GENERAL TERMS AND CONDITIONS

ARTICLE 1 | DEFINITIONS

In these general terms and conditions, the following terms, always indicated with a capital letter, are used with the following meanings.

1.   MOTIK: the user of these general terms and conditions, located at Kokermolen 6 Room 1.05, 3994 DH Houten, registered under Chamber of Commerce number 80852882.

2.   Client: any natural or legal person with whom MOTIK has concluded or intends to conclude an Agreement.

3.   Consumer: a Client, a natural person not acting in the exercise of a profession or business.

4.   Parties: MOTIK and the Client jointly.

5.   Agreement: any agreement between Parties in the context of which MOTIK commits to producing and delivering one or more Productions to the Client.

6.   Subscription: an Agreement in the context of which Parties have committed to each other for a certain period for continuous, recurring, or sequential performances.

7.   Production: any video, animation, photo, text, or other work to be produced and delivered by MOTIK within the framework of the Agreement, in the sense of the Copyright Act.

8.   Written: communication in writing, via email, or any other manner of communication that can be equated with this, given the state of technology and prevailing opinions in social intercourse.

ARTICLE 2 | GENERAL PROVISIONS

1.   These general terms and conditions apply to every offer from MOTIK and every Agreement.

2.   These general terms and conditions also apply to Agreements for the execution of which third parties are involved by MOTIK.

3.   The applicability of any general terms and conditions of the Client is expressly rejected.

4.   Any deviation from these general terms and conditions can only be made expressly and in Writing, such as through the digital signature of the Client on the offer from MOTIK. If and insofar as what the Parties have expressly and in Writing agreed upon deviates from these general terms and conditions, the express and written agreement of the Parties will prevail.

5.   Nullification or annulment of one or more of the provisions in these general terms and conditions or the Agreement itself does not affect the validity of the remaining provisions. In such a case, the Parties are obligated to engage in mutual consultation to arrive at a replacement arrangement regarding the affected provision, taking into account as much as possible the purpose and intent of the original provision.

6.   If MOTIK does not always require strict compliance with these general terms and conditions, this does not mean that the provisions of these general terms and conditions are not applicable or that MOTIK would lose any right to demand strict compliance with the conditions of these general terms and conditions in other cases.

ARTICLE 3 | OFFERS AND CONCLUSION OF AGREEMENTS

1.   Every offer from MOTIK is non-binding, even if it indicates it is valid for a certain period. An offer from MOTIK can still be revoked immediately, or at least as soon as possible after acceptance by the Client, by MOTIK.

2.   The Client cannot derive any rights from an offer from MOTIK that contains an apparent error or mistake.

3.   Every Agreement is established, notwithstanding the provisions of paragraph 1, at the moment the Client has made the offer from MOTIK, digitally or signed, available to MOTIK. Offers from MOTIK can only be accepted unchanged by the Client, unless MOTIK indicates otherwise.

ARTICLE 4 | SUBSCRIPTIONS

1.   A Subscription is entered into for the expressly and in Writing agreed upon specific term and ends by operation of law upon expiration of this term.

2.   A Subscription can be terminated prematurely during the agreed fixed term with one month's notice, provided that the expressly and in Writing agreed discount will then lapse and the amount of the discount will be charged to the Client on the final invoice.

ARTICLE 5 | CANCELLATION OF THE AGREEMENT

Notwithstanding the provisions of article 4.2 and the mandatory legal rights of Consumers, if the Client cancels the Agreement after it has been established, MOTIK is entitled to compensation for the loss of profit resulting from the cancellation.

ARTICLE 6 | THIRD PARTIES

1.   MOTIK is entitled to involve third parties in the execution of the Agreement. Articles 7:404 and 7:407 paragraph 2 of the Civil Code do not apply to the Agreement.

2.   These general terms and conditions are also stipulated for the benefit of any third parties involved by MOTIK in the Agreement. They can also invoke the provisions of these general terms and conditions against the Client as if they were a party to the Agreement instead of MOTIK itself.

ARTICLE 7 | CLIENT'S OBLIGATIONS

1.   The Client is responsible for timely providing MOTIK with all information reasonably relevant for the setup and execution of the Agreement. The Client guarantees the accuracy and completeness of this information.

2.   Furthermore, the Client must always provide MOTIK with all cooperation required for the execution of the Agreement. The Client takes all reasonable, as well as expressly agreed upon measures to optimize the execution of the Agreement. Moreover, the Client is obliged to promptly inform MOTIK of all facts and circumstances that arise, whether or not after the conclusion of the Agreement, which can reasonably be understood to affect the timely and/or proper execution of the Agreement.

3.   If it has been agreed that employees or managers within the Client's organization, or other third parties to be engaged by the Client, will be involved in the execution of Agreements, the Client guarantees that these persons will be available to MOTIK in due time and that they will provide all cooperation necessary to realize a proper execution of the Agreement.

4.   If and insofar as the services of MOTIK are provided at the Client's location or another location designated by him and agreed upon between the Parties, the Client guarantees that MOTIK can execute the Agreement in a timely manner, and that the place of execution is suitable for this purpose. Furthermore, in such a case, MOTIK must be able to use all present and reasonably desired goods and facilities free of charge.

5.   If the Client fails to meet his obligations as referred to in the preceding paragraphs of this article, MOTIK is entitled to charge the additional costs and/or damages incurred thereby to the Client, notwithstanding the provisions of the remaining articles of these general terms and conditions.

ARTICLE 8 | TERMS

1.   All execution and delivery terms stated by MOTIK to which he has committed himself towards the Client are to be considered indicative, non-essential terms. MOTIK's delay does not occur until after the Client has given MOTIK a Written notice of default, in which a reasonable term is specified within which MOTIK can still fulfill the Agreement and fulfillment has still not occurred after the expiry of the aforementioned term.

2.   The Client has the right to dissolve that part of the Agreement to which the default relates in the event of default by MOTIK, but this never entitles the Client to additional compensation.

ARTICLE 9 | FEEDBACK, CORRECTIONS & COMPLAINTS

1.   Notwithstanding what is expressly agreed between the Parties, the agreed Production is manufactured according to MOTIK's own technical and creative insight.

2.   A Production is based on the specifications agreed upon in advance between the Parties, for example, based on exchanged ideas and/or a fixed script. The approval of a specific script by the Client leads to the final script.

3.   The Client's approval of a concept of a Production leads to the final Production. Upon delivery of a concept of a Production, the Client must examine within seven days whether he wishes corrections in the concept, and must notify MOTIK of this within this period; failing which, the Production is deemed to have been approved by the Client and is marked as final.

4.   Notwithstanding any expressly and in Writing agreed payment arrangements, MOTIK will invoice the Client after delivery of the final Production or after the Client has used two rounds of corrections. Concepts can be corrected on the Client's request by MOTIK insofar as this may reasonably be expected of MOTIK. The time spent on correction work also falls within the scope of the expressly and in Writing agreed day or half-day rate.

5.   Deviations between the final Production realized and what is expressly agreed can not be a reason for rejection, compensation, dissolution of the Agreement, or compensation, if they are of minor significance. Deviations that, taking into account all the circumstances, do not have or have subordinate influence on the usability of the Production are always considered to be deviations of minor significance. However, corrections will be made at the Client's request and insofar as this may reasonably be expected of MOTIK based on the agreed day or half-day rate.

6.   Complaints regarding the amount of invoice amounts must be submitted in Writing and substantiated to MOTIK within seven days after the invoice date, failing which the invoice amount is deemed to be fixed.

ARTICLE 10 | FORCE MAJEURE

1.   MOTIK is not obliged to fulfill any obligation from the Agreement if and as long as it is hindered from doing so by a circumstance that cannot be attributed to it under the law, a legal act, or prevailing opinions in social intercourse (force majeure). Force majeure is understood to mean any circumstance beyond MOTIK's control and/or unforeseeable circumstance as a result of which the (timely) fulfillment of the Agreement cannot reasonably be required.

2.   MOTIK reserves the right to invoke force majeure even if the circumstance causing the force majeure arises after the performance should have been delivered.

3.   Only if the force majeure situation makes the fulfillment of the Agreement permanently impossible or lasts longer than three months, are Parties entitled to dissolve the Agreement without judicial intervention and with immediate effect.

4.   If MOTIK is already partially fulfilling its obligations at the moment that the force majeure situation occurs, or can only partially fulfill its obligations, it is entitled to invoice the already executed or executable part of the Agreement separately, as if it were an independent Agreement.

5.   Damage resulting from force majeure is never eligible for compensation, notwithstanding the application of the previous paragraph.

ARTICLE 11 | SUSPENSION AND DISSOLUTION

1.   If the circumstances of the case reasonably justify it, MOTIK is entitled to suspend the execution of the Agreement without judicial intervention or dissolve the Agreement in whole or in part with immediate effect if and insofar as the Client does not, not timely, or not fully meet his obligations under the Agreement, or after the conclusion of the Agreement, circumstances come to MOTIK’s knowledge that provide good reason to fear that the Client will not fulfill his obligations. If the fulfillment of the obligations of the Client in respect of which he fails or threatens to fail is not permanently impossible, the power to dissolve only arises after the Client has been given Notice of Default in Writing by MOTIK, in which a reasonable term is stated within which the Client can (still) fulfill his obligations and fulfillment has still not occurred after the expiry of the aforementioned term.

2.   If the Client liquidates his company or transfers it to a third party, is bankrupt, has applied for (provisional) suspension of payment, or if any seizure is made of his assets, as well as in the case where the Client cannot otherwise freely dispose of his assets, MOTIK is entitled to dissolve the Agreement with immediate effect and without judicial intervention.

3.   Furthermore, MOTIK is entitled to dissolve the Agreement in whole or in part if circumstances arise that are of such a nature that fulfillment of the Agreement is impossible or unchanged maintenance thereof cannot reasonably be required of him.

4.   The Client can never claim any form of compensation in connection with MOTIK's exercise of the right of suspension and/or dissolution on the basis of this article.

5.   If the reason for the suspension or dissolution of the Agreement can be attributed to the Client, the Client is obliged to compensate MOTIK for the damages MOTIK suffers as a result.

6.   If MOTIK dissolves the Agreement based on this article, any outstanding claims against the Client become immediately due and payable.

ARTICLE 12 | PRICES, COSTS, AND PAYMENTS

1.   The offer from MOTIK states, in addition to the day or half-day rate, any additional costs such as travel and accommodation expenses, and equipment rental costs will be charged to the Client.

2.   A half-day covers a continuous period of up to four hours. The day rate represents a continuous period of up to eight hours. If the agreed services are only performed during part of a day or half-day, the full day or half-day rate will be charged.

3.   Any additional costs specified in the offer that are to be charged to the Client will be charged on a post-calculation basis.

4.   All amounts stated by MOTIK and owed by the Client are exclusive of VAT unless expressly and in Writing specified otherwise.

5.   Unless expressly and in Writing agreed otherwise, MOTIK is entitled to require full or partial advance payment from the Client. If the amount owed by the Client exceeds € 7,500 (excl. VAT), MOTIK uses a standard down payment arrangement where 50% of the total amount must be paid before MOTIK starts executing the Agreement.

6.   If the Client is bankrupt, liquidates his company, any seizure is made of his assets, has applied for (provisional) suspension of payment, or cannot otherwise freely dispose of his assets, the claims against the Client become immediately due and payable.

7.   Payments must be made by transfer, within the term specified on the relevant invoice. MOTIK maintains a standard payment term of 14 days from the invoice date but can deviate from this in individual cases.

8.   Payments must be made without any appeal to suspension or set-off.

9.   MOTIK is entitled to provide the Client with invoices only by email.

10. If timely payment is not made, the Client is automatically in default. From the day the Client's default commences, the Client owes interest of 2% per month on the outstanding amount, with a part of a month being considered a full month. Contrary to the previous sentence, the statutory interest applicable at the time of payment default applies if the Client is a Consumer.

11. All reasonable costs, such as legal, extrajudicial, and execution costs, incurred to obtain the amounts owed by the Client, are for the Client's account.

ARTICLE 13 | LIABILITY AND INDEMNITY

1.   MOTIK is not liable for damage caused by inaccuracies or incompleteness in the information provided by the Client, any other failure in the fulfillment of the Client's obligations arising from the law or the Agreement, as well as any other circumstance that cannot be attributed to MOTIK.

2.   If the Client provides MOTIK with videos, images, and/or other content protected under the Copyright Act or any other intellectual property right to execute the Agreement, the Client guarantees that no infringement is made of third-party intellectual property rights and indemnifies MOTIK in and out of court from all consequences resulting from the use, multiplication or reproduction thereof.

3.   MOTIK is never liable for indirect damage, including lost profits and damage resulting from business interruption.

4.   MOTIK's liability is limited to properly providing the agreed services again. If such repair is not possible, MOTIK's liability is limited to the invoice value of the Agreement, or at least that part of the Agreement to which MOTIK's liability relates.

5.   The limitation period for all legal claims against MOTIK is one year.

6.   The Client indemnifies MOTIK against any third-party claims related to damages incurred during the execution of the Agreement which are attributable to the Client. If MOTIK is approached by third parties, the Client is obliged to assist MOTIK both in and out of court and to do everything reasonably expected of him. If the Client fails to take adequate measures, MOTIK is, without notice of default, entitled to proceed with these measures. All costs and damages incurred by MOTIK and/or third parties as a result are entirely at the Client's expense and risk.

ARTICLE 14 | INTELLECTUAL PROPERTY/COPYRIGHT

1.   MOTIK reserves all intellectual property rights and powers that it is entitled to under the law, such as the Copyright Act. Ownership of Productions delivered by MOTIK, as well as provided ideas, concepts, scripts, etc., remains with MOTIK. These goods may only be used by the Client for the intended use agreed upon by the Parties when the Agreement was entered into and may not be reproduced, edited, or passed on to third parties without prior Written consent from MOTIK. The Client is not allowed to use parts of a delivered Production as part of another production.

2.   If the Client has fully fulfilled his obligations under the Agreement, he gains a license to use the final Production for the purposes provided for in the Agreement. If no arrangements have been made about these purposes, the licensing is limited to the use of the Production for which plans existed at the time of entering into the Agreement. These plans must have been made known to MOTIK demonstrably before the conclusion of the Agreement. Making available or transferring rights to other goods than the final Production, including “the raw material,” is not possible unless expressly and in Writing agreed otherwise.

3.   The Parties can subsequently agree in Writing that the Client will buy out intellectual property rights to the delivered Production. Through a license fee or royalty fee, an agreed-upon form of use can be established to make it possible for the Client to use it outside the purposes mentioned in the previous paragraph.

4.   In the event of an infringement of the provisions in this article, MOTIK makes a claim for immediate undoing of the infringement and compensation for the damage resulting from the infringement for MOTIK, including all actual legal and extrajudicial costs.

5.   Unless it can not reasonably be demanded from the Client, MOTIK is always entitled to have its name mentioned or removed from the Production. Without prior consent, the Client is not allowed to use the Production without mentioning this name.

6.   MOTIK has the right, unless expressly and in Writing agreed otherwise, to publish a Production or parts thereof for its own promotion, for example on its website or social media, without requiring prior permission from the Client, and without any remuneration needing to be paid in this regard.

ARTICLE 15 | THIRD PARTY RIGHTS

Except insofar as they are involved by MOTIK in the execution of the Agreement, the Client is responsible for obtaining consent from anyone portrayed in a Production for the use of their portrait rights. The Client indemnifies MOTIK against all third-party claims in this regard.

ARTICLE 16 | FINAL PROVISIONS

1.   MOTIK is entitled to amend these general terms and conditions. In such a case, the Client will be notified, and the amended general terms and conditions will be provided to him and will then apply. In the case of a Consumer, amended general terms and conditions do not apply to an existing Agreement, unless the changes are to the Consumer’s detriment.

2.   MOTIK is entitled to transfer its rights and obligations under the Agreement to a third party.

3.   Every Agreement and all legal relationships arising between the Parties therefrom are exclusively governed by Dutch law.

4.   Parties will not first resort to the courts until they have made an optimal effort to settle the dispute by mutual consultation.

5.   Exclusively the competent court within the district of the court Midden-Nederland is appointed in the first instance to take cognizance of any legal disputes between the Parties, without prejudice to MOTIK's right to appoint another competent court according to the law. A Consumer, however, is entitled to choose the competent court according to the law within one month after MOTIK has announced in Writing to want to proceed with the court it has appointed.