ARTICLE 1: DEFINITIONS
For purposes of these general conditions, the following terms will have the following meanings, unless expressly indicated otherwise:
Storm Agency: the booking agency for artists and the user of these general conditions;
Client: the private individual or legal entity booking one or more artists and/or Performances with Storm Agency;
Artist: the performing artist(s), specifically the disc jockey(s) or DJ(s), who has/have undertaken vis-à-vis Storm Agency to organize and/or give one or more Performances;
Performance: the Artist’s artistic performance;
Agreement: the agreement, including Hospitality Rider and Technical Rider, to be entered into between Storm Agency and the Client as a result of a booking of an Artist and/or Performance made by the Client with Storm Agency;
Performance Fee: the total agreed amount due by the Client to Storm Agency in consideration of a booking of an Artist and/or Performance, exclusive of VAT and payment of performing rights in a musical work etc. due, but including payroll tax and social and employees’ insurance contributions, if due;
Parties: Storm Agency and the Client jointly.
ARTICLE 2: APPLICABILITY OF THE CONDITIONS
1. These conditions will apply to all offers and to all agreements of Storm Agency B.V., having its registered office in Rotterdam, hereinafter to be referred to as “Storm Agency”.
2. The applicability of any general (purchasing) conditions to be used by the Client is expressly waived. Any conditions to the contrary will form part of the Agreement entered into between the Parties only if and to the extent expressly agreed in writing between the Parties. Any additions or amendments to these general conditions or other amendments or additions to the Agreement will not become binding until after written confirmation by Storm Agency.
3. The Client’s acceptance and retention without comments of any quotation or assignment confirmation that refers to the application of these general conditions will be deemed to constitute agreement to the application hereof.
4. The possible inapplicability of all or part of any provision of these general conditions will not affect the applicability of the other provisions hereof.
ARTICLE 3: AGREEMENTS
1. Agreements will not become binding until after written confirmation by Storm Agency.
2. Agreements may be entered between Storm Agency and the Client only. Without the express prior written consent of Storm Agency the Client will refrain from directly approaching, and/or entering into an agreement with, an Artist.
ARTICLE 4: QUOTATIONS
1. All offers, quotations, prices and price lists, delivery times, etc. of Storm Agency will be subject to contract, unless containing a term for acceptance. If a quotation or offer contains an offer subject to contract and such offer is accepted by the Client, Storm Agency will have the right to revoke the offer within two workdays of receipt of the notice of acceptance.
2. The Client cannot derive any rights from any images or descriptions provided by Storm Agency in any offers, folders, catalogues or other promotional materials. The foregoing information will not be binding on Storm Agency.
ARTICLE 5: ENGAGING THIRD PARTIES
Storm Agency will be authorized to engage third parties in the performance of the agreements made.
ARTICLE 6: CONTRACT EXTRAS
1. Storm Agency will have the right to invoice the Client by way of contract extras for any additional costs as a result of an obstacle, of any nature whatsoever, in the progress of performance of the Agreement and/or on account of any work or services not recorded in the Agreement.
2. Contract extras will be invoiced separately after the end of performance of the Agreement at rates communicated in advance.
ARTICLE 7: ARTIST AND PERFORMANCE
1. The Client declares to be fully aware of the Artist’s performances, as well as of the type or nature of the contracted Performance.
2. The Client warrants that prior to, during and after the Performance at least the refreshments and items indicated in writing by the Artist, all in accordance with the Hospitality Rider, will be available in the dressing room. The Client will receive the relevant written statement not later than one (1) week prior to the Performance.
3. The Client warrants that the light and sound units and equipment relating to the Performance indicated in writing by the Artist, as well as any sound checks, all in accordance with the Technical Rider, will be available in good time before commencement of the Performance, meeting the specifications stated by the Artist. The Client will receive the relevant written statement not later than two (2) weeks prior to the Performance, also indicating the time at which the foregoing is to be available.
4. The Client will procure all the required permits, exemptions, etc. in connection with the Performance. If any of the permits, etc. required are missing, Storm Agency and/or the Artist will have the right to cancel the Performance. In such event, the Client’s obligation to pay the agreed Performance Fee will always be maintained, and the Client will indemnify Storm Agency and/or the Artist against any third-party claims such cancellation. Without prejudice to the foregoing, Storm Agency will reserve the right, either also on behalf of the Artist and/or third parties or otherwise, to claim full damages from the Client.
5. The Client warrants:
that, if others are to perform work in the room where the Performance is to take place as well, such work will be terminated before the Artist will be using the room, in order to allow the Artist to prepare without any obstacles;
that Storm Agency, any third parties engaged by it, and the Artist will have free access to the room where the Performance is to take place and that the preparations can be made without interruption;
that there is a proper (dressing) room available for the Artist, that such room can be properly heated, and that there is lighting, a mirror, and power supply available in the room, as well as that the room can be properly locked;
that there is a properly covered or coverable stage available, unless agreed otherwise in writing;
that sanitary facilities are available at a reasonable distance;
that the items requested, ensuing from the written statements, the Hospitality Rider and the Technical Rider, as referred to in paragraphs 2 an 3 of this article are available;
that the working environment meets the statutory requirements set for it, and that the Artist’s safety prior to, during and after the Performance is guaranteed, inter alia by having sufficient (security) staff, crowd control barriers, stage hands, etc. available;
that the maximum number of persons allowed, pursuant to fire and/or other regulations, either issued by the government or otherwise, in the room where the Performance is to take place will not be exceeded;
that, without the prior written consent of Storm Agency, no audio and/or video recordings will be made of the Performance, and that the Client will take all such measures as may be necessary to prevent third parties from making unauthorized audio and/or video recordings of the Performance.
6. Storm Agency will arrange that the Artist will check in at the agreed location in good time before commencement of the Performance, bringing all that is necessary for the Performance, to the extent not to be supplied or arranged by the Client.
7. The location where the Performance is to take place will be recorded in the Agreement and will be binding. The Client will provide directions to the location.
8. The time of commencement of the Performance as well as the duration of the Performance will be recorded in the Agreement and will be binding. The time of commencement will be an indication and will not be deemed to constitute a firm deadline vis-à-vis the Artist or Storm Agency. At the Client’s request, and with the consent of the Artist and/or the Artist’s (tour) manager, the duration of the Performance may be extended. The duration of the extension will be invoiced to the Client by way of contract extras.
9. Storm Agency will have the right to provide the Client with a guest list for each Artist for at least five (5) persons.
ARTICLE 8: PROMOTIONAL MATERIALS
1. The Client will require the prior written consent of Storm Agency in respect of references to, and/or the portrait of, the Artist on the promotional materials, in the broadest sense. To that end, the Client will submit a number of print proofs of the promotional materials subsequently to be specified to for written approval by Storm Agency in advance.
2. Any promotional materials containing a reference to, and/or the portrait of, the Artist may be distrbuted only with the prior written consent of Storm Agency and, if necessary, the Artist.
3. The Client will arrange sufficient promotion and publicity surrounding the Performance and warrant proper credits to the Artist in all of the Client’s advertisements relating to the Performance.
4. Without the prior written consent of Storm Agency and, if necessary, the Artist, the Client may not, prior to, during or after the Performance, sell any audio carriers, placards, posters and/or other items containing the name, portrait, logo, etc. of the Artist on or around the location where the Performance is to take place. The Client will take all such measures as may be necessary to prevent any third parties from offering and/or selling any such items.
ARTICLE 9: WARRANTY AND INDEMNIFICATION
1. Storm Agency warrants that it is not precluded by any obligation whatsoever from performing its obligations under the Agreement.
2. Storm Agency declares that the Artist is an independent contractor for tax purposes or that Storm Agency will act as the (notional) employer and will arrange punctual payment of all statutory payments, levies, withholdings, etc. in respect of the fee or the wages to be received by the Artist. Storm Agency will indemnify the Client in that respect. The indemnification will not apply to any wages or cash or other fees provided by the Client directly to the Artist.
ARTICLE 10: CANCELLATION
1. Cancellation of the Performance by the Client will require the written consent of Storm Agency. If Storm Agency grants its consent, a compensation may be due by the Client to Storm Agency, to be determined as follows:
in the event of cancellation until two (2) months prior to the agreed date of the Performance, no compensation will be due by the Client;
in the event of cancellation in the period from two (2) months to one (1) month prior to the agreed date of the Performance, a compensation equal to 50% of the Performance Fee;
in the event of cancellation in the period from one (1) month prior to the agreed date of the Performance until the date of the Performance, a compensation equal to a percentage to be determined by Storm Agency between 50% and 100% of the Performance Fee, all depending on whether Storm Agency has been able to contract (partial) replacement work for the relevant Artist on the agreed date, failing which 100% of the Performance Fee will be due. The foregoing does, however, not in any way whatsoever entail, and cannot be construed as, an obligation for Storm Agency to contract (partial) replacement work;
in the event of cancellation without the required written consent of Storm Agency, the Client will pay the full Performance Fee.
2. Without prejudice to the foregoing, Storm Agency will have the right, either also on behalf of the Artist and/or third parties or otherwise, to claim full damages from the Client.
3. Storm Agency will have the right to cancel a Performance, for reasons of its own, until two (2) weeks prior to the agreed date of the Performance, subject to refunding of any amounts already paid by the Client to Storm Agency (all or part of the Performance Fee), or subject to crediting the agreed Performance Fee. Other than repayment or crediting as referred to above, neither Storm Agency nor the Artist will have any liability vis-à-vis the Client and/or any third parties to pay damages.
4. If, as a result of a radio and/or television performance, a performance abroad and/or (promotional) commitments for his/her record company, the Artist is precluded from giving the Performance the day before and/or the day after, Storm Agency will have the right to cancel the agreement. In such event, no compensation will be due by the Client to Storm Agency and the Client will not be entitled to any compensation of damages or otherwise.
5. In the events referred to in paragraph 4 of this article, Storm Agency may submit one or more proposals for a replacement artist or the Performance will be rescheduled in consultation with the Client. The Client will be required to notify Storm Agency within 48 hours of cancellation and submission of the proposals by Storm Agency whether or not it wishes to entertain any of the proposals submitted.
ARTICLE 11: COPYRIGHTS AND PERFORMING RIGHTS IN A MUSICAL WORK
Any considerations for copyrights and related rights for the purpose of publication and/or of musical works and audio recordings due to organizations including but not limited to Buma/Stemra and Sena, and foreign sister organizations such as Sabam and Simim, will be payable by the Client to the relevant organization.
ARTICLE 12: INABILITY TO PERFORM THE AGREEMENT AND FORCE MAJEURE
1. If during preparation and/or performance of the agreed work such work proves incapable of being performed, either as a result of circumstances unknown to Storm Agency or as a result of any force majeure whatsoever, Storm Agency will have the right to demand that the assignment given to it be amended so as to render performance possible, save in the event that such performance will never be possible as a result of the unknown circumstances or force majeure. In such event Storm Agency will be entitled to full payment for the work already performed by it.
2. In the event that performance of Storm Agency’s obligations under the Agreement entered into with the Client is impossible as a result of non-attributable failure on the part of Storm Agency, or on the part of the Artist or other third parties engaged by Storm Agency in the performance of the Agreement, or in the event of any other serious ground arising on the part of Storm Agency, Storm Agency will be entitled to dissolve the Agreement entered into between the Parties, or to suspend performance of its obligations vis-à-vis the Client for a reasonable period to be determined by it, without any liability arising on its part to pay damages. If the foregoing situation occurs when the Agreement has been partly performed, the Client will be required to perform its obligations vis-à-vis Storm Agency until such time.
3. Circumstances of non-attributable failure will include, without limitation:
– war, riot, mobilization, civil domestic and foreign commotion, government measures, strike and lock-out by workers or impending circumstances identical or similar to the foregoing;
– sickness on the part of the Artist; on request, made within 24 hours after reporting sick to the Client, and at the Client’s expense, an independent physician may prepare a doctor’s certificate;
– disruption of the exchange rates in existence at the time of entering into the Agreement;
– business interruption as a result of fire, accident or other incident;
– natural phenomena;
– government measures precluding the Artist from giving his Performance, or rendering the Performance disproportionally onerous;
all irrespective of whether the failure, or failure punctually, to perform occurs at Storm Agency, the Artist or any other third parties engaged by it in the performance of the Agreement.
4. In the event that the Client should be in default vis-à-vis Storm Agency in the performance of its obligations in any way whatsoever, in the event of discontinuation of payment, an application for a (provisional) moratorium on payment of its debts, bankruptcy, attachment in execution, assignment of the estate, or winding-up of the Client’s business, all amounts due by the Client to Storm Agency under any contract will become immediately due and payable.
ARTICLE 13: PRICES
1. All prices quoted by Storm Agency are exclusive of VAT and any other government levies, unless expressly stated otherwise.
If between the date of entering into the Agreement and performance of the Agreement any changes are made by the government and/or trade unions to wages, terms of employment, social insurance policies etc., Storm Agency will be entitled to pass on the increases to the Client. If between the said dates Storm Agency issues new prices and such new prices take effect, Storm Agency will be entitled to charge the prices thus stated to the Client.
In the event that the Client is a private individual not acting in the pursuit of a profession or business, any price increases may be passed on or invoiced three months after formation of the Agreement as referred to above. In the event of price increases as referred to in the foregoing provisions of this article within a period of less than three months, the Client will be authorized to dissolve the Agreement.
ARTICLE 14: PAYMENT
1. Payment is to be made not later than two (2) weeks prior to the agreed date of the Performance or, if the Agreement states a specific payment date, on or before such date, unless agreed otherwise in writing.
2. Any contract extras are to be paid within the payment period as stated in the relevant (contract extras) invoice.
3. If any (advance) payment has not been made punctually and/or fully in accordance with the provisions of paragraph 1 or has not been received in good time by Storm Agency or if the agreed amount has not been received by Storm Agency after expiry of the payment period as referred to in paragraph 2, as the case may be, Storm Agency will be authorized – without any further notice of default or judicial intervention being required – to dissolve all or part of the Agreement out of court, without prejudice to its entitlement to payment of the Performance Fee, the Client paying interest to Storm Agency equal to the statutory commercial interest within the meaning of Article 6:119a of the Dutch Civil Code, as well as the legal costs, including the extrajudicial costs up to 15% of the Performance Fee and the associated interest, as well as the judicial costs, including legal fees, and Storm Agency furthermore reserving the right to file a claim for compensation of the damage suffered and to be suffered by Storm Agency and/or the Artist.
4. If the Client has failed punctually to perform its payment obligations, Storm Agency will, in addition to cancellation of the Performance or dissolution of the Agreement pursuant to article 14, paragraph 3, of these conditions, also be authorized to suspend performance of the obligations undertaken vis-à-vis the Client for supply or for the performance of work until payment has been made or proper security for such payment has been provided. The foregoing will also apply even before the time of being in default if Storm Agency reasonably suspects that there are reasons to question the Client’s creditworthiness.
5. Any payments made by the Client will at all times serve as payment of all interest and costs due, and subsequently as payment of the exigible claim or the invoice that has been outstanding the longest, even if the Client states that the payment relates to a later invoice.
If the Client has, or will acquire, any counterclaims against Storm Agency on any ground whatsoever, the Client will waive the right to set off any such claim(s). Such waiver of the right to set-off will also apply if the Client files for a (provisional) moratorium on payment of its debts or is declared bankrupt.
The provisions under A of this paragraph will not apply if the Client is a private individual not acting in the pursuit of a profession or business.
ARTICLE 15: COMPLAINTS
1. Any complaints with respect to the (method of) performance of the Agreement may be submitted by the Client to Storm Agency, in writing and substantiated, within 8 days of performance of the Agreement. Any oral report is to be followed immediately by a written confirmation.
2. If a complaint is not communicated to Storm Agency within the said term, the Agreement will be deemed to have been properly performed.
3. Any complaints will not suspend the Client’s payment obligation.
4. Storm Agency is to be given the opportunity to investigate the complaint.
5. In the event of a founded complaint, the damage will be settled in accordance with the provisions of article 16.
ARTICLE 16: LIABILITY AND INDEMNIFICATION
1. The Client will be liable for any damage caused, prior to, during or after the Performance, to sound or light units or other equipment and/or property of the Artist and/or his staff that were in the location and/or the (dressing) room, by, without limitation, any acts or omissions on the part of the Client, its staff, any audience attending the Performance or malfunctions in the power supply, leakage, etc.
2. The Client is to take out adequate insurance for purposes of performance of the Agreement or the Performance.
3. Storm Agency will perform its duties as may be expected of a business in its industry, but disclaims any liability for damage, including consequential damage, as a result of its acts or omissions in the broadest sense, save to the extent attributable to gross fault, gross negligence and/or intent on its part. A similar restriction will apply to any Artists, staff members or other third parties engaged by Storm Agency in the performance of its services.
4. Without prejudice to the other provisions of this article, any liability on the part of Storm Agency and/or the Artist – on any basis whatsoever – will be limited to a maximum equal to the Performance Fee. Compliance with this provision will constitute sole and full damages.
5. Without prejudice to the provisions of the foregoing paragraph, Storm Agency will in no event be liable to pay damages exceeding the insured amount, to the extent that the damage is covered by an insurance policy taken out by Storm Agency.
6. Without prejudice to the provisions of the foregoing paragraphs, the following provisions will apply:
In any event the term within which Storm Agency and/or the Artist can be held liable for damages will be limited to 6 months.
In the event that the Client is a private individual not acting in the pursuit of a profession or business, the maximum term within which Storm Agency and/or the Artist can be held liable for damages will be 1 year.
7. The Client will forfeit its rights vis-à-vis Storm Agency and/or the Artist, and will be liable for any damage, and will indemnify Storm Agency and/or the Artist against any claims of third parties, including but not limited to the audience attending the Performance, in respect of damages, if and to the extent that:
such damage has occurred as a result of incorrect and/or incomplete information provided by the Client to Storm Agency and/or the Artist;
such damage has occurred as a result of acts on the part of the Client and/or third parties engaged by it contrary to the instructions and/or advice given by Storm Agency and/or the Artist;
such damage has occurred as a result of errors or inaccuracies in data, materials, information carriers, etc. provided and/or prescribed by or on behalf of the Client to Storm Agency;
such damage is the result of hearing impairment and/or other injury due to the Performance;
such damage and third-party claims, including all legal costs either incurred in court or otherwise, has/have been sustained as a result of claims in connection with failure by the Client and/or third parties engaged by it to comply with the warranties set forth in these conditions as well as the other obligations undertaken in the Agreement by the Client and/or the third parties engaged by it.
ARTICLE 17: BANKRUPTCY, LACK OF POWER OF DISPOSITION, etc.
Without prejudice to the provisions of the other articles of these conditions, the Agreement entered into between the Client and Storm Agency will be dissolved, without any judicial intervention or notice of default being required, at such time as the Client is declared bankrupt, files for a (provisional) moratorium on payment of its debts, becomes the subject to attachment in execution, is placed under guardianship or administration, or otherwise loses the power of disposition or legal capacity in respect of all or part of its assets, unless the receiver in the bankruptcy or the administrator in respect of the (provisional) moratorium acknowledges the obligations ensuing from the Agreement as estate debts.
ARTICLE 18: APPLICABLE LAW/COMPETENT COURT
1. The Agreement(s) entered into between Storm Agency and the Client will be governed exclusively by the laws of the Netherlands. Any disputes ensuing from such Agreement(s) will also exclusively be decided according to the laws of the Netherlands.
2. Any disputes will be decided exclusively by the competent court in Rotterdam, unless the subdistrict court judge in the place where the Client resides or has its registered office has jurisdiction to hear the dispute.
3. In the event that the Client is a private individual not acting in the pursuit of a profession or business, the Client may communicate, within one (1) month after Storm Agency has notified the Client that the matter will be submitted to the court, that he opts for resolution of the dispute by the court that has jurisdiction pursuant to the law.