Party. Energy costs are borne by the Other Party. Lost labour hours as a result of a failure to provide access to the energy required are borne by the Other Party;
7. the location where items of First Impression are to be stored prevents damage in any form and by any means, or theft.
The risk for items that are under the management of First Impression because of the work to be performed is borne by the Other Party.
If the Other Party fails to comply with its obligations under this article on time or at all, First Impression is entitled to suspend its work and the Other Party shall compensate First Impression for any additional costs, including lost labour hours.
The Other Party shall indemnify First Impression against all claims made by third parties resulting from the Other Party’s failure to comply with the obligations set forth in this article. The Other Party is obliged to compensate for all damage suffered by First Impression in this respect, including the full costs of defence.

Article 7: Delivery and delivery/completion dates

Goods must be delivered to the location designated by the Other Party. Goods are transported to the Other Party at the risk and expense of the Other Party. The Other Party may take out insurance against these risks. If and in so far as First Impression not only delivers the items but also installs them, First Impression may unilaterally also decide to transport the items at its risk and expense, in a manner that it determines, to the location designated by the Other Party.
If it is agreed between the parties that First Impression solely (i.e. without the involvement of a third party) will deliver the items to the Other Party, then delivery is at the risk and expense of First Impression.
Delivery/completion dates agreed upon between the parties are not strict deadlines. First Impression makes every effort to meet the delivery/completion dates provided.

Article 8: Additional work

dditional work will be billed immediately after performance thereof, once the work has been completed by First Impression. Additional work performed is subject to the provisions of these General Terms and Conditions in full.

Article 9: Completion, approval and maintenance period

Once First Impression has completed its work for the Other Party, it shall notify the Other Party. The Other Party must then approve and accept the work, whether subject to completion checks or not. When the work is put into use, the work is considered completed and is deemed to be tacitly accepted by the Other Party.
After completion, the work is at the risk of the Other Party.
First Impression is released from any liability for defects that the Other Party should reasonably have discovered at the time of completion.
If and in so far as the agreement concluded between the parties is regarded in whole or part as a purchase agreement, or in the event of a ‘mixed agreement’, non-visible defects identified after completion or delivery must be reported to First Impression in writing within 14 days of discovery but no later than one year after Delivery, on penalty of forfeiture of rights.
In the event that the Other Party wishes to return certain goods, First Impression is entitled to charge the following restocking fee:

for uninstalled items in good condition and in the original packaging : 50% of the purchase price.
for items already installed and not in the original packaging: 75% of the purchase price, provided that the goods can be uninstalled without damage.
for customised products: 100% of the agreed price.

Article 10: Termination by mutual consent

In so far as there is a contract for services, the Other Party may terminate the contract in writing early but only for serious reasons as referred to in Article 7:408 paragraph 2 of the Dutch Civil Code (Burgerlijk Wetboek).
In the event of early termination for serious reasons, the Other Party is liable for a proportion of the wages to be reasonably determined in accordance with the provisions of Article 7:411 of the Dutch Civil Code.
In the event there is a licence agreement for the software developed by First Impression, then this licence is granted for a period of one year, unless otherwise agreed between the parties. Upon expiry, the initial period is continuously and automatically renewed for a period of one year, unless written notice of termination is given by either Party at least one month before the end of the applicable term.

Article 11: Liability

First Impression is insured for any damage or loss arising worldwide and related to goods delivered or supplied by it or the performance of work up to a maximum amount of €2,500,000 per claim and €5,000,000 per year.
First Impression’s liability is limited to the amount paid out by First Impression’s insurance, plus the excess. A series of related events counts as one event.
If for any reason the insurance does not provide coverage or does not pay out, any right to compensation of the Other Party vis-à-vis First Impression is limited to a maximum of the invoice value of First Impression’s performance during the period in which the event occurred, unless the event is the result of or relates to an individually billed performance or an individual portion thereof, in which case compensation is limited to a maximum of the invoice value thereof. For any agreement with a term longer than six months, liability is limited to the proportion of the fee due for the previous six months.
The Other Party is never liable for:

indirect damage or loss such as trading loss/consequential loss, including, for example, business interruption loss and loss of profit;
intangible loss;
costs incurred by the Other Party under Article 9: within First Impression’s remedy period (e.g. inspection/shipping costs)

The limitations above do not apply if the damage or loss is due to intent or deliberate recklessness on the part of First Impression or persons charged with the management of its business.
The Other Party shall indemnify First Impression against any claims made by third parties related to or arising from the agreement performed by First Impression. The Other Party is obliged to compensate for any damage or loss suffered by First Impression in connection therewith, including the full costs of defence against a claim made by the third party.
Any legal claim made by the Other Party against First Impression lapses one year after the Other Party became aware of it and/or was able to enforce its legal claim against First Impression.

Article 12: Payment

Invoices sent by First Impression must be paid within 30 days. If the Parties have agreed on a monthly amount, whether based on a monthly licence for the use of software or not, such agreed monthly amount must be received by First Impression in advance no later than the first day of the month.
First Impression is entitled to conduct a credit check on the Other Party. If, in First Impression’s opinion, a credit check results in a negative assessment of the Other Party’s creditworthiness, First Impression is always entitled to require payment to be made before delivery and/or performance, regardless of whether the invoice period referred to in Article 12.1 has already expired. If the Other Party defaults on any payment obligation toward First Impression, the Other Party is liable for interest on the amount due at the rate of 1.5% per month, plus extrajudicial collection costs set at 15% of the outstanding invoice amount.
First Impression is always entitled to set off any and all amounts receivable, whether due and payable or not, from the Other Party and/or an affiliate of the Other Party against any counterclaim made by the Other Party and/or an affiliate of the Other Party. The Other Party is not entitled to set off any claims it may have against First Impression without First Impression’s consent. The Other Party is not entitled to any right of suspension vis-à-vis First Impression. ‘An affiliate of the Other Party’ means the company belonging to the same group within the meaning of Article 2:24b of the Dutch Civil Code and a stake within the meaning of Article 2:24c of the Dutch Civil Code.

Article 13: Confidentiality

The parties mutually undertake to maintain confidentiality with respect to each other’s information they have become aware of and communication of which to third parties can and may be assumed would prejudice the interests of that party. The party receiving confidential data shall use it only for the purpose for which it was provided. Data is in any case considered confidential if it is designated as such by either party.

Article 14: Intellectual property rights

All intellectual property rights relating to the software, data files, equipment or other materials such as analyses, designs, documentation, reports and offers, as well as preparatory materials and the application programs made with them and other performances thereof, developed pursuant to the agreement and/or made available to the Other Party, are vested exclusively in First Impression, its licensors and/or its suppliers and are exclusively intended to be used by the Other Party within the framework of the offer and/or agreement.
The Other Party only acquires the rights of use expressly granted to the Other Party under these General Terms and Conditions, the agreement between the parties and the law. Any right of use granted to the Other Party is non-exclusive, non-transferable to third parties, not pledgeable and not sub-licensable. If the foregoing provisions are breached by the Other Party, the Other Party shall forfeit to First Impression a penalty payable immediately of €5,000 for each breach and €5,000 for each week that the breach continues. In addition, First Impression retains its right to compensation for all damage and loss suffered.
First Impression reserves the right to use the knowledge gained by the performance of the work/services for purposes other than the performance of the agreement, to the extent that no confidential information of the Other Party is brought to the knowledge of third parties.
If and in so far as software is developed specifically for the Other Party, the intellectual property rights in respect of the software developed for the Other Party remain with the Other Party. With respect to underlying ‘basic software’, the intellectual property rights to such software belong to First Impression. The Other Party acquires a free perpetual licence to use this software for the purpose of the manufactured custom software. The intellectual property rights acquired are transferred to the Other Party once the agreement has been fully performed and the Other Party has fulfilled its contractual obligations, including regarding payment, towards First Impression.

Article 15: Security

Ownership of items such as hardware delivered by First Impression is not transferred until all claims arising from the agreement(s) concluded between the parties have been settled.
Items subject to retention of title may not be processed by the Other Party and may only be resold in the ordinary course of business.
The Other Party must insure the goods delivered under retention of title and ensure they remain insured during the period for which they are subject to retention of title. The Other Party must provide this insurance policy for inspection at First Impression’s first request.

Article 16: Force majeure

In situations of force majeure as defined in Article 6:75 of the Dutch Civil Code, including an epidemic or pandemic, First Impression’s delivery and other obligations are suspended. If the period for which First Impression is unable to comply with its obligations due to force majeure lasts longer than can reasonably be expected of either party, then both parties are entitled to dissolve the agreement without either party being liable to pay any compensation.
If First Impression has already partially fulfilled its obligations when the force majeure occurs or can only partially fulfil its obligations, it is entitled to invoice separately for the parts already delivered or deliverable, as applicable, and the Other Party is obliged to pay such invoice as if it were a separate agreement. However, this does not apply if the parts already delivered or deliverable have no independent value.

Article 17: Recoverability of claims & suspension/dissolution

All claims made by First Impression against the Other Party are immediately due and payable in the event that:

the Other Party defaults on any of its obligations toward First Impression;
circumstances that come to First Impression’s knowledge after the agreement has been concluded give it good reason to fear that the Other Party will not fulfil its obligations;
the Other Party is in default with respect to its obligations toward its bank.
by the Other Party or a third party: in respect of the Other Party, suspension of payments, bankruptcy, any (form of) insolvency procedure or judicial or extrajudicial debt restructuring is applied for or offered, or; attachment is levied on a substantial part of the Other Party’s property or on goods under the control of the Other Party that are the property of First Impression or on goods of the Other Party to which First Impression has a security right;
one or more of the aforementioned circumstances occur with respect to an affiliate of the Other Party that has entered into an agreement with First Impression.

In the cases mentioned under the second to fifth points, the Other Party is in default. In all cases, First Impression is entitled after default to suspend further performance of the agreement, or to dissolve the agreement or to terminate it with immediate effect, without the need for judicial intervention and without prejudice to First Impression’s right to claim compensation.

Article 18 : Applicable law/competent court

The legal relationship between First Impression and the Other Party is governed by Dutch law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Only the Dutch courts are competent to hear any disputes between First Impression and the Other Party. The court in Breda has exclusive jurisdiction subject to the applicability of Article 93 of the Dutch Civil Procedure Code (Wetboek van Burgerlijke Rechtsvordering). However, First Impression remains entitled to bring action against the Other Party before the competent court of the Other Party’s place of residence.

Chapter 2 – Specific Provisions

Article 19: Provisions on rental of items

This article applies to any legal relationship in which First Impression acts as provider.
The rental period commences on the date and at the time agreed, or at the time when the rented item is handed over to the Other Party in accordance with the provisions of Article 19.3, if the latter takes place earlier.
Rented items are provided by making them available in First Impression’s warehouse and/or premises (‘ex works’).
In the event of provision by First Impression at locations designated by the Other Party, the rental period is deemed to have commenced at the time the rented item leaves First Impression’s warehouse and/or premises.
The rented item must be returned by the Other Party in the packaging in which it was delivered (if applicable), on the agreed end date or at the agreed time. If the Other Party fails to comply with this, it shall forfeit a penalty equal to the regular daily rental fee per day or part thereof, in addition to the regular daily rental fee, which continues until the agreed end date or time. In addition, First Impression is entitled to claim additional compensation from the Other Party. The parties expressly deviate from the provisions of Article 6:92 paragraph 2 of the Dutch Civil Code.
Defects in the rented item, as well as damage and loss or theft thereof, must be reported to First Impression in writing immediately, but no later than 24 hours after discovery, stating all details. The Other Party is also obliged to lend all cooperation deemed necessary by First Impression at that time, failing which the Other Party is liable for all damage or loss suffered by First Impression as a result of such lack of cooperation.
If First Impression repairs defects to the rented item within a reasonable period of time after the defect is reported, the Other Party remains liable for the rental fee for the duration that the rented item cannot be used, unless there are defects as referred to in Article 7:209 of the Dutch Civil Code.
The Other Party is not permitted to make any changes to or on the rented item without the prior consent of First Impression. Repair of defects and/or damage by the Other Party may only be performed by or with the express prior written consent and instructions of First Impression.
The rented item must be returned in the same condition (subject to normal wear and tear) in which the Other Party received it when it was made available.
The Other Party is prohibited from dismantling the rented item in whole or part.
The Other Party is prohibited from selling, re-letting, subletting, lending or otherwise making the rented item available to a third party without First Impression’s prior written consent.
First Impression is only obliged to maintain the rented item if the Parties have so agreed.
Notwithstanding the provisions of Article 12.1, invoices from First Impression must be settled by bank transfer in Euros within fourteen days of the invoice date. First Impression is entitled to require advance payment before making the rented item available if it deems this necessary for whatever reason. The provisions regarding the credit check in Article 12.2 apply in full.
First Impression is entitled to require a security deposit to be paid by the Other Party prior to the commencement of the rental period.
In the event of theft, loss or destruction of the rented item during the rental period, the Other Party is liable to pay First Impression the rental fee up to the agreed end date. The Other Party is also obliged to compensate First Impression for any loss suffered by First Impression as a result of the theft, loss or destruction of the rented item. The parties set this loss at the new-for-old value of the rented item.
In case of damage (except for normal wear and tear) to the rented item or parts and/or accessories thereof, the Other Party is obliged to reimburse First Impression for the costs involved in repairing the damage. The same applies to theft of parts and/or accessories of the rented item. In addition, the Other Party is obliged to compensate First Impression for any loss suffered by First Impression as a result of such aforementioned damage to the rented item or theft/loss of parts and/or accessories, such as, but not limited to, loss owing to stoppage and loss of profit.
First Impression is entitled during the rental period to inspect the condition of the rented item and the manner of its use. The Other Party must ensure that First Impression or its authorised representative is granted access to the rented item.
The Other Party shall in any case insure the rented item for the usual risks during the term of the rental agreement, such as damage to, and loss and destruction of, the rented item.
In the event audio equipment is rented out for the purpose of one or more events, First Impression draws attention to, without being obliged to do so, the organiser’s duty of care with regard to limiting, as much as possible, the chance of causing hearing damage to visitors to the event. The Other Party shall indemnify First Impression against any claims made by third parties arising from the rented item or use thereof.

Article 20: Special Effects

This article applies if the Other Party uses work that involves the use of special effects.
First Impression provides special effects in mutual consultation with the Other Party, in which hazardous substances may be used where appropriate. In this context, First Impression also always has a best-efforts obligation.
The Other Party must ensure and is responsible for ensuring a safe working situation, which includes taking reasonable precautions and safety measures including, but not limited to, suitability of space, crowd control, safe distance between attendees and the special effects, suitable and working fire extinguishing equipment, and protection from weather.
However, the Other Party is aware that the use of special effects may still pose a risk of damage to persons and goods despite the measures mentioned in paragraph 3. The Other Party accepts this risk.
First Impression is not liable for any damage or loss caused by the use of special effects, except in the event that it fails to take such precautions as it deems reasonable and necessary.

Article 21: Creative Agency

This article applies if First Impression has undertaken to create and/or supply and/or distribute content and/or visual expressions and/or develop concepts for the Other Party.
First Impression shall support the Other Party in setting up and applying content and developing concepts and only has a best-efforts obligation in this regard.
The Other Party is responsible for the substance, timing, results and further consequences of the content and/or developed concepts, regardless of whether the content and/or developed concept is ultimately distributed by First Impression or the Other Party.
First Impression shall make every effort to correct the transmission, programming, scripting and/or logarithmic errors that lead to inaccuracies and/or discrepancies in the content as soon as possible. The same applies to content failures and/or unavailability. However, First Impression cannot rule out the possibility of such defects occurring.
If customised content is created by First Impression on the instructions of the Other Party, the Other Party acquires the intellectual property rights to the final files. The open files used to produce the final files form part of the intellectual property rights of First Impression, with the exception of static designs (open files in the form of PSD and Illustrator, among others, which are produced with the assets of the Other Party). After full payment of the invoices, the Other Party acquires a free perpetual user licence with respect to the above-mentioned open files for animations. The Other Party is not permitted to resell the open files or make changes thereto.

Article 22: Service desk

This article applies if the Other Party uses support through First Impression’s service desk.
First Impression will process properly substantiated requests for support within a reasonable time in accordance with its usual procedures. First Impression does not guarantee the completeness of responses or support offered. Support is provided on weekdays during First Impression’s usual business hours.
Notwithstanding the provisions of Article 12.1, invoices from First Impression must be submitted before the beginning of the period for which it has been determined that First Impression will provide support through the service desk to the Other Party.
If the parties have agreed on a fee on a cost-plus basis, First Impression shall issue an invoice to the Other Party at the end of each month, which must be paid within thirty days.