Terms and Conditions

DEPOSITED AT THE CHAMBER OF COMMERCE FOR BRABANT UNDER NUMBER 55498647

Article 1. GENERAL

1.1. These conditions apply to all offers, concepts, productions, and (pre-contractual) agreements of purchase/sale of goods and/or assignments and services of Foxmountain. These general terms and conditions can be found at foxmountain.nl, are sent with every quotation, and will be sent free of charge upon request;
1.2. Additions or deviations from these conditions must be agreed upon in writing and apply only to that contract for which they were made;
1.3. The rights and obligations from agreements between Foxmountain and the counterparty cannot be transferred to third parties by the counterparty, unless with written consent of Foxmountain;
1.4. Contradictory general terms and conditions, including those of the counterparty, are not accepted by Foxmountain, unless otherwise agreed upon in writing and confirmed by Foxmountain;
1.5. The conduct and professional rules of Foxmountain are part of these general terms and conditions. The counterparty declares to always respect the obligations arising from them;
1.6. In the case of the assignment, the counterparty can never invoke the circumstance that they acted on behalf of a third party, unless the counterparty has expressly brought this to the knowledge of Foxmountain and Foxmountain has then accepted the assignment in writing under this condition;

Article 2. OFFERS / QUOTATIONS

2.1. All offers are without obligation and have a validity period of 30 days, unless otherwise agreed in writing. An offer containing a term may nevertheless be revoked by Foxmountain, even after receipt of the order, provided this is done within 5 working days after receiving the order;
2.2. Prices, quantities, dimensions, etc., mentioned in price lists, on the internet, in quotations, and other documents are only informative. Although the main features of products are represented as accurately as possible, they are of an approximate nature and do not bind Foxmountain;
2.3. Foxmountain prepares its quotations based on an estimate of the required working hours for project preparation, direction, recording, editing, material use, and other project-related matters. Foxmountain determines these hours reasonably, however, they are approximate unless otherwise agreed;
2.4. The following methods are used to calculate the compensation:
a. Based on a fixed amount (fee): Performing a service against a predetermined total amount, depending on the assignment and the associated advice;
b. Based on an hourly rate: A pre-agreed compensation for performing services during the time of one hour by one person. The counterparty will be charged for the total number of hours that have been worked for them, including the time for travel, office costs, depreciation, and other costs;
2.5. The quotation must be signed by the counterparty and returned to Foxmountain. If the quotation is not signed, Foxmountain assumes that the quotation expresses what the parties have agreed upon. Especially the absence of a signature does not affect the binding force of the offer and its acceptance;
2.6. If a sample, model, or image has been shown or provided to the counterparty, it is presumed to have been shown only as an indication without the need for the item to correspond to it unless it is expressly agreed that the item will conform to it;
2.7. If the quotation is accompanied by drawings, technical descriptions, designs, and calculations that have been prepared by Foxmountain itself or on its behalf, these remain the property of Foxmountain. Such documents may not be handed over to third parties or shown with the aim of obtaining a comparable quotation. They may also not be copied or otherwise reproduced. If no order is given to Foxmountain following the quotation, these documents must be returned to her at her request within 14 days;
2.8. If an order is not forthcoming, Foxmountain has the right to charge the client for all costs it has had to incur to give shape to its quotation. This can include, among other things, design and calculation costs, drawing costs, programming costs, and administrative costs;

Article 3. AGREEMENTS

3.1. An agreement is considered legally established once Foxmountain initiates the service as requested verbally, in writing, and/or electronically, or once the order has been confirmed in writing or has commenced execution, including but not limited to the purchase of materials for the respective order or the initiation of its production. An order is also considered given by sending or delivering data or goods necessary for carrying out the activities as referred to in article 1.1. The content of the agreement is then determined by the order confirmation and these general terms and conditions; 3.2. If – after the order is placed – additional wishes arise during production that were not included in the quotation, these extra hours will be charged based on a fixed hourly rate - in addition to the invoice amount agreed in the quotation - unless otherwise agreed. An order for additional work must be confirmed in writing by the counterparty. Changes in the original order - of any kind - must be confirmed in writing by Foxmountain. The originally agreed delivery term or production lead time is voided by such changes; 3.3. The content of the production is approximately communicated during acceptance but remains dependent on the specifics of the case. Foxmountain expressly reserves all rights to make interim changes in the direction of the production. Foxmountain determines the manner in which a production is designed and executed; 3.4. In the case of a joint production, additional terms may apply concerning, among others, the supply, filming times, and editing. These additional terms are indicated in the quotation;

Article 4. PRICES

4.1. All price quotations and prices charged by Foxmountain are the prices valid at the time of the offer or the establishment of the agreement, excluding travel and accommodation costs and excluding VAT, unless agreed otherwise in writing; 4.2. The invoice amount will be increased with a credit restriction surcharge. The percentage of this surcharge is mentioned in our quotations, price lists, etc. This surcharge does not need to be paid if the payment is made within 30 days of the invoice date. 4.3. If, after the conclusion of the agreement, there is a change in the prices of materials, taxes, and/or other factors that determine the price of the goods and/or services, Foxmountain is entitled to implement these price changes. Price changes of more than 10% give the counterparty the right to terminate the agreement, provided this is done in writing and within seven days after receiving the relevant notification. Such termination does not entitle the counterparty to any compensation for damages; 4.4. The counterparty is responsible for paying author’s fees for the music used in a production. These copyright fees are additional costs not included in the quotation. The amount of the fees is determined by the copyright organization. 4.5. Costs for a “voice over”, sound design, cameraman, and illustrator are borne by the counterparty and are added to the final invoice;

Article 5. PAYMENT

5.1. Payment must be made within 14 days of the invoice date. If other payment conditions have been agreed upon, they will be specified on the invoice. 5.2. The counterparty is in default after the expiration of the payment term mentioned in subsection 1 of this article, without a need for a formal notice of default, regardless of whether the exceeding of this term can be attributed to the counterparty or not. 5.3. Without prejudice to his further rights, Foxmountain is then entitled to charge interest on the outstanding amount at 1.5% per month, or part of a month, calculated from the respective due date. 5.4. All extrajudicial and judicial costs incurred by Foxmountain in the context of a dispute with the counterparty, whether as plaintiff or defendant, shall be borne by the counterparty. 5.5. Incoming payments will be allocated to settle the oldest outstanding invoices, including interest and costs, even if the counterparty specifies otherwise; 5.6. In the case of a joint assignment, each counterparty is individually and severally liable for the payment of the entire invoice amount.

Article 6. CANCELLATION

6.1. In case of cancellation by the counterparty before the start of the production, all costs incurred by Foxmountain with respect to the order, as well as lost profits, are immediately due, with a minimum of 10% of the principal amount, if necessary to be increased with any damage suffered by Foxmountain as a result of the cancellation; 6.2. If the work or items have already been produced and are of a personal nature or by their nature cannot be cancelled, such as audio and video recordings, software program related productions, 100% of the agreed principal sum will be charged;

Article 7. DELIVERY TIME, DELIVERY, RISK

7.1. The delivery time mentioned or agreed in the order confirmation is not a strict deadline and is only approximate, even if it has been expressly accepted by the counterparty. In case of non-timely delivery, Foxmountain is only in default after a written notice of default; 7.2. The mentioned or agreed delivery time is automatically extended by the period(s) during which:

  • there is a delay in manufacturing and/or shipping and/or assembly and/or any other circumstance temporarily preventing execution, regardless of whether it can be attributed to Foxmountain;
  • the counterparty fails in one or more obligations towards Foxmountain, or there is a justified fear that it will fail, regardless of whether the reasons for this are justified or not;
  • the counterparty fails to enable Foxmountain to execute the agreement. This situation occurs, among other things, if the counterparty fails to communicate the delivery location or to provide the data, items, or facilities necessary for execution;

Article 8. EXECUTION OF THE AGREEMENT

8.1. Foxmountain will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship and based on the current state of the science; 8.2. Foxmountain is entitled to outsource the order or parts thereof to third parties who are not employed by Foxmountain, without the consent of the counterparty; 8.3. The counterparty ensures that all data, which Foxmountain indicates as necessary or which the counterparty should reasonably understand to be necessary for the execution of the agreement, are provided to Foxmountain in a timely manner. If the data required for the execution of the agreement have not been provided to Foxmountain in time, Foxmountain has the right to suspend the execution of the agreement and/or charge the extra costs resulting from the delay to the counterparty at the usual rates; 8.4. If it has been agreed that the agreement will be executed in phases, Foxmountain can suspend the execution of those parts that belong to a subsequent phase until the counterparty has approved the results of the preceding phase in writing; 8.5. Before proceeding to production, reproduction, or disclosure, parties shall provide each other with the opportunity to check and approve the final models, prototypes, or proofs of the design. If Foxmountain, whether in the name of the counterparty or not, gives orders or instructions to production companies or other third parties, the counterparty shall, at the request of Foxmountain, confirm his aforementioned approval in writing;

Article 9. COMPLAINTS

9.1. Complaints are not possible if:

  • the delivered goods/assembly/production show one or more imperfections or deviations that fall within a reasonable tolerance;
  • the delivered goods/assembly/production have been used for a purpose other than for which they are normally intended, or, in the opinion of Foxmountain, have been used, stored, or transported in an imprudent manner;
  • the damage is caused by negligence of the counterparty or because the counterparty has acted contrary to instructions, directions, and advice of Foxmountain;
  • the counterparty has not fulfilled his obligations towards Foxmountain (both financially and otherwise);
  • repairs or other work on the goods/assembly/production have been carried out by third parties without Foxmountain’s written consent; 9.2. If the counterparty submits a complaint in writing within ten days of receipt, in accordance with the relevant agreement and these general terms and conditions, and if Foxmountain considers the complaint valid, Foxmountain will, at its discretion, replace the defective goods (or parts thereof) free of charge (after which the replaced goods become its property), repair them, or perform the services again or provide a price reduction; 9.3. The handling of a complaint does not suspend the counterparty’s payment obligation; 9.4. If attention is given to a complaint outside the above-described cases, this is done entirely without obligation, and the counterparty cannot derive any rights from it;

Article 10. NON-PERFORMANCE/ TERMINATION/SUSPENSION

10.1. Foxmountain is authorized to terminate the agreement with immediate effect, without judicial intervention, in whole or in part, or to suspend its execution, without prejudice to its rights (to performance and/or compensation), if:

  • the counterparty acts in violation of any provision of the agreement between the parties;
  • the counterparty dies, applies for a moratorium on payments or files for bankruptcy or if bankruptcy is applied for the counterparty, or if the counterparty’s business is shut down or liquidated;
  • an out-of-court settlement is offered or if any of the counterparty’s assets are seized; 10.2. The provisions of subsection 1 of this article apply correspondingly if the counterparty, after being invited to do so in writing, fails to provide appropriate security within seven days to the satisfaction of Foxmountain;

Article 11. (INTELLECTUAL) PROPERTY AND RETENTION OF TITLE

11.1. Delivery takes place under retention of title. This retention applies to claims for payment of all goods or productions delivered or to be delivered by Foxmountain to the counterparty under any agreement and/or work performed in the context of delivery, as well as for claims due to the counterparty’s failure to fulfill these agreements;
11.2. Foxmountain reserves all rights (of intellectual property) with respect to the goods delivered by it in the broadest sense of the word, in particular the copyrights on all works as intended in article 10 of the Copyright Act. The counterparty undertakes not to infringe or affect these rights in any way, directly or indirectly, by use or otherwise, and acknowledges that Foxmountain is the rightful claimant;
11.3. The ownership of ideas, concepts, or (trial) designs provided by Foxmountain remains fully with Foxmountain, unless explicitly agreed otherwise in writing. In the latter case, Foxmountain may demand a fee for this. In case of proven infringement of the said property, Foxmountain is entitled to charge a self-determined but reasonable (damage) compensation;
11.4. Foxmountain retains the right to use the knowledge gained from the execution of the work for other purposes, as long as no confidential information is disclosed to third parties;
11.5. A Foxmountain production may not be duplicated, reproduced, edited, or processed in other products than for which it was originally made, unless explicit permission has been granted by Foxmountain;
11.6. The counterparty is not entitled without the written permission of Foxmountain to use the production more broadly or in a different manner than agreed upon. In the case of non-agreed broader or different use, including alteration, mutilation, or impairment of the preliminary or definitive design, Foxmountain has the right to a compensation for infringement of her rights of at least three times the agreed fee, or a compensation that is proportionate to the committed infringement in fairness and equity, notwithstanding the right of Foxmountain to a compensation for the actual damage;
11.7. In the cases mentioned in article 11 paragraph 1, Foxmountain is authorized to take back the delivered goods that have remained its property according to the previous paragraph of this article. Such a retraction serves as a dissolution of the agreements concluded with the counterparty. The counterparty irrevocably authorizes Foxmountain to remove the relevant goods from where they are located;
11.8. The counterparty is authorized, if and insofar as necessary in the context of his normal business operations, to dispose of the goods subject to the retention of title. If the counterparty uses this authority, he is obliged to deliver the goods subject to the retention of title to third parties only under reservation of the property rights of Foxmountain. He is also obliged to grant Foxmountain a silent pledge on the claims he has or will obtain on these third parties at first request. In the event the counterparty refuses, this provision serves as an irrevocable power of attorney for Foxmountain to establish this pledge right;

Article 12. USE AND LICENSE

12.1. When the counterparty fully complies with its obligations under the agreement with Foxmountain, it acquires an exclusive license for the use of the production insofar as it concerns the right of publication and duplication in accordance with the destination agreed upon in the assignment. If no agreements have been made about the destination, the license granting remains limited to that use of the production, for which there were definite intentions at the time of providing the assignment. These intentions must have been demonstrably made known to Foxmountain before concluding the agreement;
12.2. The counterparty is no longer permitted to use the results made available and any license granted in the context of the assignment lapses:
a. from the moment the counterparty does not fully meet its (payment) obligations under the agreement or is otherwise in default, unless the shortcoming of the counterparty is of minor significance in light of the entire assignment;
b. if the assignment is terminated prematurely, for whatever reason, unless the consequences thereof are contrary to reasonableness and fairness;
12.3. Foxmountain, with due regard for the interests of the counterparty, has the freedom to use the design for its own publicity or promotion unless otherwise agreed in writing;

Article 13. LIABILITY

13.1. Foxmountain is not liable for damage resulting from any failure in the performance of its obligation(s) to the counterparty unless there is intent or gross negligence on the part of Foxmountain or its executive subordinates;
13.2. Foxmountain is also not liable for intent or (gross) negligence of (non-executive) subordinates or others engaged by it in the execution of the agreement;
13.3. Foxmountain accepts no liability for, advice provided by or on behalf of her;
13.4. The liability of Foxmountain for a professional error causing the counterparty (direct) damage is limited to a maximum equal to the invoice amount, or that part of the assignment to which the liability relates, or up to a maximum of EURO 2,500.00 (In words: two thousand five hundred euros). The liability is always limited to the maximum amount of the payment provided by Foxmountain’s insurer in the applicable case. Compliance with this provision counts as the only and complete compensation for damages;
13.5. The counterparty must always give Foxmountain the opportunity to settle a complaint otherwise the liability claim and therefore the compensation lapse;
13.6. Under direct damage is understood exclusively:

  • the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage in the sense of these terms and conditions;
  • the possible reasonable costs made to make the defective performance of Foxmountain conform to the agreement, unless these cannot be attributed to Foxmountain;
  • the reasonable costs incurred to prevent or limit damage, insofar as the counterparty demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions;
    13.7. Foxmountain is never liable for indirect damage, including consequential damage, lost profits, missed savings, and damage due to business stagnation;

Article 14. FORCE MAJEURE

14.1. For the purpose of these general terms and conditions, force majeure is understood as any circumstance beyond the control and actions of Foxmountain, whether or not foreseeable at the time of entering into the agreement, as a result of which compliance cannot reasonably be expected from Foxmountain, such as war, government measures, lack of raw materials, factory or transport disruptions of any kind, work strikes, lockouts or lack of staff, quarantine, epidemics, frost delays, failures of third parties engaged by Foxmountain for the execution of the agreement (such as late delivery by suppliers), etc. 14.2. Force majeure gives Foxmountain the right either to terminate the agreement wholly or partially, or to suspend the execution of its obligations, without being obliged to pay any compensation. The counterparty remains obliged to pay for the part of the agreement that has already been executed;

Article 15. SUSPENSION OF SERVICE

15.1. Foxmountain has the right to (temporarily) suspend the operation of a production and/or limit its use if the counterparty fails to fulfill an obligation towards Foxmountain regarding the agreement, or acts in violation of these general terms and conditions. Foxmountain shall inform the counterparty in advance, unless this cannot reasonably be expected from Foxmountain; 15.2. The obligation to pay the amounts due continues to exist during the suspension; 15.3. Service will be resumed once the counterparty has fulfilled its obligations within a term set by Foxmountain;

Article 16. PROCESSING OF PERSONAL DATA AND PRIVACY POLICY

  1. Foxmountain receives and processes personal data in accordance with the instructions of and under the responsibility of the counterparty;
  2. Technical and organizational measures have been taken to protect personal data against loss or any other form of unlawful processing, taking into account the state of technology and the nature of the processing;
  3. Foxmountain only stores personal data as long as necessary for the purposes for which they were collected or used and/or as long as legally required. If the counterparty’s account is not used for 18 months, it will be marked as ‘inactive’. In such a case, active use of account information, for example to inform about products and services, will no longer occur;
  4. Foxmountain cooperates with the counterparty or third parties when they submit a request to exercise their rights such as, but not limited to, the right to access, correction, deletion, except for the information that Foxmountain is legally obliged to retain. For example, Foxmountain is legally obliged to keep copies of invoices for seven years;
  5. The collection of (personal) data of the counterparty, including user material and information, used by Foxmountain, is a legally protected database. Foxmountain is the producer of the database and therefore has the exclusive right to grant permission for;
    • querying or reusing the whole or a substantial part in qualitative and/or quantitative terms of the content of the database;
    • repeatedly and systematically querying or reusing non-substantial parts in qualitative and/or quantitative terms of the content of the database, insofar as this is contrary to the normal exploitation of the database or unjustifiably harms the legitimate interests of Foxmountain. Foxmountain may only query or reuse data from the database if and to the extent permitted under these general terms and conditions;
  6. A data breach (a lost USB stick with personal data, a stolen laptop, or a break-in into a database, etc.) that leads to a significant chance of serious adverse consequences or has serious adverse consequences for the protection of personal data is reported to the data breach reporting desk of the Dutch Data Protection Authority;
  7. Foxmountain is only a “processor” and the counterparty is “responsible” in the sense of the law. In these general terms and conditions, mutual rights and obligations are laid down, making the signing of a separate processing agreement unnecessary;

Article 17. PARTIAL INVALIDITY

If one or more provisions of this agreement with the counterparty are not or not fully legally valid, the remaining provisions remain fully in force. In place of the invalid provisions, an appropriate arrangement shall apply that approximates as closely as possible the intention of the parties and the economic result they sought in a legally effective manner;

Article 18. PLACE OF PERFORMANCE, APPLICABLE LAW, COMPETENT COURT

17.1. The place of establishment of Foxmountain is the place where the counterparty must fulfill its obligations towards Foxmountain, unless mandatory provisions oppose this;
17.2. Only Dutch law applies to all offers and agreements of Foxmountain;
17.3. All disputes arising from the agreement concluded between the counterparty and Foxmountain, or from further agreements that may result from it, shall be settled by the competent court;
17.4. These conditions have been deposited with the Chamber of Commerce for Brabant;

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