General
The offers, invoices and agreements of BRIGHTBOARD BV are subject to the following terms and conditions. Deviations from these terms and conditions are only possible if expressly accepted in writing by BRIGHTBOARD BV.
Offers
All offers made by BRIGHTBOARD BV are without obligation and are for information purposes only. An order sent to BRIGHTBOARD BV is only accepted insofar as the order is expressly confirmed. An agreement is validly concluded by the customer signing the order form. As soon as BRIGHTBOARD BV receives the advance payment from a customer, this means that the customer agrees with the general terms and conditions and definitively places the order for the goods.
Deliveries
Delivery is made and risk passes at the time the goods are available to the customer in accordance with these general terms and conditions. Delivery times are provided for information purposes only and are in no way binding on BRIGHTBOARD BV.
Late deliveries shall not give rise to rescission or damages.
If, due to circumstances beyond its control, such as force majeure, BRIGHTBOARD BV is unable to fulfill an accepted order, BRIGHTBOARD BV may terminate the agreement by simple notification to the customer without being liable for compensation.
Assembly - Programming
If it is agreed that BRIGHTBOARD BV will be responsible for the installation and/or programming of the product, the customer must notify BRIGHTBOARD BV in writing that the necessary preparatory work at the customer's expense has been completed and is in compliance, before BRIGHTBOARD BV proceeds with installation.
The customer is responsible for the presence of an approved electrical installation, as well as suitable accommodations for the installation of the product. All possible taxes and duties shall be borne by the customer.
Defects - Liability
Complaints regarding execution of works, incorrect deliveries and externally visible defects must be communicated to BRIGHTBOARD BV by registered letter within 48 hours after delivery. If this period is exceeded, any claims against BRIGHTBOARD BV will lapse.
Complaints regarding hidden defects must be sent to BRIGHTBOARD BV by registered letter within 8 days of discovery. If this period is exceeded, any possible claim against BRIGHTBOARD BV will lapse.
BRIGHTBOARD BV is only responsible for the quality of the goods and services delivered, in accordance with the specifications provided by the customer in writing at the time of the order and for which the customer remains solely liable. Any other liability of BRIGHTBOARD BV is excluded.
The responsibility of BRIGHTBOARD BV is limited to the replacement of the delivered goods and services in case of non-conformity or to the refund of the invoice price, if BRIGHTBOARD BV so chooses.
BRIGHTBOARD BV cannot be held liable for any compensation for loss of business or for any other indirect damage.
The customer is responsible for permits of all kinds.
Payment
For the order of goods, an advance invoice is made by 50%, unless explicitly stated otherwise. The production process starts only after receipt of this advance invoice; also then the non-binding delivery period starts.
Unless otherwise stipulated on the accepted order form or invoice, the price is payable in cash at the registered office of BRIGHTBOARD BV, namely 1730 Asse, Zone 5 Mollem 318.
Without counter notification from the customer within 8 days of the billing date, the invoice is considered approved.
Invoices are payable within 15 days of the invoice date, without any deduction or set-off
Any amount remaining unpaid on the due date shall, without prior notice, automatically be increased by a fixed compensation of 15 percent of the total invoice amount, with a minimum of 250.00 EUR. In addition, any amount remaining unpaid without prior notice of default shall automatically incur default interest of 12 percent from the due date of the invoice.
Warranty
BRIGHTBOARD BV warrants normal operation of the product for the benefit of the customer for a period of 36 months. This period begins to run from delivery. This warranty does not apply for the benefit of third parties to whom the customer would have transferred the goods.
The warranty during this period has the following content:
- If a defect has been found on the products, BrightBoard guarantees that after notification of the defect, a BrightBoard technician (or a subcontractor) will arrive on site as soon as possible on business days. The goods will be repaired on site or taken to the manufacturing facility for repair. BRIGHTBOARD BV will not be liable for any damage suffered by the customer due to loss of enjoyment or loss of income during the period of repair. During the warranty period, the cost of spare parts shall be borne by BRIGHTBOARD BV, the labor and mileage shall be borne by the customer. Defects, caused by human action, will be invoiced by BrightBoard in direction at 90€ per hour worked (repair and transport fee).
- If certain parts are not in stock, they will be reordered and delivered within a reasonable time.
After expiration of 36 months, the interventions of BRIGHTBOARD BV, which include working hours and spare parts and any orders will be charged to the customer at the usual rates.
The warranty of BRIGHTBOARD BV is limited to the hidden defects, which could not reasonably have been detected at the time of delivery, and to the extent communicated in due time. The warranty of BRIGHTBOARD BV is limited to the services in connection with the installation as approved by BRIGHTBOARD BV, and to the replacement of spare parts. The warranty also does not apply if the customer does not maintain the products in a normal manner and if the defect is due to faulty maintenance. Maintenance costs will be borne by the customer.
The warranty becomes invalid if the customer has attempted to carry out repairs to the product himself or through third parties (except for repairs carried out by a BrightBoard trained technician), has made changes to the product or has not complied with the instructions for use, has used the product carelessly or has used the wrong spare parts. Under no circumstances can BRIGHTBOARD BV be held liable for consequential damages.
Cancellation - dissolution
If the customer cancels the order, the customer shall owe BRIGHTBOARD BV compensation of 60 percent of the integral price. If the customer cancels her order less than thirty days before the delivery of the product, compensation of 75 percent of the integral price is due.
In case of non-compliance by the customer with agreed payment terms, BRIGHTBOARD BV will have the choice, without notice of default or judicial intervention, between suspending future deliveries, on the one hand, and considering the agreement as legally terminated, on the other hand, without prejudice to its right to claim additional damages.
Retention of title
The products delivered and installed remain the property of BRIGHTBOARD BV until full payment of the price, including interest and damages, even if the customer has already used them. Until such time, the customer is not entitled to sell or lend the products to third parties, or to use them as collateral.
This retention of title does not affect the transfer of risk from BRIGHTBOARD BV the customer.
The customer shall voluntarily place at the disposal of BRIGHTBOARD BV the goods not paid for on the due date.
Termination of contract
The agreement between BRIGHTBOARD BV and the customer may be terminated immediately and without prior notice in case of cessation of activities by the customer, bankruptcy, judicial composition. A simple notification is sufficient.
Competent courts - Applicable law
All disputes relating to these terms and conditions and the agreement between BRIGHTBOARD BV and the customer shall be brought exclusively before the courts of the district of Brussels.
The contract between BRIGHTBOARD BV and the customer is governed by Belgian law.
General terms and conditions of rental
Article 1 - Definitions.
1.1 General Terms and Conditions: these general terms and conditions.
1.2 Equipment: the movable items to be rented by BrightBoard under the Agreement on a temporary basis and as a temporary auxiliary structure, such as video and LED equipment as well as all related materials and accessories.
1.3 Article: a provision of these General Terms and Conditions.
1.4 Source files: digital files used in the performance of the Agreement or created during its performance.
1.5 Dry Hire: the rental that relates solely to the Equipment and where no work is performed by BrightBoard on behalf of the Equipment, such as the installation, assembly, operation, maintenance and/or disassembly of the Equipment.
1.6 BrightBoard BV: Limited liability company Brightboard with registered office at 1730 Asse, Zone.
5 Mollem 318 (Belgium) and company number 0887904346.
1.7 Information carriers: magnetic tapes and disks, optical disks and all other means intended for the recording, processing, transmission or reproduction or publication of texts, images or other data by means of equipment, in the broadest sense of the word.
1.8 Customer: the (potential) other party of BrightBoard, this can be a tenant, a client or any other type of customer.
1.9 Location: the agreed place or places where the Equipment will be used by Customer on a temporary basis and as a temporary auxiliary structure.
1.10 Agreement: the agreement entered into between the Customer and BrightBoard, which may consist of a rental agreement for the rental of the Equipment, an assignment agreement for the invention of audiovisual services or any other type of agreement.
1.11 Party: Customer or, as the case may be, BrightBoard.
1.12 Parties: Customer and BrightBoard jointly.
1.13 Personnel: employees, trainees, directors, hired third parties and other persons performing work for a Party.
Article 2 - Applicability.
2.1 These General Conditions shall apply to the formation, content and performance of all Agreements, including all successor and supplementary Agreements, and to any disputes arising in connection therewith, unless the Parties expressly agree otherwise in writing.
2.2 These General Terms and Conditions are an integral part of the Agreement.
2.3 General terms and conditions of the Customer only apply if it has been expressly agreed in writing that they apply to the Agreement to the exclusion of these General Terms and Conditions.
Article3 - Formation of agreement
3.1 All offers and quotations from BrightBoard are non-binding and purely informational.
3.2 A new offer issued by a BrightBoard shall be considered a new and separate offer replacing all previous offers not accepted by the Customer.
3.3 Unless otherwise agreed in writing, all offers and quotations are based on the data as known at the time the offer or quotation is made and on performance of the Agreement under the working hours, working time schedules and working conditions stated in the relevant offer or quotation. If the execution of the Agreement at the request of Customer` is not carried out under the aforementioned working hours, working time schedules and/or working conditions, Customer shall be liable to reimburse BrightBoard for all additional costs involved, including additional hours incurred and waiting hours.
3.4 BrightBoard is authorized at all times to break off negotiations with Customer without giving reasons and without being liable for any compensation for damages and/or costs. BrightBoard also reserves the right to refuse any orders, commissions or orders from Customer for reasons of its own.
3.5 An Agreement is created when: (i) The parties have signed the Agreement drawn up by BrightBoard, (ii) BrightBoard has accepted in writing the order, instruction or order from Customer, (iii) Customer has timely accepted and confirmed in writing BrightBoard's quotation and BrightBoard has reconfirmed Customer's acceptance and confirmation in writing by sending an order confirmation, or (iv) BrightBoard commences performing or providing services, including rental of Equipment, at the request of Customer.
Article 4 - Prices
4.1 Prices quoted are exclusive of VAT and exclusive of other costs such as costs of insurance, transportation, loading and unloading, accommodation, expenses and hiring of third parties, unless BrightBoard expressly indicates otherwise in writing.
4.2 The Client accepts that changes to the order requested by or on its behalf, including changed instructions after the receipt of working drawings, models, sketches, proofs, storyboards, the layout specifications or work necessitated by adjustments to the order, may result in deviations from the budget and price. This also applies to extra workable models or animations, unclear descriptions, unclear sketches, drawings or models, faulty Information carriers, faulty computer software or data files, faulty method of delivery of the materials or products to be supplied by the Customer and all similar supplies by the Customer which require BrightBoard to perform more work or incur more costs than it could reasonably have expected at the time of entering into the Agreement.
Article 5 - Payment
5.1 Payment by Customer must be made within the payment period specified in the quotation, order confirmation or invoice.
5.2 BrightBoard is entitled to request full or partial advance payments, whether or not during the execution of the Agreement. Without prejudice to any other rights it may have, BrightBoard reserves the right to suspend the execution of the Agreement, with or without notifying Customer, until the advance invoice is paid.
5.3 Payment by Customer shall be made exclusively in Euro, without set-off, discount, reduction or suspension. If Customer has complained in writing about an invoice within the payment period and in BrightBoard's opinion the complaint is justified, payment may be suspended only with respect to that portion of the invoice to which the complaint relates.
5.4 All costs in connection with payment, provision of security, costs for transactions and costs in connection with changes in currency are also included, shall be borne by Customer. Any amount remaining unpaid on the due date shall, without prior notice, be increased ipso jure by a lump-sum compensation of 12 percent of the total invoice amount with a minimum of EUR 125.00. In addition, any amount remaining unpaid shall, without prior notice, automatically incur default interest of 15 percent from the due date of the invoice until full payment. In the event of late payment of an invoice, all outstanding (non-due) invoices shall immediately become due and payable in full.
5.5 BrightBoard is entitled to offset, even if the legal requirements for debt comparison are not met, including but not limited to offsetting claims of BrightBoard and/or BrightBoard group companies against Customer against claims of Customer against BrightBoard and/or BrightBoard group companies, regardless of the legal basis of the claims in question.
Article 6 - Security
6.1 If, in BrightBoard's opinion, there is reasonable cause to fear that the Customer will fail to fulfill its obligations to BrightBoard properly or on time, the Customer shall be obligated, upon BrightBoard's first request, to immediately provide adequate security, in the form requested by BrightBoard, for the complete fulfillment by the Customer of all its (payment) obligations, or to replace or supplement the security provided. The security offered must be such that the claim against the Customer, together with any interest and costs, is adequately covered and that the BrightBoard can recover it without difficulty.
6.2 If Customer fails to comply with a request for security described in the preceding paragraph within seven calendar days of receipt, all consequences of non-compliance shall take effect immediately, including without limitation BrightBoard's right to suspend its obligations and the right to recover the Equipment.
Article 7 - Execution of the agreement in general
7.1 All further instructions to be given by Customer to BrightBoard for the performance of the Agreement must be given by Customer in writing. If BrightBoard is instructed verbally by Customer, BrightBoard shall confirm this to Customer in writing if possible after giving the instruction. Without prejudice to the other provisions herein, BrightBoard shall not be liable for the consequences of any inaccuracies or misunderstandings resulting from verbal instructions given by Customer.
7.2 Unless otherwise expressly agreed in writing or indicated by BrightBoard, delivery dates, schedules, milestones, review moments and the like are indicative. Shift in schedule, related to modifications or other requests by Customer, including those described in Clause
4.2, may result in an order exceeding the scheduled and available production capacity, which may result in delayed performance of the work Customer accepts these consequences.
7.3 Customer shall generally provide such cooperation as is reasonably necessary for BrightBoard to perform the Agreement, including but not limited to making facilities available, providing access to premises and buildings, taking delivery of items, having sufficient and qualified Personnel available to assist BrightBoard Personnel, providing necessary input and making necessary decisions in a timely manner.
7.4 Unless otherwise expressly agreed in writing or specified herein, the Customer shall provide the necessary (technical) facilities, infrastructure and resources to put the BrightBoard Delivered into use.
7.5 Customer shall ensure that all information and files supplied by it are true, current, accurate and complete, that they do not infringe on any third party (intellectual) property rights, and that they comply with applicable laws and regulations. BrightBoard is under no obligation to review the information or files received from Customer for the foregoing.
7.6 When BrightBoard Personnel perform work at Customer's premises, Customer shall ensure that the working conditions on site are in accordance with the rules on welfare at work.
7.7 Failure of Customer to comply with the obligations set forth in the Agreement (including these Terms and Conditions) shall constitute a default and BrightBoard shall be entitled, among other things, to suspend its obligations and charge any additional costs incurred in connection therewith.
Article 8 - Special provisions regarding equipment rental
8.1. General
8.1.1. In addition to the other provisions of these Terms and Conditions, provisions in this Section 8 shall apply when BrightBoard rents Equipment.
8.1.2. BrightBoard is entitled to rent replacement Equipment of equivalent or better quality to Customer, if the agreed Equipment is not available for the performance of the Agreement.
8.2. Duration of rental agreement
8.2.1. The Agreement is entered into for the rental period specified in the Agreement and commences on the agreed date of delivery of the Equipment.
8.3. BrightBoard Obligations.
8.3.1. BrightBoard undertakes to make the agreed Equipment available to Customer in good condition and in accordance with the agreed specifications, dimensions and, where necessary, weight as stated in the Agreement.
8.3.2. Unless otherwise agreed in writing, BrightBoard shall make the Equipment available to Customer by delivery of the Equipment to the agreed Location.
8.4. Cooperation of Customer.
8.4.1. Customer should indicate where the Equipment is to be unloaded. After the event, Customer shall indicate where the Equipment is to be loaded. Regardless of the legal basis and without prejudice to the other provisions herein, BrightBoard shall not be liable for any damage that may occur as a result of following Customer's instructions regarding loading and/or unloading.
8.4.2. If it is an outdoor event, Customer is obliged to ensure safe and accessible site conditions. If delivery, loading, unloading and/or removal of the Equipment is not possible or delayed on the agreed date due to site conditions, Customer shall reimburse BrightBoard for the associated costs. BrightBoard, regardless of the legal basis and without prejudice to the other provisions herein, shall not be liable for any damage that may occur to roads, paths or land at the Location or at or near the place where the Equipment is located within the Location, whether or not this is considered private or public land, as a result of following Customer's instructions regarding the delivery, loading, unloading or removal of the Equipment and/or entering and/or leaving the premises. Customer shall indemnify BrightBoard in this regard.
8.4.3. Before the Agreement can be executed by BrightBoard, Customer is required to instruct BrightBoard where the Equipment is to be installed.
8.4.4. Customer is responsible and shall take care to obtain all permits, licenses and other approvals necessary to host the event and use the Equipment.
8.4.5. Customer must strictly follow BrightBoard's advice regarding the positioning of the Equipment.
8.4.6. Customer agrees to provide BrightBoard with an uninterrupted power supply in a timely manner and free of charge whenever BrightBoard deems it appropriate for the Equipment. At BrightBoard's first request, Customer shall provide as much lighting as is necessary to work safely (at night).
8.4.7. Customer shall provide BrightBoard and Personnel engaged by BrightBoard with the opportunity to enter and leave the Location at all times for, as the case may be, loading, unloading, assembly, installation, operation, maintenance, disassembly and/or removal (from the Location) of the Equipment. Customer shall provide BrightBoard with adequate and continuous access tickets for this purpose, if necessary.
8.4.8. Customer is responsible for the timely completion of the work of its Personnel that is to be performed prior to the installation and assembly of the Equipment, so that BrightBoard has sufficient time to perform the work agreed upon with Customer. BrightBoard is entitled to charge Customer for waiting hours if said work has not been completed in a timely manner.
8.5. Use of the Equipment
8.5.1. Customer is obliged to behave as a good tenant of the Equipment and to use the Equipment carefully and competently in accordance with its intended use. Customer shall follow any instructions supplied or communicated with respect to the Equipment.
8.5.2. If the Agreement provides that BrightBoard cannot provide for the installation, disassembly, maintenance and/or operation of the Equipment on some specifically designated dates, then Customer may not use the Equipment on those dates without BrightBoard's express prior written consent.
8.5.3. Except with BrightBoard's express prior written consent, Customer shall not be permitted to make any changes to or to the Equipment. BrightBoard is, however, entitled to make changes to or to the Equipment if necessary for proper performance of the Agreement and/or to comply with applicable laws and/or regulations or governmental measures or orders.
8.5.4. Without BrightBoard's express permission, Customer shall not: (i) open the housing/packaging of the Equipment or any part thereof, (ii) move the Equipment and/or (iii) operate the Equipment.
8.5.5. After the end of the rental term, Customer must make the Equipment available to BrightBoard again.
8.6. Location
8.6.1. The Equipment may only be used at the Location. If the Equipment is not at the Location after the date of delivery and at any time during the rental period or is or has been moved to another location, BrightBoard is entitled to terminate the Agreement in writing with immediate effect, either by rescinding it in whole or in part or by terminating it. In addition, in such event, the Customer shall immediately be liable for a penalty of €50,000
(fifty thousand euros), without prejudice to BrightBoard's other rights, including but not limited to the right to damages and performance.
8.6.2. If the Equipment is located at the Location in a transport vehicle in which the control room is located, neither Customer nor its Personnel shall be permitted to enter the control room in the transport vehicle and/or the transport vehicle itself, unless this takes place at the invitation and under the supervision of a BrightBoard Personnel and under the condition that all safety procedures instituted by BrightBoard are strictly observed.
8.7. Audiovisual transmission equipment
8.7.1. Unless otherwise expressly agreed in writing, the Customer shall be responsible for the provision and content of the audiovisual transmission material to be shown and/or broadcast via the Equipment. Customer shall then where necessary, and at its own expense, obtain all necessary permits, licenses and permissions to display and broadcast all transmission material on or via the Equipment. Customer is advised not to use any original material in the Equipment or in connection with the use of the Equipment without first having made a back-up copy.
8.7.2. Customer shall indemnify and hold BrightBoard harmless from all third party claims based on the assertion that the showing and/or broadcasting of the Transmission Material and/or the Transmission Material itself infringes their (intellectual property) rights and/or does not comply with relevant applicable laws and/or regulations, except to the extent that the claim can be fully attributed to BrightBoard.
8.7.3. BrightBoard, regardless of the legal basis and without prejudice to the other provisions herein, shall not be liable for any loss of or damage to or to any (original) transmission material.
8.8. Dry Hire
8.8.1. The provisions of Articles 8.4.3, 8.4.5, 8.4.6 second sentence, 8.4.7, 8.4.8, 8.5.2, 8.5.4 and 8.6.2 shall not apply in the case of Dry Hire.
8.8.2. In the event of Dry Hire, BrightBoard shall have no obligation to inquire of Customer as to the intended use of the Equipment or the circumstances under which the Equipment will be used. Without prejudice to the other provisions herein and regardless of the legal basis, BrightBoard shall not be liable for Customer's application and/or use of the Equipment in such case.
8.9. Protection Equipment and insurance requirements.
8.9.1. The Customer is obliged to take all necessary measures to protect the Equipment during the rental period against vandalism, theft, loss and other risks. The Customer is obliged to properly secure the Equipment, the premises, the Location and the place where the Equipment is located, which in any case means that third parties do not have unauthorized access to the Equipment.
8.9.2. From the date of delivery of the Equipment and during the rental period, the Customer is obliged to have all risks relating to the Equipment insured with a nationally recognized insurance company, the value of the Equipment being fully insured.
8.9.3. Customer shall cause BrightBoard to be included as a co-insured in the policies mentioned in Section 8.9.2, without BrightBoard becoming liable for premiums or having to pay a deductible or other compensation (to insurer). Customer shall ensure that benefits from the insurer with respect to the Equipment are paid directly to BrightBoard. Customer shall always pay the associated premiums in a timely manner and provide BrightBoard with a copy of the policies and associated policy terms upon first request. If necessary, Customer shall assign to BrightBoard any claim against the insurer in respect of a payment relating to the Equipment.
8.9.4. If Customer is not insured because it fails to comply with its obligations under Article
8.9.2. and/or 8.9.3, Customer shall be liable without limitation for all damage to the Equipment, including but not limited to vandalism, theft, loss and other realized risks, regardless of whether there is force majeure on the part of Customer.
8.10. Damage to Equipment and complaints about Equipment.
8.10.1. Customer is obliged to notify BrightBoard immediately of damage to the Equipment and complaints about the (operation of) the Equipment and to confirm this in writing to BrightBoard within 24 hours, but no later than three calendar days after the end of the event in question. In the notification, Customer must indicate in sufficient detail what the damage is and/or what the complaint relates to. If Customer has not complained within the aforementioned period and/or not sufficiently specified, any claim by Customer shall lapse and BrightBoard shall not be liable to Customer.
8.10.2. If a complaint is found to be justified by BrightBoard (which in any case is not the case if the problem with the Equipment was caused by Customer and/or third parties hired by Customer and/or items deployed by Customer and/or the problem is otherwise the responsibility of the Customer), BrightBoard shall only be required to replace or repair the part(s) of the Equipment or the Equipment to which the complaint relates free of charge and within a reasonable period of time, or to reimburse an amount in accordance with the provisions of Clause 8.10.3, at BrightBoard's option.
8.10.3. If at any time during the rental period, the Equipment fails to function for a total transmission time of more than 15% of the total scheduled transmission time on any given day due to: (i) a circumstance which in BrightBoard's judgment should be the responsibility and risk of BrightBoard, (ii) the failure of the Equipment itself to function, or (iii) the acts or omissions of BrightBoard's Personnel, and such problem cannot be remedied or, as the case may be, repaired by BrightBoard within a reasonable period of time, then BrightBoard shall refund to Customer an amount equal to the lost transmission time and calculated as a certain percentage of the total rental price owed by Customer, excluding transportation, labor and other costs, and taking into account the number of screens used and days of use, provided that BrightBoard's maximum liability, regardless of the legal basis, shall be limited to the amount actually paid by Customer for the rental of the Equipment in question.
8.10.4. The provisions of Articles 15.1 through 15.9 shall apply mutatis mutandis.
8.10.5. Complaints regarding the non-conformity of the equipment or hidden defects must be formulated within 14 days of discovery.
8.11. Retrieval of Equipment.
8.11.1. In the event of non-performance by Customer of one or more of its obligations under the Agreement (including for clarity its obligations under these Terms and Conditions), BrightBoard shall have the right to recover (or cause to be recovered) the Equipment made available to Customer.
8.11.2. Customer hereby irrevocably authorizes BrightBoard to enter, or cause to be entered, the premises and/or areas where the Equipment in question is located and, where appropriate, is obliged to ensure that the third parties authorized to do so grant BrightBoard permission to enter, or cause BrightBoard to enter, the premises and/or areas where the Equipment in question is located.
8.11.3. All costs incurred by BrightBoard in connection with the retrieval of the Equipment due to Customer's non-performance shall be borne by Customer.
Article 9 - Special provisions regarding the execution of orders
9.1. General
9.1.1. In addition to the other provisions of these Terms and Conditions, provisions of this Section 9 shall apply when BrightBoard provides services or performs work.
9.2. Order execution
9.2.1. Unless the Parties expressly agree otherwise in writing, BrightBoard shall have no performance obligation.
9.2.2. BrightBoard shall endeavor to produce the works as a normal and diligent contractor in accordance with design, drawing, sketch, model or storyboard or the proofs.
9.3. Storage or delivery
9.3.1. Customer is obligated to examine whether BrightBoard has properly fulfilled the Agreement immediately upon delivery, and is further obligated to notify BrightBoard in writing immediately upon becoming aware of the contrary. With the written notification, the Customer must specify in sufficient detail what, in its opinion, the shortcoming is. The fulfillment of the Agreement shall in any event be deemed proper if the Customer has failed to make the examination or notification referred to above (in a timely manner).
9.3.2. Approval of trials by Customer shall constitute Customer's acknowledgement that BrightBoard has correctly performed the work preceding the trials.
9.3.3. BrightBoard shall always be entitled to in-kind recovery unless the failure is not remediable.
9.3.4. The performance of the BrightBoard shall in any case be deemed sound between the Parties if the Customer has put into use, processed or treated the delivered item or part of the delivered item, delivered it to third parties, or has had it put into use.
9.3.5. Deviations between the delivered work on the one hand and the original design, drawing, sketch, model or storyboard respectively the proofs on the other hand, cannot constitute a reason for rejection, discount, dissolution of the Agreement or compensation, if they are of minor importance and/or do not prevent the commissioning of the delivered work. Deviations which, all circumstances considered, in all reasonableness have no or a minor influence on the use value of the work delivered, shall always be considered deviations of minor importance.
9.3.6. In the event of deviations that are not of minor significance, if Customer has complied with the provisions of paragraph 1, BrightBoard shall attempt to remedy the deviations with due diligence. However, BrightBoard cannot guarantee such rectification. If BrightBoard does not succeed in remedying the deviation before an event takes place or any other agreed time, it reserves the right to rescind the Agreement in whole or in part and to credit the amount of the work to the extent of the non-significant deviations. This shall then be the sole remedy for Customer.
Article 10 - Ownership
10.1 Customer acknowledges and respects that BrightBoard is and shall remain the owner of the Equipment. Customer is required to notify third parties, including but not limited to its customers and the parties who own or are responsible for the event in question and third parties engaged by Customer for the set-up and take-down of the event, clearly and in a timely manner, i.e. no later than the time the Equipment will be used, in writing that the
Equipment: (a) is the property of BrightBoard, (b) has been provided to Customer on a temporary basis and for use as a temporary device, and (c) must be removed and returned (by BrightBoard) to BrightBoard after the event. Customer is obliged to provide BrightBoard with a copy of the relevant notifications upon BrightBoard's first request.
10.2 Customer shall not do or refrain from doing anything that may infringe on BrightBoard's ownership rights, including but not limited to attaching Equipment in such a way as to cause it to become wet or incorporated with other items and removing BrightBoard's ownership marks on the Equipment.
10.3 Without BrightBoard's express prior written consent, Customer shall not alienate, pledge as security, encumber, or rent or sublet in any way, in whole or in part, directly or indirectly, any of the Equipment given to it on lease.
10.4 Customer is obliged to notify BrightBoard immediately if third parties assert rights over the Equipment or it has knowledge that third parties intend to assert rights over the aforementioned Equipment.
10.5 If and to the extent BrightBoard has leased the Equipment from third parties, Articles 10.1 through 10.4 shall apply mutatis mutandis and the provisions shall apply with respect to the respective owner.
10.6 BrightBoard shall exercise the same care regarding storage and use, treatment and processing of other items entrusted to BrightBoard by or on behalf of the Customer as it exercises regarding its own items. The customer shall bear the risk for said items and shall be responsible for insuring them. Customer grants BrightBoard a lien on these items as security for payment of amounts owed to BrightBoard.
10.7 To the extent BrightBoard supplies items as part of the performance of work (this does not include Equipment as this is only rented), these items shall remain the property of BrightBoard until Customer has paid for these items (if so agreed), as well as the costs of any work performed or to be performed on behalf of Customer in connection with the items, as well as claims due to Customer's failure to fulfill the Agreement, including interest, costs and any penalties.
Article 11 - Intellectual property rights
11.1 Customer shall indemnify and hold BrightBoard harmless from all third party claims relating to the infringement of their (intellectual) property rights in connection with the performance of the Agreement, unless such claim is wholly attributable to BrightBoard.
11.2 The Source Files shall remain the property of the BrightBoard. BrightBoard has no obligation to retain these Source Files and does not guarantee their suitability for reuse. Unless expressly agreed otherwise in writing, Customer has no right to access or copy the Source Files.
11.3 Customer acquires on the Delivered a limited, non-transferable, non-sublicensable license to use it in the form, scope, in the manner, for the duration and for the purpose described in the Agreement.
11.4 Unless expressly agreed otherwise in writing, Customer does not acquire ownership of the Delivered, regardless of whether Customer reproduces and/or discloses the Delivered under its own name.
11.5 BrightBoard is entitled to include its name in the work delivered in an appropriate place and is also entitled to include the © symbol and the year of first publication. The customer is obligated to always publish and reproduce the delivered goods, including the name of BrightBoard and/or other data, except for deviations pursuant to prior written consent of BrightBoard.
11.6 In the event of screening by or on behalf of the Customer of the work delivered, image and sound may not be disclosed separately, but only disclosure of image and sound together is permitted. Also, the Delivered must always be shown in its entirety.
11.7 Customer is solely responsible for acquiring disclosure, display, recording and/or reproduction rights with respect to the music, lyrics and/or other elements that are part of the Delivered.
11.8 Without prejudice to its other rights, BrightBoard shall always be free to use the Delivered or a reproduction thereof for the benefit of other Customers, its own publicity, promotion and exhibition of the Delivered and to mention the Customer's name in doing so, unless otherwise agreed in writing between the Parties in advance.
Article 12 - Force majeure
12.1 If due to one or more circumstances not for the account of the Party concerned, including but not limited to the circumstances mentioned in Article 12.2 but excluding payment obligations of Customer and the circumstances mentioned in Article 12.3, is permanently impossible in whole or in part, the Party affected by force majeure shall not be liable to the other Party for any failure to perform its obligations under the Agreement, any default occurring as a result thereof or any delay in the performance of the Agreement and each Party shall have the right to rescind the Agreement in whole or in part. If the inability to perform is temporary, the Agreement may be performed at a later time, unless performance at a later time is no longer of value to BrightBoard.
12.2 Circumstances which in any case constitute force majeure on the part of BrightBoard are: government issued or to be issued regulations or measures which prevent or limit the use of the Equipment rented or to be rented or otherwise prevent or limit BrightBoard in the performance of the Agreement, strikes, lockouts, union actions, illness, disability or other unavailability of Personnel, epidemic(s)/pandemic(s) (imminent), import, export and/or transit bans with respect to the Equipment, transportation problems, non-fulfillment of obligations by BrightBoard's suppliers or auxiliary persons or transport companies engaged by BrightBoard, signal and/or power failures or other interruptions, obstructions or stagnation in means supplied by utility companies, cable damage, fire, machine breakdown, wrong stage set-up, wrong lighting, no or wrong sound reproduction, natural and/or nuclear disasters, war and/or threat of war, mobilization, terrorist actions and/or attacks. Customer cannot claim any right to compensation of costs, damages or interest nor performance.
12.3 (i) Weather conditions, (ii) failure, for whatever reason, to proceed or (early) cancellation of the event for which the Equipment and/or, if applicable, BrightBoard Personnel have been rented by Customer, (iii) cancellation, for whatever reason, of the order given to BrightBoard, (iv) failure to use or take into use the Equipment after delivery to Customer, and/or (v) failure to comply, properly or timely with agreements made by Customer with third parties, shall not constitute force majeure on the part of Customer.
12.4 If a Party is affected by force majeure, it shall promptly notify the other Party orally and confirm in writing within 24 hours of the oral notification.
Article 13 - Termination of Agreement.
13.1 If Customer fails to perform any of its obligations to BrightBoard under the Agreement and/or these Terms and Conditions or if: (a) suspension of payment by Customer is or has been applied for or granted, (b) Customer's bankruptcy is or has been applied for or declared, (c) Customer enters into an arrangement with its creditors or takes other steps to restructure its debts, (d) Customer is otherwise restricted or loses control over its assets, (e) Customer ceases its business activities or moves to another country, or is liquidated or dissolved, merges or splits, or a resolution to do any of the foregoing is passed, or (f) Customer has lost actual control over all or part of the Equipment, BrightBoard shall have the right to terminate the Agreement in writing with immediate effect, either by rescinding the Agreement in whole or in part or by terminating the Agreement, and to suspend further performance of its obligations under the Agreement, whether or not without notice, all without prejudice to all other rights to which it is entitled and without being liable for damages. Setting a deadline for fulfillment in BrightBoard's written notice shall not be required if, in BrightBoard's opinion, fulfillment is not possible or not desirable.
13.2 All claims of BrightBoard against Customer shall become due and payable immediately upon termination of the Agreement. After the termination of the Agreement, for whatever reason, BrightBoard shall not be required to refund any amounts already paid, unless the Parties have expressly agreed otherwise in writing.
Article 14 - Cancellation by the customer
14.1 If Customer cancels an event and for that reason the Agreement cannot be performed, Customer shall be obligated to reimburse BrightBoard a percentage of the agreed rental price in accordance with the schedule shown below:
- Cancellation up to 1 month before the start of the rental period: 40% of the total rental price.
- Cancellation 1 month before the start of the rental period: 60% of the total rental price.
- Cancellation 2 weeks prior to start of rental period: 75% of total rental price.
- Cancellation 1 week before the start of the rental period: 90% of the total rental price.
- Cancellation after the Equipment and/or, as the case may be, BrightBoard Personnel have arrived at the Location: 100% of the total rental price.
Article 15 - Liability
15.1 BrightBoard's liability in connection with the rental of Equipment, regardless of the legal basis, shall be limited to a maximum of the total rental price paid by Customer during the rental period for the rental of the Equipment which caused the damage suffered by Customer.
15.2 Without prejudice to the other provisions of these Terms and Conditions, BrightBoard shall not be liable, regardless of the legal basis, for damage caused by or resulting from the use, processing and transmission of information supplied by Customer, nor for damage resulting from or after Customer has put the manufactured items or works into use, processed or treated them, delivered them to third parties, or has had them put into use, processed or treated or delivered to third parties, respectively, unless the damage would not have been foreseeable even to a careful and alert client.
15.3 BrightBoard, regardless of the legal basis, shall not be liable for consequential damages, whether suffered as a direct or indirect result and including, but not limited to: lost profits, incurred losses, loss of sales, loss of goodwill, reputational damage, costs incurred, loss of enjoyment, loss of enjoyment, loss of data, loss of contracts, missed orders, missed savings, claims of Customer's customers, claims of Customer's Personnel, fines payable, unrecovered investments, damage related to the use of third parties prescribed by the Customer or prescribed items, materials or means of transportation and damage due to production or business interruptions or stagnation.
15.4 In any event, the Customer must give BrightBoard notice of default by registered letter, in which the (alleged) shortcoming and obligations to be fulfilled are sufficiently specified and in which BrightBoard is given a reasonable period of time to still fulfill its obligations.
15.5 On penalty of forfeiture of the right to claim damages, Customer must notify BrightBoard as soon as possible and no later than one (1) month after becoming aware of the cause of the damage. Any claim for compensation shall lapse if Customer does not pursue the damage through the courts no later than six (6) months after the moment Customer became aware or could reasonably have become aware of the existence of the damage.
15.6 Customer, regardless of the legal basis, shall be liable to BrightBoard for all damage caused at the Location and during the rental period to: (i) the Equipment and/or (ii) BrightBoard Personnel and/or (iii) property of BrightBoard Personnel, unless the damage in question was caused by the fault of BrightBoard Personnel.
15.7 Should BrightBoard be held liable by a third party for any damages, for which it is not liable under the Agreement and/or these Terms and Conditions, or be subject to any other type of claim or sanction, Customer shall indemnify and hold it harmless both in and out of court with respect thereto, and reimburse the BrightBoard for everything it is required to pay to such third party.
Article 16 - Secrecy
16.1 If the Parties have not concluded a confidentiality agreement or the confidentiality agreement concluded between them has ended, the following shall apply. Each Party undertakes not at any time to disclose to any third party or use for any purpose other than the performance of the Contract(s) any confidential information relating to the Contract(s), quotations, order confirmations and assignments or concerning the work and affairs of the other Party, except: (a) to the extent required by or under the law or upon the order of a court, or (b) to the extent that it is provided to a professional advisor under an obligation of confidentiality or with a legal duty of secrecy and then only to the extent that it is provided for lawful purposes or (c) to the extent that the information in question is already in the public domain at the date of entering into the Agreement or at any time thereafter, without any unlawful act by any person or which such person could reasonably have known to be unlawful to disclose. Confidential information includes but is not limited to: price lists, customer data, know-how, designs, drawings sketches, models, proofs and storyboards, specifications and all (other) information, written or oral, whether or not recorded on data carriers received by Customer from BrightBoard.
Article 17 - General provisions
17.1 Deviation from these General Conditions may only be made by written agreement between the Parties.
17.2 In case of inconsistency, difference of interpretation or contradiction between the Agreements these General Terms and Conditions, the Agreement shall prevail, unless in Parties expressly agree otherwise in writing.
17.3 If any provision of these General Terms and Conditions shall be invalid, illegal, non-binding or (wholly or partly) unenforceable, the remaining provisions of these General Terms and Conditions shall remain in force. The parties shall make every effort to agree on a new provision that deviates as little as possible from the invalid, illegal, non-binding or unenforceable provision, taking into account the content and purpose of these General Terms and Conditions.
17.4 Without BrightBoard's express prior written consent, Customer shall not be entitled to assign its rights or obligations under the Agreement or its legal relationship with BrightBoard under the Agreement to any third party. BrightBoard shall be entitled, without Customer's consent, to transfer its rights and obligations to a third party who acquires all or part of its business.
17.5 If work is performed at a remote location (e.g., film set or Customer's office), Customer is not permitted to offer Personnel assignments or an employment contract without notice to, and written consent from, BrightBoard.
17.6 If at any time a Party does not invoke a particular clause in the Agreement or these General Terms and Conditions, it does not thereby signify a waiver of that clause.
17.7 In case of inconsistency, differences of interpretation or contradiction between the Dutch text of these General Terms and Conditions and translations thereof, the Dutch text shall always prevail.
17.8 In these General Conditions, "in writing" shall include by fax, e-mail or other electronic medium, addressed to the address or number of a Party known to or disclosed to the other Party and with which successful communication has already been made.
17.9 In these Terms and Conditions, "delivery of Equipment" means the actual provision of the Equipment by BrightBoard.
Article 18 - Applicable law and competent court
18.1 All legal relationships between BrightBoard and Customer shall be governed exclusively by Belgian law.
18.2 The District Court of the district in which BrightBoard has its principal place of business shall have exclusive jurisdiction to hear all disputes that may arise between BrightBoard and Customer arising out of or in connection with (the performance of) the Agreement(s) as well as in connection with these Terms and Conditions.