GENERAL PURCHASE CONDITIONS OF INSOMNIAC EUROPE B.V.

1                APPLICABILITY

1.1          Unless otherwise expressly agreed by the parties in writing, these General Purchase Conditions are applicable to all enquiries and offers by third parties (hereinafter: “the supplier”) to Insomniac Europe B.V. (hereinafter: “Insomniac”), and all instructions to and agreements and contracts with the supplier relating to the purchase, lease, rent or loan (for use) of goods or provision of services from the supplier.

1.2          General terms and conditions of the supplier are hereby expressly excluded, unless Insomniac has expressly accepted these terms in writing. In the latter case the validity and applicability of the General Purchase Conditions of Insomniac will not be affected. 1.3 Insomniac is at all times authorized to unilaterally alter these General Purchase Conditions.

2               OFFERS, PURCHASE ORDERS AND THE CONCLUSION OF CONTRACTS

2.1          All offers of the supplier shall be made in writing and will remain valid and binding for a minimum period of one (1) week after reception by Insomniac of the said offer.

2.2          Any costs incurred with respect to the drafting of offers are borne by the supplier.

2.3          A binding contract shall be formed when Insomniac has expressly given a written instruction to the supplier or has accepted a purchase offer in writing, followed by a written confirmation of the supplier. Notwithstanding the foregoing, Insomniac is authorized, at its discretion, to give the supplier an oral instruction.

2.4          Alternations in the confirmation of the supplier will only lead to a binding contract after Insomniac has expressly accepted the alterations in writing. Payments made and the receipt of goods or services by Insomniac does not imply approval of the said alterations.

3               INFORMATION PROVISION

3.1          The supplier is obliged to immediately and fully provide Insomniac with (i) all requested data, information and documentation and (ii) all other data, information and documentation that may be relevant to assess any offer by the supplier or may be relevant to prepare or execute a contract. Insomniac will assess the supplier’s offer based on the said information and may decide to enter into a contract with supplier. If, after the formation of an contract, the data, information and/or documents supplied by the other party prove to be incomplete or incorrect, the other party will be in default ipso jure and Insomniac will be entitled – at its own discretion – to dissolve the agreement with immediate effect and without judicial intervention, or to terminate or suspend its own obligations, without Insomniac being obliged to compensate the other party for any damage or otherwise.

4               PERFORMANCE

4.1          Delivery shall be made ‘Delivery Duty Paid’, following the most recent Incoterms® rules. All goods shall be delivered, and all services shall be performed by supplier no later than at the agreed date and time and at the agreed place within the agreed term. If supplier fails to deliver or perform as contracted, than supplier shall be in default de jure and shall be liable for all damages resulting from the default.

4.2          Insomniac is never obliged to inspect delivered goods upon reception or first operation.

4.3          In case Insomniac purchases goods from the supplier, the full and unencumbered ownership rights of the goods shall be transferred to Insomniac upon delivery.

5                PERMITS, STANDARDS, GUIDELINES AND DIRECTIONS

5.1          The supplier warrants that the supplier and all goods and services provided by supplier to Insomniac comply with all (governmental) requirements, standards and guidelines.

5.2          If the services of the supplier consist of designing, building, supplying, hiring/renting out or otherwise making use of tents and/or other temporary covers and roofs, supplier warrants to Insomniac that – without prejudice to article 5.1 –supplier shall fully comply with the Conditions for Tents that have been handed to supplier. As far as the services of the supplier consist of designing, building, supplying, hiring/renting out or otherwise making use of temporary constructions (not being tents and/or other covers and roofs), supplier warrants to Insomniac that – without prejudice to article 5.1 – supplier shall fully comply with the Conditions for Temporary Constructions that have been handed to supplier.

5.3          The supplier warrants to Insomniac that it has obtained all permits that are necessary for the execution of the contract. The supplier shall, if so requested, immediately submit to Insomniac for inspection all said permits (and attached regulations) or copies thereof.

5.4          The supplier fully indemnifies Insomniac against all governmental penalties or fines and all damages suffered as a result of supplier ‘s incorrect or noncompliance with any law, permit regulation or any other governmental requirement, restriction, standard or guideline.

5.5         The supplier is obligated vis-à-vis Insomniac to immediately follow all reasonable directions of Insomniac in connection with the performance of the agreement, GENERAL PURCHASE CONDITIONS including directions and regulations as referred to in article 5.2. Insomniac is entitled to designate so-called preferred suppliers that the other party shall use/hire in the supply of products or services to Insomniac.

5.6          The supplier warrants to Insomniac that – without prejudice to article 5.1 – the supplier and all its personnel or any other by the supplier hired contractor shall at all times act according to and comply with all obligations arising from the applicable law and regulations, including but not limited to the Working Conditions Act (Arbowet), the Working Hours Act (Arbeidstijdenwet), the Aliens Employment Act (Wet arbeid vreemdelingen (Wav)), the Compulsory Identification Act (Wet op de Identificatieplicht (WID)) and industry specific regulations and guidelines. The supplier guarantees that all taxes and/or premiums regarding the employed or provided personnel are completely fulfilled and the supplier indemnifies Insomniac against all claims. Insomniac will never be regarded the employer or the commissioning authority of any and all personnel or contractors of the supplier.

5.7          The supplier is fully liable for and fully indemnifies Insomniac against all penalties and/or fines following any breach found by The Netherlands Labour Authority (Nederlandse Arbeidsinspectie) or any other authority. Penalties and fines will immediately be charged on to the supplier.

5.8          The supplier is obliged to immediately comply with all reasonable directions from Insomniac in relation to supplier’s performance under the contract.

6               WARRANTY, MAINTENANCE

6.1          The supplier warrants that all goods and services provided by supplier to Insomniac are free of defects and errors and suitable for the intended use by Insomniac, and the supplier is liable towards Insomniac for all direct and indirect damages that are a result of such defects. Notwithstanding any other right of Insomniac, the supplier shall upon Insomniac’s first request immediately repair any defect and Insomniac shall be entitled to suspend its contractual obligations until the repair is completed.

6.2          The supplier fully indemnifies Insomniac of any and all claims of third parties that are a direct or indirect result of any defect to the goods or services provided by supplier. The supplier also fully indemnifies Insomniac of all claims of third parties who claim to have any title or interest in goods or services provided by the supplier. The supplier warrants that Insomniac can make use of the goods and services without any limitation or restriction.

6.3          The supplier shall, upon Insomniac’s first request, perform maintenance on the goods delivered, to the extent, during the term and at a fee, as is customary in the relevant industry, or based on an agreement concluded between the supplier and Insomniac for this purpose.

7               LIABILITY

7.1          The supplier is well-informed about the industry specific working conditions, including the conditions specific to (outdoor) festival terrains and large or vast production locations, and takes this and the therewith related risks of loss, damage or theft of goods into account when executing the contract. The supplier shall take out adequate insurance against these risks.

7.2          The supplier is liable and responsible for (theft, damage and loss of) items, including damage inflicted by visitors, artists or other suppliers present at Insomniac’s event, until such items have been sold and delivered to Insomniac by the other party or leased and made available and accepted by Insomniac.

7.3          Insomniac is liable only for direct damage as a result of theft, damage and loss of items that are leased by Insomniac or have been taken on loan from the supplier, if they have been made available to Insomniac by the supplier, and if the damage is the direct result of an error on the part of Insomniac that can in no way be attributed to the supplier. Beyond this, Insomniac is only liable for damage that is the result of intentional or deliberately reckless acts by (the managers of) Insomniac. This does not include intentional or deliberately reckless acts by subordinates or auxiliary persons of Insomniac.

7.4          Insomniac is not liable to the supplier for any damage resulting from a force majeure situation as mentioned in article 10.

7.5          Insofar as Insomniac may be liable to the supplier on any grounds whatsoever for the loss directly suffered by the supplier, such liability shall always be limited to the lowest value of (i) the invoice for the agreed performance or (ii) the amount that would be paid out under Insomniac’s legal liability insurance.

7.6          ‘loss directly suffered’ as referred to in this article 7 means exclusively: (i) the reasonable costs that the supplier would have to incur to make Insomniac’s performance conform to the agreement. This damage, however, shall not be compensated if the supplier has dissolved the agreement; (ii) reasonable costs incurred to determine the cause and extent of the damage, to the extent that such determination relates to direct damage as defined in these conditions; (iii) reasonable costs incurred to prevent or limit damage, to the extent that the supplier demonstrates that these costs led to a limitation of the direct GENERAL PURCHASE CONDITIONS damage within the meaning of these terms and conditions.

7.7          Insomniac shall never be liable for any damage indirectly suffered by the supplier, including consequential damage, loss of profit, lost savings and damage due to business interruption, except for damage that is the result of intentional or deliberately reckless actions by (the managers of) Insomniac. This does not include intentional or knowingly reckless acts by subordinates or auxiliary persons of Insomniac.

7.8          The supplier shall be liable for any damages from whatever cause of, or in relation to (the construction and deconstruction of) the event to which the supplier’s performance relates, caused by employees of the supplier, third parties engaged by the supplier, or the supplier’s goods to: (i) visitors of the event, employees or Insomniac’s or third parties’ objects or property; and (ii) the location (and accessories) of the event and all objects present at the location in relation to the event. The supplier is obliged to take out an adequate (liability) insurance against the said damages. The supplier shall, if so requested, provide Insomniac with a copy of the relevant insurance policy.

7.9          The supplier shall indemnify Insomniac against all claims of third parties in relation to damages for which the supplier is liable pursuant to the above.

7.10       Insomniac’s information and administration shall be decisive regarding claims of any of the parties in relation to the agreement or the performance of the supplier, except for when the supplier provides indisputable evidence to the contrary.

8               TRANSFER, ALTERATIONS AND ADDITIONAL WORK

8.1          The supplier is not permitted to transfer any of its obligations under the contract to a third party without the prior written consent of Insomniac.

8.2          In the event that the supplier contracts out any of its obligations under the contract, the supplier remains liable towards Insomniac for the adequate performance of its obligations under the contract.

8.3          Alterations in the performance, price and/or additional work require prior written approval by Insomniac.

9               PAYMENT

9.1          Unless expressly agreed otherwise in writing, payments shall be first due by Insomniac within 30 days after correct receipt of the invoice of the supplier, under the condition of correct and complete delivery of goods and proper performance of contracted services by the supplier.

9.2          Every invoice must comply with the legal requirements, regarding, inter alia, sales taxes. Insomniac has the right to refuse an invoice if such legal requirements are not met.

9.3          The supplier waives the right to set off any debt to Insomniac or to demand suspension. Insomniac is entitled to set off any claim that it has against the supplier or its affiliated parties, for whatever reason, against any debt of Insomniac or its affiliated parties, for whatever reason, against the supplier.

10            FORCE MAJEURE

10.1       Insomniac shall not be obliged vis-à-vis the supplier to take delivery of the performance stipulated by the supplier, nor shall it be obliged to fulfil its obligations in any other respect, in the event of force majeure on the part of Insomniac. This is either way the case in one or more of the following circumstances: incapacity for work (including illness) of, or failure to comply with the obligations on the part of Insomniac, the failure of the artist(s) to comply with their obligations, the failure of (other) counterparties of Insomniac to comply with their obligations, government measures, transport difficulties, fire, strike, work stoppage, epidemic, closure of the event location, unreachability or inaccessibility of the venue of the event, riots, war conditions or (threat of) a terrorist attack, national mourning as a result of the death of a member of the royal house or government, extreme weather conditions and all other circumstances beyond Insomniac’s control.

10.2       In the event of force majeure, Insomniac shall be entitled to dissolve, terminate or suspend the agreement with immediate effect and without judicial intervention, without Insomniac being liable to the other party for compensation for damages or otherwise. If and insofar as Insomniac has already made a deposit to the supplier, the supplier shall reimburse such deposit to Insomniac, unless the payment regards an already completed performance by the supplier.

10.3       The supplier shall only be entitled to invoke force majeure on its side when it fails to perform its contractual obligations and the supplier is not accountable for such fault, neither by law, nor by these general purchase conditions nor according to generally accepted standards. Parties explicitly exclude the following circumstances from force majeure on the side of the supplier:

• the failure to perform (timely) caused by any other supplier or third party of the supplier; • shortage of personnel, strike, sickness absence, production failure or fire at the supplier’s company; • unsuitableness of or a defect to any device or (transportation)equipment or other object used by the supplier for the performance of the contract; GENERAL PURCHASE CONDITIONS • (mis)conduct of persons deployed by the supplier for the performance of the contract; • transport difficulties, traffic jams or delay of transportation chosen by the supplier; • loss of or damages to materials during transportation by or on behalf of the supplier; • governmental restrictions, including import and export restrictions regarding the goods to be delivered by the supplier; • incompliance of the supplier with any governmental regulations, permit requirements, standards, or any other guidelines.

10.4       If the supplier invokes force majeure against Insomniac on any grounds whatsoever, rightly or wrongly, Insomniac shall be entitled to dissolve, terminate or suspend the agreement with immediate effect and without judicial intervention, without Insomniac being liable to the supplier for damages or otherwise. If Insomniac has already made any payments to the supplier, the supplier will refund these payments, even if the said payments have been made for any performance already provided.

10.5       Notwithstanding the provisions of articles 10.1 to 10.4, in the event that: (a) an event is not insurable against COVID-19 or any other pandemic (“a Pandemic”) – whereby the question of whether something is insurable is to be answered at the time Insomniac takes out insurance under normal circumstances – (b) there is no government (subsidy) scheme for which the event is eligible, and (c): (i) the event cannot take place due to government-imposed measures directly related to a Pandemic; ii. the event is part of a tour of an artist and that tour is cancelled in whole or in part by (or on behalf of) the artist as a direct consequence of a Pandemic, as a result of which the event cannot take place; or iii. the government imposes restrictive measures (including capacity restrictions) directly related to a Pandemic as a result of which it is demonstrably not feasible (financially) for Insomniac to organize the event, taking these restrictive measures into account, then the parties will enter into consultation to reschedule the performance (possibly under modified conditions). If it is not possible to reschedule the event within eighteen (18) months of the original date, then the parties shall not be required to fulfil any obligation under the agreement and the parties shall be responsible for their own costs, unless otherwise agreed in writing. If, contrary to the provisions of sub b, a (subsidy) scheme does apply from the government (such as the SEG or any similar or successor scheme), Insomniac shall make every effort to have the costs of the performance of the supplier reimbursed by the government and shall pay the amount paid by the government in full to the supplier. If requested, the supplier shall support and provide Insomniac with all necessary documentation and information for making such a claim.

11             INTELLECTUAL PROPERTY RIGHTS

11.1       The names and logos used by Insomniac (including, but not limited to, the name and logo INSOMNIAC) are protected trade names, trademarks and copyrighted works. The supplier is not permitted to use that which is subject to Insomniac’s intellectual property rights (including use as reference) except with Insomniac’s prior written consent.

11.2       Should there be any object of the creation of copyright, trademark right or other intellectual property right as a result of the performance of the agreement, this is assumed to be included in the remuneration agreed upon by the parties and the full intellectual property right to and interest in it is deemed to be transferred by the supplier to Insomniac as the rightful owner, or the full intellectual property rights are transferred by the supplier to Insomniac in advance, which transfer is accepted by Insomniac immediately after the creation of those rights. If transfer is not possible, the supplier grants Insomniac an unrestricted, exclusive, perpetual license for the use of the aforesaid rights (including and (future) methods of exploitation). for which the fee is assumed to be included in the fee agreed upon by the parties. Insomniac shall determine at its sole discretion in what manner and to what extent it shall make use of said license. For both any transfer and licensing, the fee is assumed to be included in the fee agreed upon by the parties for the assignment given by Insomniac to the supplier.

11.3       The supplier herewith grants Insomniac a costless perpetual license regarding the existing intellectual property rights on all delivered and provided goods and/or services. The supplier warrants that all delivered and provided goods and/or services do not infringe any intellectual property right of any third party and indemnifies Insomniac against all claims of third parties in this regard.

11.4       If the transfer or licensing of any (intellectual property) rights, as in Article 11.2 and 11.3, require any assistance of the supplier or further formalities, legal instrument or document, the supplier hereby grants Insomniac an irrevocable authorization to have any deeds passed or executed in name of the supplier, including but not limited to an exclusive license deed, the supplier shall render such assistance, in the absence of which supplier will forfeit an GENERAL PURCHASE CONDITIONS immediate penalty of € 10.000 (ten thousand Euros).

12            CAMERA SURVEILLANCE

12.1       On/in the event locations camera surveillance can be used to monitor and secure persons, goods, information, buildings, grounds, business and (production) processes present. The cameras record image and sound and presence in/on/in and around the venue 24 hours a day. Signs indicate that cameras are being used. For more information on how Insomniac handles the processing of personal data in relation to camera surveillance, Insomniac refers to Insomniac’s privacy statement, which can be found at https://festival.astateoftrance.com/privacy-policy/.

13            CONFIDENTIALITY

13.1       Each party shall maintain total secrecy with respect to all confidential information and documents provided by the other party.

 

 

14            DEFAULT

14.1       Insomniac shall first be in default when it does not comply with a written notice of default by the supplier, which notice shall contain a reasonable term for compliance of no less than fourteen (14) days.

15            PARTIAL INVALIDITY

15.1       The invalidity or unenforceability of individual provisions of these General Purchase Conditions shall not affect the validity of the remaining provisions.

16            INTERMEDIATE TERMINATION OF THE CONTRACT

16.1       Each party to the contract is entitled to terminate, cancel or suspend the agreement, with immediate effect and without judicial intervention, without being liable to the other party for damages or otherwise, if: a. the other party is in default of any of its obligations under the contract; b. the other party applies for suspension of payment; c. the other party has filed for bankruptcy or is declared bankrupt; d. the other party is placed under guardianship or dies; e. the legal entity or other legal form of a party is dissolved, or if the business of a party ceases all or part of its activities or transfers it to a third party.

17            TRANSGRESSIVE BEHAVIOR

17.1       The supplier shall make every effort to prevent and combat undesirable and/or transgressive behavior by its subordinates and third parties engaged, whether or not by pursuing an active policy and applying codes of conduct.

18            APPLICABLE LAW AND COMPETENT COURT

18.1       All contracts between Insomniac and supplier shall be governed exclusively by Dutch Law.

18.2       All disputes between parties in relation to the contract shall be exclusively settled by the competent court in Amsterdam.

18.3       In case of differences in the interpretation of the Dutch and English text of these general conditions, the Dutch text will prevail.

Version August 2024