Version: 30 January 2019
A. Combined Creatives B.V., a company existing under the laws of the Netherlands, registered at Kazernestraat 7 in Amsterdam, registered in the trade registry at the Dutch Chamber of Commerce under number 73102032 (“On Next”) operates an online platform at onnext.cc (the “Platform”).
B. Through the Platform cultural institutions such as theatres (“Customer”) can book people or companies which offer their services in the creative sector, such as musicians, filmmakers, composers, painters, dancers, photographers, theatre artists, (copy)writers, producers, concept developers, creative strategists, coaches, designers, illustrators, marketeers, web developers and more (“Creatives”), which offer their services on the Platform.
C. On Next does not offer the creative services itself, but only offers the Platform which facilitates the booking of Creatives by Customers. The creative services and payment thereof are to be performed under a separate agreement between User and Customer, in which On Next is not a participating party.
- User Account: the account made by User on the Platform;
- Parties: User, Customer and On Next;
- Subscription: the subscription which allows User to access the Platform in exchange for a subscription fee.
- User: the contracting party of On Next, which can either be a Creative or a Customer;
- On Next is entitled to amend these Terms. The most recent version of the Terms is published on the Platform. User will be notified by email of any upcoming changes in the Terms. Amendments become effective on the date referred to in the relevant publication. Derogations from the Terms will only be valid if explicitly agreed on in writing and laid down in a document signed by On Next.
- The Terms apply to the exclusion of User’s terms or purchase terms, if any; On Next does not accept, now for then, User’s terms being declared applicable or any referral by User to other terms being applicable, whether its own purchase terms or terms applied by a third party.
- On Next is entitled to transfer any rights and obligations under the Terms or a Contract to third parties.
- In the event any of the provisions in the Terms should be void, the other provisions will remain in full force. Parties will then be obliged to consult each other and draft a new provision or provisions to replace any of the provisions that are void and to draft the new provision(s) in such a way that either the purpose and intention of the void provision(s) is retained as much as possible, or the relevant provision is deemed to have retained its validity by conversion.
- User gains access to the content of the Platform via their User Account for the duration of the Subscription.
- User can enter into a Subscription to the platform via their User Account. By entering a Subscription, On Next will give User access to the content of the Platform in exchange for a Subscription fee. If On Next agrees to grant a Subscription, On Next will confirm this to User through the Platform.
- On Next is allowed to revoke a Subscription or block access to a User Account if User does not pay the Subscription fee in accordance with the payment conditions.
- All Subscriptions are automatically renewed for the same period as the initial term, until User or On Next terminates the Contract in accordance with article 13.
4. User Account
- When creating a User Account, User is to provide a name, a valid email address and any other information requested to complete the signup process.
- The creation of a User Account involves On Next collecting personal data provided by User to On Next, which data is needed by On Next to fulfil its obligations under the Terms. The collection of personal data shall at all times be done in accordance with article 10 and the privacy notice available on the Platform.
- User is responsible for all activities that take place in the context of the User Account. The Platform may not be used for any illegal or unauthorized purpose. User is responsible for all information transmitted via the Platform through the User Account.
- On Next is allowed to delete or block access to the User Account at its own discretion.
5. The booking of a Creative
- Creatives who want to offer their services through the Platform, must be logged into their User Account and follow the procedure to upload content as described on the Platform. Creatives have to upload at least a description of the services being offered, along with availability and applicable rates.
- To request a booking of a Creative through the Platform, the Customer must be logged into the User Account and use the applicable steps to request the booking of a Creative.
- On Next operates the Platform as a facilitator to bring together Customers and Creatives. If Customer makes use of the services of a Creative through the platform, On Next is no part of this agreement. Any agreement between any Creative and Customer is strictly at the own risk of the Creative and Customer.
- On Next does not make any representation as to the quality or description of any creative services performed by a Creative.
- On Next is entitled to change the prices for renewals of Subscriptions. On Next will notify User in advance of any upcoming price changes.
- All fees are in euros and exclusive of all taxes, levies, or duties imposed by taxing authorities.
- User is obliged to pay invoices prior to getting access to the content of the Platform. Payment is to take place without any discount or setoff.
- If User fails to meet the payment term, User is in default by operation of law and default interest is due and payable to On Next, which default interest is equal to the level of the statutory commercial interest rate, to be calculated as from the due date.
- User is not entitled to suspend payment obligations towards On Next in connection with possible counterclaims towards On Next or to set these payment obligations off, except if and in so far as these claims and obligations have been explicitly acknowledged by On Next in writing.
- In the event User defaults on the (timely) performance of its obligations, On Next may pass on the claim for collection, in which case User will be obliged to pay, apart from the total amount due, including default interest, all judicial and extrajudicial costs, including the costs charged by external experts. All this does not affect any of the other statutory and contractual rights On Next may have.
7. The Platform
- The Platform is made available by On Next as a remote service. On Next will make reasonable efforts to repair defects in the Platform within a reasonable period of time.
- On Next does not guarantee that the Platform and the content will meet specific requirements, or the Platform and content will be uninterrupted, timely, secure, or error-free. The Platform and all available content is provided to User on an “as is” and “as available” basis without warranty or condition of any kind.
- On Next is entitled to collect (personal) data on the usage of the Platform, for the purpose of improving the Services, in accordance with the privacy notification on the Platform.
- If made available by On Next, User may access the Platform data via an API (Application Program Interface). On Next reserves the right, at any time, to modify or discontinue, temporarily or permanently, with or without notice, access to the API (or any part thereof).
8. Uploading content
- By uploading any data to the Platform, User grants On Next the right to save and host the content. User guarantees that no third party intellectual property rights prohibit uploading the content to the Platform. On Next is neither responsible nor liable in any way for the content made available by Users on the Platform.
- User will defend On Next against any claim, demand, suit or proceedings made or brought against On Next by a third party alleging that the content uploaded by User, or the use of the Platform by User, is in violation of these Terms, infringes or misappropriates the intellectual property rights of that third party or violates applicable law, and will indemnify and hold On Next harmless against any damages finally awarded, and against reasonable attorney’s fees incurred by On Next in connection with any such claim, demand, suit or proceedings, provided always that On Next
- promptly gives User written notice of the claim, demand, suit or proceedings;
- gives User sole control of the defence and settlement of the claim, demand, suit or proceedings (provided that User does not settle any claim, demand, suit or proceedings unless the settlement unconditionally releases On Next of all liability); and
- provides User all reasonable assistance, at User’s expense.
- On Next has the right to refuse or remove content that is a breach to the On Next Terms and regulations.
9. Intellectual property
- All intellectual rights and intellectual property rights that may or will be exercised – wherever and whenever – with respect to the Platform, are exclusively vested or will be exclusively vested in On Next, its licensors or suppliers.
- User is not allowed to:
- modify, adapt, create derivative works from or translate any part of the Platform,
- reverse engineer, decompile or disassemble the Platform or otherwise attempt to obtain their source codes,
- remove or alter any copyright, trademark or other proprietary notice contained in the Platform,
- use the Platform in any manner not set forth in these Terms.
- User may specifically not duplicate, copy, or reuse any portion of the Platform, visual design elements or concepts without On Next’s explicit permission in writing.
- Terms such as “processing”, “personal data”, “controller” and “processor” shall have the meaning ascribed to them in applicable national implementation of the Data Protection Directive (1995/46/EC) or – as of 25 May 2018 - the General Data Protection Regulation (2016/679/EU, both hereinafter: the “Data Protection Laws”).
- Notwithstanding anything contained herein to the contrary, the parties agree that this clause shall apply only if and to the extent that On Next is processing any personal data on behalf of Customer (“Personal Data").
- On Next collects Personal Data in accordance with the privacy notification on the Platform.
- On Next will act as the processor and User will act as the controller.
- On Next shall;
- only carry out processing of any Personal Data on User’s instructions and to the extent necessary to provide its services. On Next will immediately inform User (i) if, in its opinion, an instruction infringes Data Protection Laws, or (ii) if On Next is required under applicable law to process the Personal Data, unless that law prohibits On Next from notifying User.
- implement appropriate technical and organisational measures to ensure a level of security of the Personal Data against loss and unlawful processing, appropriate to the risk, including remedial action in the event of a breach as meant under 7.
- only engage a sub-processor and/or in transfers of Personal Data to a country outside of the European Economic Area without an adequate level of protection with prior written approval from User and subject to a written agreement as required by Data Protection Laws.
- ensure that all its employees, agents and/or sub-processors engaged in processing Personal Data have signed a confidentiality agreement and/or are under any other binding obligation of confidentiality.
- submit to a data security audit when reasonably requested by User and at any time if any regulator of User requests or requires an audit of User and/or any of its service providers.
- where appropriate, assist User with the fulfilment of obligations, such as responding to requests to exercise data subject rights, data protection impact assessments and prior consultation with supervisory authorities.
- inform User within 24 hours of (i) a (suspected) breach of security and/or confidentiality leading to the loss or unlawful processing of Personal Data, (ii) an inquiry, subpoena or request for audit from a competent authority, or (iii) a seizure.
- delete or return all the Personal Data to User after the end of the provision of services relating to the processing, unless a legal obligation exists to store the Personal Data.
- make available to User all information and documentation requested by User to demonstrate its compliance with Data Protection Laws.
- At User’s reasonable request, On Next shall enter into a separate data processing agreement in a format satisfactory to both parties.
- On Next’s total liability for an attributable failure to meet its obligations under the Terms, or on any other legal basis, explicitly including every failure to meet guarantee commitments and indemnity obligations agreed on with User, is limited to the compensation of direct damage to the maximum of the aggregate amount of fees (exclusive of VAT) User has paid to On Next under the Terms for the past year. On Next’s total liability for damages, or on whatever legal basis, will never exceed €10,000 (ten thousand euros).
- On Next is not liable for indirect damages such as consequential damages, lost profits, missed savings, damage to goodwill, damage as a result of business interruptions, damage arising from claims filed by User’s customers, damage related to the use of third party property. On Next is not liable either for any modification, suspension or discontinuance of the Platform.
- The exemptions and restrictions of liability referred to in articles 10.1 and 10.2 do not affect any of the other exemptions and restrictions of Parties’ liability laid down in these Terms.
- The exemptions and restrictions of liability referred to in the articles 10.1 to 10.3 do not apply if and in so far as the damage results from intent or deliberate recklessness on the side of On Next.
- Unless performance is permanently impossible for a Party, liability of that Party for the imputable failure to meet its obligations under the Terms only arises if the other Party immediately serves that Party a notice of default, in which a reasonable term is set for that Party to remedy the failure and the Party who has failed to meet its obligations continues doing so even after the deadline. The default notice is to contain a detailed description of the failure so that the Party that has failed to meet its obligations can respond adequately.
- Any right to compensation of damages is conditional on the Party’s notifying the other Party in writing of the damage as soon as reasonably possible after it has been noticed. Any claim for compensation of damages lapses by the mere expiry of a period of two (2) months after the claim has arisen, unless the Party in question has instituted legal action for compensation of the damages suffered before the lapse of that period.
12. Force Majeure
- Neither Party is obliged to meet any of its obligations, including any statutory and/or contractual guarantee commitments, if it is prevented from doing so as a result of circumstances beyond its control. Circumstances beyond On Next’s control are understood to mean, amongst other things:
- circumstances beyond On Next’s suppliers’ control,
- suppliers that User advised On Next to use not properly meeting their obligations,
- the defective condition of items, hardware, software or material of third parties which User advised On Next to use,
- government measures,
- electricity failures,
- failures of internet, data network or telecommunication facilities,
- war, and
- general transportation problems.
- If a force majeure event lasts for more than sixty (60) days, each Party will be entitled to terminate (ontbinden) the Contract in writing. Everything that has already been performed under the Contract will then be settled proportionally, without anything being payable by either Party to the other Party in any other respect. For the period of sixty (60) days referred to, performance of the obligations affected by the force majeure event will be suspended, but the Contract entered into between Parties will remain in effect as much as possible.
- User can terminate (opzeggen) a Subscription through the platform. If the notice is received by On Next at least thirty (30) days before the end of the term, , the termination will take effect at the end of the current subscription term and User will not be charged for the next term. If the notice is received by On Next less than thirty (30) days before the end of the term, the Subscription will automatically be renewed for another term. The Subscription will then be terminated at the end date of the renewal term.
- On Next has the right to suspend the use of the Platform and refuse all current or future use of the Platform for User’s failure to meet its obligations under the Terms. Such suspension or termination will result in the deactivation or deletion of the User Account or the access to the User Account.
- Either party is only entitled to terminate (ontbinden) the Contract because of the other party's failure to meet its obligations under that Contract if the other party imputably fails to meet essential obligations under the Contract and after having been served a notice of default, by email and as detailed as possible, in which notice a reasonable period of time is set for the other party to remedy the failure.
- Either Party may terminate a Contract by serving written notice of termination (opzeggen), without a notice of default, either in full or in part, with immediate effect if the other Party is granted suspension of payments – either provisionally or not – if a petition is filed for the other Party’s liquidation or a liquidation order is given, if the other Party’s enterprise is liquidated (faillissement) or terminated other than for the purpose of a reconstruction or of a merger of enterprises. Parties will never be obliged to refund any money received or to compensate damages because of termination as referred to in the present paragraph. In the event User’s estate is being liquidated, User’s right to use the software, websites and so on made available and User’s right to access and/or use the Products and Services delivered by On Next end without On Next having to perform any act to terminate (opzeggen) the Contract.
- Any provisions in these Terms and in a Contract that are meant to survive the termination of the Contract, will remain in effect after the termination – such as provisions on liability, intellectual property rights and the dispute settlement rules.
14. Applicable law and disputes
- These Terms and and/or any additional agreements arising from them between On Next and User are exclusively governed and interpreted by the laws of the Netherlands.
- All disputes shall be subject to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.