First day of Spring

Terms & Conditions

 Who we are. We are First Day of Spring B.V. a limited liability company registered in Amsterdam, the Netherlands. Our object is creative marketing and we are specialized in marketing, entertainment and Advertising.

  1. First Day of Spring has been registered at the Dutch trade register (Chamber of Commerce) under number 34317444. Our registered office is at Groenmarktkade 5, 1016 TA Amsterdam and our registered VAT number is [NL.8201.11.910.B01].
  2. How to contact us. You can contact us by telephoning +31 (0) 20 707 1277 or by writing to info@fdos.nl.
  3. Definitions
    3.1 You: the company or individual accepting the Commission.
    3.2 FDOS and we: First Day of Spring B.V. granting the Commission to perform the
    3.3 Parties: You and FDOS jointly.
    3.4 Brief: instructions given by You outlining the necessary details for FDOS to implement the Project.
    3.5 Commission: Your request to FDOS to perform Services for payment including tender and pitch commissions.
    3.6 Services: everything that FDOS undertakes and / or creates for You, within the scope of the Commission (proposals, concepts, copy, designs, production, artwork, art direction, scripts and media services).
    3.7 Work: documents, proposals, concepts, artwork, images, designs, trade marks, and any other material in which intellectual property rights may exist.
    3.8 Project: the work and activities detailed in the Proposal / Commission / SOW (Scope of Work).
    3.9 Proposal(s): a description of the Services with an estimation of the costs.
    3.10 Fee: the fee or portion of fee payable for the provision of the Services by FDOS.
    3.11 Approval: the authorisation given by You by letter or e-­mail or by signing any document issued by FDOS pertaining to the Project.
    3.12 External Services: any product and services purchased (technical or legal support or photos for example) by FDOS in the provision and implementation of the Project.
    3.15 Material of You: any image, document or item provided by You to FDOS in the implementation of the Project.
    3.16 Corporate Identity: trademark, name, logo by which You are known or by which You wish to be identified in the Project.
    3.17 Update: an interim document produced by FDOS detailing progress or the outcome of discussions between You and FDOS.
    3.18 T&C: these terms and conditions.
  4. T&C
    4.1 What these T&C cover. These are the T&C on which we provide our Services to
    4.2 Any provisions that deviate from these T&C, including those in any general terms and conditions used by You and / or any third party (engaged by You) will not bind FDOS, unless expressly agreed in writing by both parties (You and FDOS).
    4.3 These T&C are applicable to all Proposals of FDOS and all agreements entered into between Parties.
    4.4 These T&C and in particular the intellectual property and reproduction restrictions are applicable to all our concepts, creations and designs presented during a project pitch, tender and development.
  5. Proposals
    5.1 All Proposals of FDOS are subject to contract, unless expressly agreed to the contrary in writing. FDOS will prepare one or more Proposals based on Your Brief.
    5.2 If requested FDOS will futher descripe the Services prior to commencement of the
    5.3 In the event that FDOS has started the Services prior to any written description of the Services, the content of the Proposal together with these T&C shall constitute the content of the Commission.
    5.4 FDOS shall inform You of the costs incurred and shall inform You of any potential overrun of the amount quoted in the Proposal.
    5.5 In the event that You do not formally accept a Proposal but subsequently proceed with a project which is substantially the same as or similar to any Proposal submitted by FDOS, then FDOS reserves the right to charge You commission of 50 % of the FDOS Fee quoted in the Proposal. The opinion of FDOS that a project is substantially the same as or similar to any Proposal shall be conclusive, until You prove the opposite.
  6. Commission
    6.1 The Commission shall be deemed to have been accepted by You and to have been issued by FDOS by either a written confirmation of You to FDOS or by FDOS starting the execution of the Services.
    6.2 The Commission may be amended by agreement between You and FDOS. If the changes are substantially (exceed periods of time / additional or reduced costs) FDOS will send an amended Proposal and / or Commission for You to sign and     return to confirm approval.
    6.3 If You (for any reason) decide to cancel an issued Commission or to no longer desire the completion of the issued Commission, You shall be obliged to reimburse FDOS for any costs reasonably incurred by FDOS (see article 10).
  7. Obligations
    7.1 Once a Commission has been accepted FDOS will use all due care and professionalism to implement the Project.
    7.2 FDOS may change any supplier detailed in the Commission at any time if in the reasonable opinion of FDOS the specified supplier will not be able to perform the Services properly.
    7.3 FDOS shall not be responsible for any acts or omissions of any supplier unless it can be shown that FDOS was negligent in the performance of its duties and
    7.4 You shall give to FDOS a Brief outlining requirements of the Project. This outline should include the general nature and date(s) of, and budget for the Project, and such further information as will be relevant for FDOS to consider when preparing the Proposal(s).
    7.5 FDOS shall make contact reports (Update(s)). Unless You notify FDOS within seven days of the release of an Update that the document contains errors, FDOS will take the action identified in the Update.
    7.6 You shall ensure that all legislative requirement applicable to your business, products and / or services are brought to the attention of FDOS in the Brief or as soon as is reasonably practicable.
    7.7 You confirm your absolute title to the Corporate Identity and that it is authorised to allow FDOS to use the Corporate Identity freely for the Project.
    7.8 You will appoint someone who has the authority to make all decisions in relation to the Project, including amendments to the Commission, decisions on expenditure and receipt of potential Update(s).
    7.9 In case the Project contains (also) an event, You and Your guests must comply with any rules of the venue or location and follow the lawful instructions of the owner or operator of the venue.
    7.10 If You have agreed to carry out any action prior to or during the Project as detailed in either the Commission or an Update these must be carries out properly and  
    7.11 FDOS will at all times be acting as Your agent and You will be primarily liable for the costs of all suppliers engaged in the implementation of the Project.
    7.12 FDOS shall endeavour to meet all dates for the provision of its Services and shall notify You of actual and / or potential delays to the provision of such Services. If You fail promptly to provide FDOS with approved response or a notice of default, FDOS shall not be responsible for any delay in the provision of its Services as a     consequence nor for any additional costs incurred as a result of the delay.
    7.13 Each Party is under the obligation to maintain strict confidentiality concerning all data and information made available by the other Party, insofar these are to be considered confidential by their nature and / or these are to be deemed protected by any intellectual property right.
    7.14 Without prior written consent of the other Party, non of the Parties is entitled to transfer any rights or obligations under the Commission / Proposal.
  8. Fees and terms of payment
    8.1 The Commission will set out the total Fee payable and the dates of payment. The Commission may require an estimated of External Services. Any alterations made to a Commission afteragreement may affect the Fee and will be invoiced by FDOS on      
    8.2 FDOS will under no condition pay any supplier from its own resources and is entitled to cancel the services of any such supplier if You have failed to meet payment deadlines.
    8.3 Payments shall be made within thirty days of the date of the (interim) invoice, unless expressly agreed otherwise in writing.
    8.4 FDOS will be entitled to charge commercial interest on late payments. You will be in default without any dunning, summons or notice of default being sent or required. All costs (including but not limited to legal costs) incurred by FDOS for the purpose of collecting any amounts due will be for Your account, such with a minimum of €200,-­ excl. VAT.
    8. 5 The costs quoted in a Proposal and the Commission shall be inclusive of fees of FDOS but exclusive of VAT unless otherwise stated.
    8.6 You will reimburse FDOS for the costs of all External Services and out of pocket expenses incurred in the implementation of the Project.
    8.7 All payments need to be made to a bank account indicated by FDOS.
    8.8 FDOS is allowed to demand a guarantee (for example a parent company) from You for the payments.
    8.9 If You have reason to dispute payment for any item in an invoice You shall notify FDOS within seven days of the date of the invoice and shall work constructively to resolve the dispute. Notwithstanding any such dispute You shall pay the balance of the invoice excluding the disputed costs by the due date.
    8.10 If You fail to notify FDOS of any dispute with an invoice within mentioned seven days, the invoice shall deemed accepted by You.
    8. 11 In the event that You decide to cancel a pitch project (non of the competing parties including FDOS wins the pitch), You shall be obliged to reimburse FDOS for all costs incurred, all amounts advanced and the amount of fees due at that time.
  9. Intellectual property rights
    9.1 You warrant that all Material of You (including Company Identity – material) required for the execution of the the Commission, are not subject to any intellectual property or other rights of third parties or that You have obtained approval from such third  
    9.2 The Intellectual Property and other rights (IP rights) of the Services (including the Work) created and carried out by FDOS during the Commission belong to FDOS and remain to FDOS.
    9.3 FDOS is authorised to establish (related) IP rights and / or to commercially exploit such rights for the purpose of obtaining and maintaining its legal position.
    9.4 FDOS remains authorised to use the Services (9.2) for commercial and non-­ commercial internal use and self-­promotion, even after assignment of the rights (9.6).
    9.5 Licence to use the Services for a Project will be granted on payment of the Fee and fulfilment of the other contractual obligations for the period, media and territory agreed between You and FDOS. You are not entitled to sub-­licence the Services for a Project to any other party, including intra-­company-­parties, without prior written    consent of FDOS.
    9.6 Rights for additional usage of the Services of FDOS may be assigned in writing upon payment of an agreed 'assignment fee’. This applies to all Your subsidiaries and devisions irrespective of geographical location.
    9.7 Without prior written consent of FDOS You are not allowed to make any alterations in the Services / Work created by FDOS related to the Commission.
    9.8 In case You act in default of your contractual obligations FDOS is entitled to suspend or terminate the licence (9.5) to use the Services for a Project. If You continue to use the Services in such event, You are infringing the rights of intellectual property of FDOS (bad faith).
    9.9 In case of filming Services FDOS would be considered as the producer as mentioned in article 45 d of the Dutch Copyright Act (based on the Bener Convention).
  10. Termination / suspension / rescind
    10.1 The agreement between Parties is entered into for an indefinite period or for the duration of the Commission / Proposal and / or completion of the Services / Project.
    10.2 The agreement may be terminated by notice (registered mail) by either party taking into account the notice period agreed or in the event no notice period has been agreed between Parties, taking into account a reasonable period (not less than two months). During the notice period You are obliged to meet your payment and other            obligations towards FDOS.
    10.3 FDOS is authorised to suspend or cease the execution of the Commission in the event You fail to adhere the payment conditions or are in default in providing FDOS the requested guarantee (see 8.8).
    10.4 FDOS is authorised to terminate the agreement between Parties (without serving a default notice) outside of proceedings (court) by annulment] or by notice in the event    that You do not perform your contractual obligations, or do not perform these obligations adequately or in time. In such event You shall be obliged to reimburse   FDOS for all costs incurred, all amounts advanced and the amount of fees due at that time, without prejudice to the right of FDOS to claim damages.
    10.5 Each Party is authorised to rescind the agreement in whole or in part in the event of bankruptcy or a suspension of payment and in the event of cessation or liquidation of the business of the other Party.
    10.6 In case You (company) split-­up, the agreement remains with the materially surviving.
  11. Complaints
    11.1 Complaints, of whatever nature, relating to the performance of any obligation under the agreement entered into by and between the Parties, need to be notified by You to FDOS in writing (a clear description) as soon as possible but ultimately within ten days of the receipt of the (partial) invoice or 10 days after the finalisation of the         Project, as indicated by FDOS. Such on penalty of the lapse of any claim.
    11.2 Complaints concerning invoices of FDOS will not suspend You of the payment
    11.3 After expiration of the time periods mentioned under 11.1 no complaints shall be taken into consideration by FDOS and You will have lost all your rights in respect of such matter, unless the specified time period is deemed to be unreasonable.
    11.4 The notes of FDOS concerning information to the performance shall be conclusive, until You prove the opposite.
  12. Limit of liability / Force majeure
    12.1 FDOS shall not be liable to You or be deemed to be in breach of these conditions for the failure of any matter outside the reasonable control of FDOS. In other words: FDOS is not liable for any error and / or default in the performance of the Services which are caused by any action of You or a third party engaged by You.
    12.2 The liability insurance of FDOS will only be effective in relation to an approved Commission / Proposal. The liability (in case of insurance coverage) has been    expressly limited to the maximum amount that will be paid out by the insurance     
    12.3 All claims resulting from the liability of FDOS will become invalid after the expiration of the period of 6 months from the moment You have become aware or reasonably   had to become aware of the liability causing matter.
    12.4 FDOS will never be liable for any indirect damages (a.o. consequential damages, lost profit) except in the event of gross negligence and / or intention.
    12.5 The liability of FDOS will never exceed the amount of the invoice to You for the performed Services, with a maximum of €[15.000,-­], reduced by any out-­of-­pocket expenses and (advanced) costs and amounts whether or not for the settlement of engaged third parties.
    12.6 FDOS shall provide its Services in a professional manner.
    12.7 FDOS shall be released from its obligation to provide its Services for a Project if a situation beyond reasonable control of FDOS and You occurs resulting in the provision of the Services impossible until the cause of such force majeure is removed and / or resolved.
    12.8 FDOS shall not be liable for and You shall not have any right, claim or cause of action in respect of any delay in the provision of or failure by FDOS to provide the Services resulting from force majeure (amongst others: strike, machine failure, fire, transport disorder, sudden increases in import duties, delay in shipments from    suppliers, the refusal of any required permits or other governmental measures).
  13. Resolution of disputes
    13.1 All agreements governed by these T&C and to all agreements which result from such agreements shall be governed by and constituted in accordance with the laws of the Netherlands.
    13.2 In the event of a dispute between You and FDOS the parties shall meet and use all amicable and constructive means to resolve the dispute which may include an independent third party agreed between You and FDOS acting as mediator.
    13.3 If mentioned dispute cannot be resolved through such discussions the dispute shall be submitted exclusively to the competent courts of the district in which FDOS has its seat. 

TERMS AND CONDITIONS FDOS – supplier / subcontractor

  1. SOW
    The scope of work (purchase order / service agreement / agreement), together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Scope of Work or SOW”), constitutes the entire and exclusive agreement between the First Day of Spring B.V. (“FDOS”) and the supplier / subcontractor (the “Supplier”) identified in the Scope of Work. FDOS’s submission of the SOW is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the SOW, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the SOW. Supplier’s electronic acceptance, acknowledgement of the SOW, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions.
  2. DEFINITIONS
    2.1 “Deliverables” means the deliverables specified in the SOW to be delivered on or before the Delivery Date.
    2.2 “Delivery Date” means the date or dates specified in the SOW by which the Supplier is required to deliver the Work.
    2.3 “Intellectual Property Rights” means all intellectual and industrial property rights and rights of a similar nature including all rights in and to, patents including all issued patents and pending applications therefore and patents which may be issued therefrom (including divisions, reissues, re-examinations, continuations and continuations-in-part); trade-marks; copyrights; neighboring rights; industrial design rights; rights pertaining to trade secrets and confidential information; publicity rights; personality rights; moral rights; and other intellectual property rights whether registered or not and all applications, registrations, renewals and extensions pertaining to the foregoing.
    2.4 “Preexisting Materials” means any Intellectual Property Rights or tangible personal property of Supplier or FDOS created before the date of the SOW or outside the scope of the SOW.
    2.5 “Products” means tangible goods specified in the SOW to be delivered on or before the Delivery Date.
    2.6 “Services” means the services that Supplier is to perform for FDOS specified in the SOW.
    2.7 “Scope of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for FDOS.
    2.8 “Sub(sub)contractor” means a third party performing Work under an agreement (a “Subcontract”) with Supplier / subcontractor.
    2.9 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors and Subcontractors.
    2.10 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work.
    2.11 “Work” means the Deliverables, Products and Services specified in the SOW.
  3. DELIVERY
    3.1 Time is of the essence in Supplier’s performance of its obligations under the SOW. Supplier will immediately notify FDOS if Supplier’s timely performance under the SOW is delayed or is likely to be delayed. FDOS’s acceptance of Supplier’s notice will not constitute FDOS’s waiver of any of Supplier’s obligations.
    3.2 If Supplier delivers Work after the Delivery Date, FDOS may reject such Work.
    3.3 FDOS will hold any Work rejected under the SOW at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges FDOS incurs on Supplier’s behalf.
    3.4 Supplier will preserve, pack, package and handle the Deliverables and Products so as to protect the Deliverables and Products from loss or damage and in accordance with best commercial practices in the absence of any specifications FDOS may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal.
    3.5 Supplier will include with each delivery of Products a packing list identifying the SOW description, a description and the quantity of each of the Products, and the date of shipment.
    3.6 Supplier will deliver all Work to the address set forth in the SOW. Supplier assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss for the Deliverables and Products does not pass to FDOS until acceptance in accordance with Section 6.
  4. OBLIGATIONS FDOS / fees and terms of payment
    FDOS’s obligations are:
    – to provide Supplier with clear briefings and information and to make available to Supplier such information and documents as may be reasonably required to enable Supplier to perform its obligations in accordance with the SOW.
    – to cooperate with Supplier and respond to the proper and reasonable requests of Supplier for any relevant approvals, information, instuction assistance or autorization.
    – to pay Supplier the fees as set out in the SOW.
  1. FEES AND TERMS OF PAYMENT
    5.1. The SOW will set out the total fee payable and the dates of payment. The SOW may require an estimated of External Services. Any alterations made to a SOW after agreement may affect the Fee and will be invoiced by Supplier on approval.
    5.2. Third party (subcontractors of Supplier) fees shall be paid directly by Supplier and are included in Supplier’s fees.
    5.3. Payments shall be made within thirty days of the date of the (interim) invoice, unless expressly agreed otherwise in writing.
    5.5. The fees in the SOW shall be inclusive of fees of Supplier but exclusive of VAT unless otherwise stated.
    5.6. Supplier shall submit valid VAT invoices to FDOS for the fees. A properly prepared invoice must detail the Work performed by Supplier or third parties and shall be accompanied by such supporting documents.
    5.7. All payments need to be made to a bank account indicated by Supplier.
    5.8. Payments will be in EURO’s.
  1. OWNERSHIP AND LICENSE
    6.1 Unless otherwise specified in the SOW and except as provided in Section 6.2, FDOS is the sole and exclusive owner of all Deliverables and Supplier hereby irrevocably assigns and transfers to FDOS all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights.
    6.2 Unless otherwise specified in the SOW, each party owns all right, title, and interest in and to any of its Preexisting Materials. Supplier hereby grants FDOS a perpetual, irrevocable, worldwide, transferable, royalty-free, non-exclusive license, with the right to sublicense and authorize the granting of sublicenses, to use and reproduce Supplier's Preexisting Materials in the Deliverables to the extent necessary for FDOS’s exercise and exploitation of its rights in the Deliverables.
    6.3 Unless otherwise specified in the SOW, Supplier will obtain and assign to FDOS a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all Third Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work. Supplier will deliver copies of the above releases and licenses to FDOS upon FDOS’s request.
  2. INSPECTION AND ACCEPTANCE
    FDOS may reject any or all of the Work which does not conform to the applicable requirements within 10 business days of Supplier’s delivery of the Work. At FDOS’s option, FDOS may (i) return the nonconforming Work to Supplier for a refund or credit; (ii) requires Supplier to replace the non-conforming Work; or (iii) repair the non-conforming Work so that it meets the requirements. FDOS’s payment to Supplier for Work prior to FDOS’s timely rejection of such Work as nonconforming will not be deemed as acceptance by FDOS.
  3. CHANGES
    8.1 As used in this Section 7, “Change” means a change FDOS directs or causes within the general scope of the SOW.
    8.2 FDOS, by written order (“Change SOW”), may make Changes in accordance with this Section 8.
    8.3 If Supplier asserts that FDOS has directed or caused a Change to the cost of or time for performance for which FDOS has not issued a Change SOW, Supplier will promptly notify FDOS in writing of the Change, providing (i) a description of the action or inaction asserted to have caused the Change; (ii) an estimate of the equitable adjustment that would be required for Supplier to perform the Changed Work; and (iii) a date no less than 30 days from the date of notice by which FDOS must respond to Supplier’s notice so that Supplier may proceed with the Work unchanged. FDOS will evaluate Supplier’s notice of Change in good faith, and if FDOS agrees that it has made a constructive change, FDOS will issue a Change SOW to Supplier.
    8.4 Supplier shall, as promptly as practicable, after giving the notice of the Change, or within 10 days of receiving a Change SOW, submit a request for equitable adjustment specifying the adjustment in the price or time for performance resulting from the Change.
    8.5 The parties shall negotiate an amendment to the applicable SOW to incorporate a Change providing for an equitable adjustment to the price, time for performance, or both.
    8.6 Supplier will proceed with the Changed Work as directed, notwithstanding that the parties have not negotiated the amendment to the SOW to incorporate the equitable adjustment.
  4. REPRESENTATIONS AND WARRANTIES
    9.1 Supplier represents and warrants that:
    (i) it has the full power to enter into the SOW and to perform its obligations under the SOW;
    (ii) it has the right and unrestricted ability to assign the Work to FDOS including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors;
    (iii) the Work, and FDOS’s use of the Work, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law;
    (iv) Supplier will not disclose to FDOS, bring onto FDOS's premises, or induce FDOS to use any confidential or proprietary information that belongs to anyone other than FDOS or Supplier which is not covered by a non-disclosure agreement between FDOS and Supplier;
    (v) Software supplied by Supplier does not contain any harmful code;
    (vi) it will not use or disclose any information that may identify an individual ("Personal Data") that is processed for or on behalf of FDOS, except to the extent necessary to perform under the SOW (written consent of FDOS to process Personel Data);
    (vii) where Supplier is processing Personal Data on behalf of FDOS, Supplier declares and warrants:
  • to comply with all relevant data protection law and regulations relating to processing of personal data and privacy, in particular but without limitations the EU Data Protection Directive 95/46/EC, the General Data Protection Regulation (EU) 2016/679 (hereinafter referred to as the “Data Protection Legislation”) in the performance of their respective obligations under this Agreement;
  • to take appropriate technical and organizational security measures against unauthorized or unlawful proceeding of personal data and against accidental loss, destruction of, or damage to such personal data;
  • to only carry out such proceeding for the purposes of providing the services under the Agreement in accordance with the SOW and will at any times act in accordance with all instructions from FDOS;
  • to promptly notify FDOS about:
    (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
    (ii) any accidental or unauthorized access; and
    (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so by FDOS;
  • to deal promptly and properly with all inquiries from the FDOS relating to its processing of personal data;
  • That it will not subcontract any of its processing operations performed on behalf of the FDOS under the SOW without the prior written consent of the FDOS. Where Supplier subcontracts its obligations with the consent of the FDOS, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on Supplier under the present provision. Where the sub-processor fails to fulfill its data protection obligations under such written agreement Supplier shall remain fully liable to the FDOS for the performance of the sub-processor’s obligations under such agreement;
    upon termination or expiration of the SOW, Supplier and the sub-processors shall return to the FDOS all personal data processed on its behalf, or upon the FDOS’ request, shall destroy all personal data and shall prove such destruction to FDOS.
  1. NO PARTNERSHIP OR EMPLOYEE RELATIONSHIP
    10.1  Nothing in the SOW is intended, or shall be construed, to create a partnership, joint venture, or employer-employee relationship between the parties. Except as otherwise expressly stated in the SOW, Supplier has no authority to act on behalf of or to enter into any contract, incur any liability, or make any representation on behalf of FDOS.
    10.2  Except as otherwise expressly stated in the SOW, Supplier will secure all licenses and permits, and supply all tools and equipment, necessary to perform the Services.
    10.3 No Employee Relationship. Supplier will not be entitled to any of the benefits that FDOS may make available to its employees including, but not limited to, group health or life insurance, stock options, profit sharing, or retirement benefits.
    10.4 Supplier’s Obligations Flowing from Payments It Makes. Supplier is solely responsible for all taxes and withholdings, severance and redundancy pay, benefits (including, without limitation, vacation, sick leave, holidays, pension or profit sharing contributions, stock options, etc.), and other similar obligations, whether statutory or otherwise, with respect to payments made by Supplier relating to the performance of all its work and its receipt of fees under the SOW.
    10.5 Indemnification. In addition to any other indemnity obligations, Supplier will defend, indemnify, and hold FDOS harmless from any and all claims made by any person or any entity on account of an alleged failure to satisfy any obligation specified in Sections 9.3 and 9.4
    10.6 Supplier shall use appropriately qualified or experienced staff and personnel. Supplier shall provide FDOS a list of its personnel (mentioning the date of hiring of the employee, the nationality and type and number of the work permit). At FDOS’s direction and for good cause, Supplier will remove any Supplier Personnel or Sub(sub)contractor from performance of Services.
  2. ASSIGNMENT AND SUBCONTRACTING
    11.1 Supplier may not assign any of its rights or delegate any of its obligations under the SOW without FDOS’s prior written consent, which FDOS will not unreasonably withhold.
    11.2 Supplier may not subcontract any of its rights or obligations under the SOW without FDOS’s prior written consent. If FDOS consents to the use of a Sub(sub)contractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify FDOS for all damages and costs of any kind, subject to the limitations in Section 13 (Indemnification), incurred by FDOS or any third party and caused by the acts and omissions of Supplier’s Subcontractors and (iii) make all payments to its Sub(sub)contractors. If Supplier fails to timely pay a Subcontractor for work performed, FDOS will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold FDOS harmless for all damages and costs of any kind, without limitation, incurred by FDOS and caused by Supplier’s failure to pay a Subcontractor.
  3. TERM AND TERMINATION
    12.1 FDOS may terminate the SOW at any time, for no reason or for any reason, upon 15 days written notice to Supplier. Upon receipt of notice of such termination, Supplier will inform FDOS of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and deliver to FDOS whatever Work then exists. FDOS will pay Supplier for all Work performed and accepted through the effective date of the termination, provided that FDOS will not be obligated to pay any more than the payment that would have become due had Supplier completed and FDOS had accepted the Work. FDOS will have no further payment obligation in connection with any termination.
    12.2 Either party may terminate the SOW, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
    12.3 FDOS may immediately terminate the SOW upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.
    12.4 Either party may terminate the SOW, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. In such case FDOS shall have no further payment obligation to Supplier.
    12.5 Any obligations or duties which, by their nature, extend beyond the expiration or termination of the SOW shall survive the expiration or termination of the SOW (for example the obligations concerning confindentiality).
  4. CONFIDENTIAL INFORMATION AND PUBLICITY
    13.1 In the SOW, “Confidential Information” means the terms and conditions of the SOW, the existence of discussions between the parties, any and all documents, software, reports, data, records, forms and other materials obtained by one party (the “Receiving Party”) from the other party (the “Disclosing Party”), or at the request or direction of the Disclosing Party in the course of performing the Services: (i) that have been marked as confidential; (ii) whose confidential nature has been made known by the Disclosing Party to the Receiving Party; or (iii) that due to their character and nature, a reasonable person under like circumstances would treat as confidential.
    13.2 The Receiving Party may use the Confidential Information solely for the purpose of furtherance of the business relationship between the parties, as provided in the SOW and shall not disclose the Confidential Information to any third party, other than to Affiliates and to employees of the Receiving Party and its Affiliates who have a need to have access to and knowledge of the Confidential Information, solely for the purpose authorized above. Each party shall take appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure (non-disclosure agreement).
    13.3 The Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of the SOW; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or analysis of products offered for sale; (vi) is transmitted by a party after receiving written notification from the other party that it does not desire to receive any further Confidential Information; (vii) is disclosed by the Receiving Party pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides (a) prior written notice to the Disclosing Party of such obligation and (b) the opportunity to oppose such disclosure. Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of demand, and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.
    13.4 Supplier shall obtain FDOS’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to FDOS.
  5. INDEMNIFICATION
    14.1 As used in this Section 14, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.
    14.2 Supplier shall defend, indemnify and hold FDOS harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including its Subcontractors) in the performance of the Work; or (ii) any infringement of a third party’s Intellectual Property Rights or any other rights.
    14.3 FDOS shall indemnify and hold Supplier harmless from and against any and all Claims as incurred, arising out of or in connection with: (i) Supplier’s use of FDOS’s products or services in connection with the Work; (ii) Supplier’s use of information or materials provided to Supplier by FDOS; or (iii) infringement a third party’s Intellectual Property Rights or any other rights resulting from Supplier’s adherence to FDOS’s written instructions.
    14.4 Each party will indemnify and hold the other party harmless from and against any and all Claims, as incurred, arising out of any negligent or willful acts or omissions of the Indemnifying Party which results in personal injury (including death) or damage to tangible property (not including lost or damaged data).
    14.5 The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnified Party’s behalf.
    14.6 If a third party enjoins or interferes with FDOS’s use of any Work, then in addition to Supplier’s obligations under Section 13.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit FDOS to continue to use the Work; (ii) replace or modify the Work as necessary to permit FDOS to continue to use of the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to FDOS the amount paid for any Work for which a third party enjoins or interferes with FDOS’s use of the Work.
    14.7 Nothing in this Section shall limit any other remedy of the parties.
  6. LIABILITY
    15.1 Notwithstanding anything else in the sow or otherwise, FDOS will not be liable to Supplier with respect to the subject matter of the sow under any contract, negligence, strict liability or other legal or equitable theory for any amounts in excess in the amount FDOS paid to Supplier in the six months preceding the event or circumstance giving rise to such liability.
    15.2 In no event will FDOS be liable to Supplier for any incidental, indirect, special, consequential damages or loss of profits arising out of, or in connection with, the sow, whether or not fdos was advised of the possibility of such damage.
    15.3 The limitations will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. nothing in the sow limits either party's liability for bodily injury of a person, death, or physical damage to property or any liability which cannot be excluded under applicable law.
  7. FORCE MAJEURE
    Neither party shall be in breach of the SOW nor liable for delay in performing, or failure to perform, any of its obligation under the SOW if such delay or failure results from events, circumstances or causes beyond its reasonable control (including but not limited to wars, floods, strikes). In such cases the parties will meet to decide if the Work shall still be performed.
  8. INSURANCE
    Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect FDOS in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.
  9. COMPLIANCE WITH LAWS
    Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under the SOW. Supplier’s failure to comply with this provision shall constitute a material breach of the SOW.
  10. Resolution of disputes
    19.1. All agreements governed by these T&C and to all agreements which result from such agreements shall be governed by and constituted in accordance with the laws of the Netherlands.
    19.2. In the event of a dispute between Supplier and FDOS the parties shall meet and use all amicable and constructive means to resolve the dispute which may include an independent third party agreed between Supplier and FDOS acting as mediator.
    19.3. If mentioned dispute cannot be resolved through such discussions the dispute shall be submitted exclusively to the competent courts of the district in which FDOS has its seat.
  11. GENERAL
    20.1 Any notice to be given under the SOW will be in writing and addressed to the party at the address stated in the front of the SOW. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.
    20.2 If there is a conflict between or among the SOW and any documents attached to and incorporated by reference, the conflict will be resolved as follows: a conflict between the terms of the SOW and those set forth in an exhibit or hyperlink will be resolved in favor of the SOW.
    20.3 If any court of competent jurisdiction holds that any provision of the SOW is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the SOW will not be affected or impaired, and all remaining terms of the SOW remain in full force and effect, provided that.