General Terms and Conditions Plenbright B.V.
GENERAL SECTION
1 DEFINITIONS
1.1 The following definitions apply to the terms used below in these General Terms and Conditions (hereinafter referred to as the “Terms”). These will be displayed with a capital letter. The definitions apply to both singular and plural terms.
IP Rights: All intellectual property rights and related rights, including but not limited to copyrights, patent rights, trademark rights, (model) rights, trade name rights, database rights, as well as rights to know-how;
Client: The natural and/or legal person who has concluded or is still entering into an Agreement with the Contractor;
Contractor: Plenbright BV, trading under the name Plenbright, which has declared these Terms and Conditions applicable;
Agreement: The agreement as concluded between the Contractor and the Client regarding the delivery of the agreed Performance;
Parties: Contractor and Client;
Personal data: Any data relating to an identified or identifiable natural person, as referred to in Article 1 sub a. Performance: The services, work, products to be delivered by the Contractor to the Client under the Agreement, including, if applicable, the associated results of Performance and /or activities. All this in the broadest sense of the word;
Section: Part of these Terms and Conditions with specific provisions with regard to a specific Performance to be delivered;
Conditions: These general terms and conditions of the Contractor including all applicable Section(s).
2 GENERAL
2.1 These Terms and Conditions apply to all offers and quotations from the Contractor, Agreements and all other related legal relationships between the Contractor and the Client. Specific Sections also apply depending on the specific Performance delivered by the Contractor. In the event that this general part of the Terms and Conditions conflicts or is incompatible in any part with the provisions of the Section applicable between the Contractor and the Client, the provisions of the relevant Section(s) will prevail.
2.2 When these Terms and Conditions indicate that an action must be done in writing, this also means communication by e-mail.
2.3 Deviations from these Terms and Conditions are only valid if agreed in writing between the Contractor and the Client. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is hereby explicitly excluded by the parties.
2.4 Conditions used by the Client are not applicable and are hereby explicitly excluded.
2.5 Once these Terms and Conditions have applied between the parties, the Client is deemed to have agreed in advance to the applicability of these Terms and Conditions for future agreements.
2.5 If a provision in these Terms and Conditions is declared null and void or annulled, all other provisions will remain in full force and effect. The parties will then determine a new provision in consultation to replace the void/nullified provision. This in such a way that the new provision approximates the scope of the old provision as much as possible.
2.6 In the event of a conflict between a provision in an Agreement and a provision in these Terms and Conditions, the provision in the Agreement shall prevail. In the event of a conflict between a provision in the general part of these Terms and Conditions and a provision in a specific Section, the provision in that specific Section shall prevail.
2.7 The Contractor is always entitled to change these Conditions at any time. The Client will be informed of this immediately in writing. An amendment to the General Terms and Conditions does not provide grounds for the Client to terminate an existing Agreement.
3 QUOTE AND FORMATION OF AGREEMENT
3.1 Quotations and other offers from the Contractor are always without obligation, unless the Contractor expressly indicates otherwise in writing.
3.2 Offers and quotations are valid for four (4) weeks after date, unless expressly stated otherwise in writing.
3.3 The Client guarantees the accuracy and completeness of all information provided by or on behalf of the Client on which the Contractor bases its offer. If this information proves to be incorrect or complete, the Contractor may change the offer. Any additional costs resulting from this will then be at the expense and risk of the Client.
3.4 An Agreement is concluded by written confirmation by the Client of the quotation and/or offer. This is insofar as it concerns a complete acceptance without changes.
3.5 Assignments once placed by the Client are irrevocable.
3.6 The contractor is always entitled to terminate negotiations without giving any reasons. This without being liable for damages.
4 EXECUTION OF THE AGREEMENT AND DELIVERY
4.1 The Contractor will execute the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship, based on the state of science and technology known at that time. The Agreement is a best efforts obligation.
4.2 The parties determine in the Agreement the delivery period as well as the place and manner in which the agreed Performance will be delivered. Agreed delivery times do not apply as deadlines. In the event of a (threatening) exceeding of a term, the Parties will enter into consultation in order to discuss any necessary measures. If a delivery period is exceeded, the contractor is never liable for damages, unless expressly agreed otherwise in writing.
4.3 If the parties have agreed on a phased implementation of the Agreement, the Contractor is permitted to postpone the implementation of the Performance of a subsequent phase until the Client has approved the results of the previous phase in writing.
4.4 The Contractor is never obliged to follow instructions that change the nature, content or scope of the agreed Performance; If such instructions are followed, the relevant work will be regarded as additional work and will be reimbursed in accordance with the usual rates of the Contractor and the Contractor will report this to the Client.
4.5 The Contractor is permitted to have the Agreement executed in whole or in part by one or more third parties and/or to be assisted by third parties in the execution of the Agreement.
4.6 Performances will be considered accepted if the Client has not objected in writing to the Services delivered within five (5) working days after delivery of the Services. If the objection is well-founded, the Contractor must still deliver the Performance properly within a reasonable period, with a maximum period of 30 days being reasonable.
5 PRICES AND PAYMENT TERMS
5.1 All mentioned fees are exclusive of turnover tax (VAT) and any other levies imposed by the government.
5.2 Activities that are not mentioned in the quotation are not covered by the Agreement.
5.3 Unless expressly agreed otherwise in writing, price indications, estimates, budgets and/or preliminary calculations of the Contractor are only indicative in nature. No rights can therefore be derived from this. Only if agreed will the Contractor inform the Client when a budget is exceeded.
5.4 All fees shown by the Contractor are subject to typographical errors or typos. The contractor is then not liable for these reimbursements.
5.5 Invoices are paid by the Client in accordance with the payment conditions stated on the invoice. In the absence of a specific payment term stated in the Agreement, a payment term of 14 days applies. The Client is not permitted to offset any counterclaim against a payment or to suspend payment due to a counterclaim or otherwise.
5.6 If the Client does not pay an amount due on time, the Client will be in default without any reminder or notice of default being required and will owe statutory commercial interest on the outstanding amount. If the Client fails to pay the claim after a reminder, the Contractor can outsource the claim. In that case, in addition to the principal amount owed, the Client is also obliged to compensate all judicial and extrajudicial costs that may then arise. The extrajudicial costs are set at 15% of the outstanding principal amount, with a minimum of € 250.00.
5.8 The Contractor has the right to suspend its obligations as long as the Client does not meet its payment obligations.
5.9 During the term of an Agreement, the Contractor is entitled to index the prices for its Services in accordance with the price index figure of the previous calendar year, as published by Statistics Netherlands. In addition, the Contractor is entitled to increase prices if the cost price has increased. This is in line with this cost increase. An increase on the basis of the foregoing does not constitute grounds for termination for the Client.
5.10 Complaints on invoices must be received by the contractor within ten (10) days after the invoice date, failing which the invoice will be deemed accepted. Any complaints do not suspend the obligation to pay.
5.11 The Contractor is entitled to send advance invoices and/or interim invoices or to require further security from the Client. The Client will immediately comply with a request as mentioned above.
5.12 In the event that the Client’s financial position changes negatively, the Client may refrain from further performance of the Agreement. This is unless the Client provides proper security to the Contractor. The contractor may then also change the previously agreed payment terms.
6 CHANGE OF AN ASSIGNMENT AND ADDITIONAL WORK
6.1 The Client accepts that the agreed delivery period may change if the scope of the Agreement is changed in the meantime. If an interim change affects the agreed compensation, the Contractor will report this as soon as possible.
6.2 If additional work has to be carried out (additional work) on the basis of an amendment to the Agreement as a result of a request from the Client, this work will be charged to the Client on the basis of subsequent calculation using the usual rates at that time. This unless expressly agreed otherwise in writing.
7 OBLIGATIONS ON THE PART OF THE CLIENT
7.1 The Client ensures that all data and/or information of any nature are provided to the Contractor in a timely manner and will provide all cooperation requested by the Contractor. Quotations from the Contractor and therefore also the resulting Agreements are based on the information provided by the Client. The contractor is not liable for any damage caused by incorrect and/or incomplete data and information provided.
7.2 If the information required by the Contractor is not provided in a timely manner, the Contractor has the right to suspend the execution of the Agreement. Any costs resulting from this will then be at the expense and risk of the Client.
7.3 To the extent that user names and/or passwords are provided by the Contractor to the Client in the context of the Agreement, the Client is fully responsible for these user names and/or passwords. The Client is solely liable for any misuse of the usernames and passwords. The Client is not permitted to provide the aforementioned usernames and/or passwords to third parties.
8 (IMMEDIATE) TERMINATION
8.1 An Agreement ends by operation of law on the date agreed between the Parties or when the provision of the Services has been completed.
8.2 The Contractor is entitled to terminate the Agreement in whole or in part with immediate effect in the event of:
i.) bankruptcy or suspension of payment of the Client, or
ii.) in the event of liquidation of the Client’s company
8.3 Either party may terminate the Agreement on the basis of an attributable shortcoming of the other party by means of a written notice, if and insofar as the other party has not remedied the shortcoming within a reasonable period after being given the opportunity to do so. , where a maximum period of 30 days is considered reasonable.
8.4 Any services already delivered by the Contractor are payable by the Client upon premature termination (pro rata where applicable), unless the Client demonstrates that the termination is entirely and solely attributable to the Contractor.
8.5 In the event of termination of the Agreement, all (usage) rights granted to the Client will lapse.
8.6 Articles that, by their nature, are intended to remain applicable after the end of the Agreement, remain in full force after termination of the Agreement.
9 INTELLECTUAL PROPERTY
9.1 Unless expressly agreed otherwise in writing, all IP Rights relating to the Services provided and/or the materials supplied and/or the information supplied belong exclusively to the Contractor or its licensors.
9.2 The Client exclusively obtains the non-exclusive and non-transferable right of use of the Performance and/or the materials supplied. This only for the purposes stated in the Agreement, under the conditions determined by the parties and for use in the Netherlands (unless a different scope has been agreed).
9.3 The Client is not permitted to remove and/or change any indication and/or reference regarding IP Rights from the results of Performances.
9.4 The Contractor expressly does not waive its personality rights referred to in Article 25 of the Copyright Act.
9.5 The Contractor reserves the right to apply technical protective measures to the Performance. The Client is not permitted to circumvent these technical protection measures or to offer resources for that purpose.
9.6 The Contractor is permitted to use the work performed and the materials used for the Client, including but not limited to drawings, designs, software, files and reports, for its own promotion and/or publicity.
10 PRIVACY
10.1 The contractor processes the personal data provided by the client in the context of the assignment in accordance with its obligations arising from the applicable privacy laws and regulations.
10.2 The Client guarantees to the Contractor that the information provided by him is not unlawful and does not infringe the rights of any third party.
10.3 The Client indemnifies the Contractor against any claim from any third party in connection with the processing of the aforementioned data.
10.4 To the extent that the Contractor is responsible for the processing of personal data, it only processes those data that are necessary in the context of its services and administration. This data will not be processed for its own other purposes nor provided to third parties, unless the Contractor is obliged to do so by law or regulation.
10.5 The Contractor will take appropriate (technical) measures to secure the Personal Data to be processed on behalf of the Client to prevent any unlawful use and/or processing.
10.6 The Client and the Contractor will discuss and further record the measures to be taken where desired or necessary.
10.7 The Client acknowledges that it is aware of the measures taken or to be taken by the Contractor. The Client acknowledges that these guarantee an appropriate level of security. The foregoing also takes into account the risks associated with the processing and the nature of the specific data to be protected.
10.8 If there is nevertheless destruction, loss, falsification, unauthorized distribution and/or any other form of unlawful use or processing of the processed data, the Client will not hold the Contractor liable for any damage suffered by the Client as a result.
10.9 If the Client expressly requests additional measures, their implementation will take place entirely at the expense and risk of the Client. The Contractor is then not liable for any damage suffered by the Client or third parties.
10.10 The Client fully indemnifies the Contractor against all claims from third parties, including but not limited to any fines imposed by supervisors, which are in any way based on the statement that the measures taken by the Contractor are (or would be) inappropriate and/or otherwise insufficient .
11 LIABILITY
11.1 The Contractor’s liability towards the Client on any grounds whatsoever (including its obligations arising from any guarantee) is limited to compensation for direct damage suffered by the Client up to a maximum of the amount paid out by the Contractor’s insurance company. In addition, any liability of the Contractor is also limited to compensation for direct damage up to a maximum of 50% of the amount of the compensation agreed for that Agreement (excluding VAT and excluding media funds and/or marketing budgets). If the Agreement is a continuing performance agreement, the aforementioned amount is based on 50% of the total of the agreed fees for a maximum of one year. However, the total liability of the Contractor for direct damage, on whatever grounds, will never amount to more than € 250,000 (two hundred and fifty thousand euros), whereby a series of related shortcomings will be regarded as one shortcoming.
11.2 The Contractor’s liability for damage due to death, physical injury or material damage to property will never amount to more than € 1,000,000 (one million euros).
11.3 The Contractor’s liability for indirect damage and/or consequential damage, including but not limited to consequential damage, lost profits, damage due to business stagnation, damage in connection with the use of items, materials or software from third parties prescribed by the Client to the Contractor, mutilation and /or destruction and/or loss of data or documents or damage related to the engagement of third parties prescribed by the Client to the Contractor is excluded.
11.4 The parties agree that in cases where the Client has its own cover for specific damage, the Client will recover this damage from its own insurer.
11.5 The exclusions and limitations of the Contractor’s liability, as described in the previous paragraphs of this Article 12, do not affect the other exclusions and limitations of the Contractor’s liability under this general part of these Conditions and the Section.
11.6 The Contractor’s liability for attributable shortcomings in the performance of an Agreement only arises after the Client has immediately given notice of default to the Contractor in writing and has given the Contractor the opportunity to remedy the attributable shortcoming within a reasonable period of a maximum of 30 days and the Contractor continues to fail after this. continues to shoot for compliance.
11.7 Any (alleged) damage must be reported to the Contractor in writing as soon as possible, but in any case within thirty (30) days after its occurrence, failing which the Contractor will be released from any liability with regard to that specific (alleged) damage. injury. In addition, any claim for compensation against the Contractor shall lapse upon the mere expiration of twelve (12) months after the claim arose.
11.8 The Client’s use of the Services is entirely at the Client’s own risk and responsibility. The Contractor is not liable for the use of the Services by the Client. The Client therefore indemnifies the Contractor against claims from any third party in connection with the execution of the Agreement and/or arising from the use of the Performance delivered by the Client.
11.9 The Client also indemnifies the Contractor against all claims from third parties due to product liability as a result of a defect in a product or system supplied by the Client to third parties and which also consisted of equipment, software or other materials supplied by the Contractor. This unless and insofar as the Client can demonstrate that the damage was caused entirely by that equipment, software or other materials.
12 FORCE MAJEURE
12.1 In the event of force majeure, neither party is liable for any damage resulting from that force majeure situation.
12.2 Force majeure includes: interruptions in the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, shortcomings of the Contractor’s suppliers, shortcomings of third parties engaged by the Parties, disruptions in the connection to the internet, disruptions in equipment and/or (telecommunications) networks and other unforeseen circumstances and/or circumstances over which the Contractor has no direct influence.
12.3 If the force majeure continues for at least thirty (30) days, the Parties are entitled to terminate the Agreement without being obliged to pay compensation for any damage.
12.4 If the Contractor can still perform partially or has performed partially during the force majeure, it is entitled to still perform this performance and to invoice separately or to invoice the performance already performed. This would be as if it were a separate Agreement.
13 CONFIDENTIALITY
13.1 The parties will share all information and data that they obtain from each other, in any form – written, oral, electronic or tangible -, including – but not limited to – software, (source) codes, programs, applications, (customer) treat data, know-how, technical specifications, documentation (hereinafter referred to as “Confidential Information”) as confidential and keep it confidential during the term of the Agreement and for five years after expiry of the Agreement applicable between the parties.
13.2 Parties will only use the Confidential Information for the purpose for which it was provided. The parties will only provide the Confidential Information to their own employees and third parties and/or persons to the extent this is necessary for the execution of the Agreement. The parties ensure that a duty of confidentiality also applies to the aforementioned parties.
13.3 The obligation to maintain confidentiality of the Confidential Information does not apply if and to the extent that the information in question:
a. was already known to the received party at the time of receipt;
b. was already publicly known at the time of receipt;
c. becomes publicly known after receipt through no fault of the receiving party;
d. has been lawfully received from third parties without an associated confidentiality obligation;
e. must be provided on the basis of any legal requirement or pursuant to a judicial decision and the providing Party has informed the other Party of this mandatory disclosure;
f. has been made public with the approval of the providing Party.
13.4 Neither party is permitted to employ staff from the other party and/or otherwise have staff work for them directly or indirectly or to encourage staff to do so, during the Agreement or for one year after the end of an Agreement.
14 TRANSFER OF RIGHTS AND OBLIGATIONS
14.1 The rights and obligations under the Agreement can be transferred or pledged by the Contractor to third parties in the manner desired by the Contractor. This also includes the right to issue a (sub)license. The Client is not authorized to transfer or pledge its rights and/or obligations in whole or in part.
15 APPLICABLE LAW AND JURISDICTION
15.1 These Terms and Conditions including associated Sections and the Agreement are exclusively governed by Dutch law.
15.2 Any disputes arising from the agreement between the parties will be submitted exclusively to the competent court in The Hague.
SECTION RELATING TO THE DEVELOPMENT OF WEBSITES AND APPS
1 APPLICABILITY
1.1 The provisions stated in this Section apply in addition to the General part of the General Terms and Conditions as described above if the Contractor develops a website and/or application on behalf of the Client or provides related work (hereinafter jointly referred to as “the Product”). The other capitalized terms in this Section are defined in the General Terms and Conditions.
2 DEVELOPMENT OF THE PRODUCT
2.1 The Contractor will make every effort to develop the Product or to perform the Performance in accordance with the specifications stated in the Agreement concluded between the parties. There is therefore an obligation of best efforts.
2.2 The Contractor has the right to determine that the Client gives written approval to a design and/or concept of the Product before the Contractor starts developing it, and is entitled to suspend the development and charge the Client for any resulting additional costs. until the Contractor has received the aforementioned approval.
3 RIGHT OF THE CLIENT
3.1 Unless otherwise stated in the Agreement, the Contractor grants the Client the non-exclusive, non-transferable and non-sublicensable right to the Product.
3.2 Unless otherwise agreed, neither the source code of the Product nor the associated (technical) documentation used in the development of the Product will be transferred or made available to the Client.
3.3 The Client is responsible for the use of the Product. The Product may not be used for actions and/or behavior that conflict with the Agreement as concluded between the parties, any applicable law or regulations, public order, good morals or in any other unlawful manner. The Client indemnifies the Contractor against all claims from any third party in this regard.
3.4 If Intellectual Property Rights belong to any licensors of the Contractor, the Client may not be able to transfer them to the Client or further conditions may be imposed on their use.
4 DELIVERY, INSTALLATION AND ACCEPTANCE
4.1 The Contractor will make every effort to deliver the Product in the manner specified in the Agreement.
4.2 If an acceptance test has been agreed, the Product will be considered accepted as soon as the test period has ended or as soon as any errors as stated in a test report as described below have been repaired, if this test report has been sent to the Contractor before the end of the test period. This is without prejudice to the provisions of Article 4.8.
4.3 Notwithstanding the foregoing, the Product will be considered accepted if the Client makes it public or otherwise puts it into use (in whole or in part).
4.4 If, during the performance of an acceptance test, it appears that the Product contains errors that hinder the further progress of the acceptance test, the Client will immediately report this in writing. In this case, the parties will interrupt the test period until the necessary adjustments have been made to remove the obstacle.
4.5 If the Client finds that the Product contains errors during the execution of the acceptance test, he will inform the Contractor of this immediately, where possible, but in any case no later than the last day of the test period. The Client will do this by means of a written test report that is as detailed as possible. The Contractor will then make every effort to correct the errors reported by the Client within a reasonable period, with a maximum period of 30 days being reasonable. The Contractor is permitted to implement temporary solutions of any kind to the Product.
4.6 The Client may only withhold the aforementioned acceptance in the event of substantial errors and/or deviations from what has been agreed with regard to specifications. The Client is not permitted to withhold acceptance due to the presence of minor errors that do not reasonably prevent the Product from being put into use. The contractor is obliged to correct the aforementioned minor errors in accordance with the provisions of Article 5 below.
4.7 The contractor is not obliged to correct errors as described above if they are the result of:
a.) use of the Product in an unauthorized manner;
b.) an adjustment of any kind to the Product made by someone other than the Contractor;
c.) any improper use of the Product by any party; or
d.) errors related to the input or use of data of the Client or any third party.
If the Contractor nevertheless corrects the aforementioned errors at the request of the Client, all associated costs will be borne by the Client. The contractor then does not guarantee the soundness of the repairs as it is unknown to him whether there are any other errors that are not yet visible or have emerged that also (partly) caused the previous errors.
4.8 If the Product is delivered and tested in phases and/or parts, non-acceptance of such a specific phase and/or part does not affect the acceptance of an earlier phase and/or another part.
5 WARRANTIES
5.1 After acceptance of the Product, the Contractor will (may) charge costs for carrying out (repair) work. This unless explicitly agreed otherwise in writing.
5.2 Unless otherwise agreed in writing, the Contractor does not guarantee that the Product functions or will continue to function in combination with all current and/or future software and hardware (including web browsers) or that the Product functions without malfunctions, interruptions or other errors and/or accessible.
5.3 If the Contractor delivers a Product to the Client that the Contractor has received from its suppliers, the warranty from that supplier will serve as a guarantee from the Contractor to the Client and the Contractor will be deemed not to have provided a further guarantee to the Client.
SECTION RELATING TO CONSULTANCY
1 APPLICABILITY
1.1 The provisions stated in this Section apply, in addition to the general part of the General Terms and Conditions, to Services to be purchased by the Client from the Contractor in the field of consultancy (including but not limited to SEO and Analytics) and/or training, or hiring professionals on an hourly basis with a best efforts obligation, hereinafter referred to as “Advisory work”.
2 CONSULTANT ACTIVITIES
2.1 All Advisory work provided by the Contractor will be carried out in the manner specified in the Agreement.
2.2 When carrying out the Advisory Work, the Contractor will take the interests of the Client into account with the utmost care. This applies in particular to the confidentiality of all data and information provided to the Contractor in the context of this Agreement.
2.3 Even if the Agreement has been entered into by the Client with the intention that the Advisory Work would be provided by a specific person, the Contractor remains entitled to replace this person with an equally qualified person or persons.
2.4 If the Consultancy Work is carried out at the Client’s location, the Client will ensure an adequate and safe workplace. The Client is obliged to inform the Contractor’s employees in a timely and complete manner about any applicable health and safety regulations.
2.5 The Client as well as its employees and any third parties engaged by the Client will provide their full cooperation to the Contractor and the employees engaged by him when it concerns the execution of the agreed Consultancy work. The Client ensures that the Contractor and the employees engaged by him are adequately provided with all information required to properly carry out the Consultancy Work.
3 RATES AND WORKING HOURS
3.1 The fees charged by the Contractor for the Advisory Work are based on eight-hour working days, unless explicitly agreed otherwise. The contractor will charge incurred travel costs and other types of expenses on the basis of subsequent calculation, unless otherwise agreed. The Client is responsible for timely payment of the agreed fees and the aforementioned additional costs.
3.2 The Client can purchase additional services from the Contractor against the fees and conditions as included in the Agreement.
4 LIABILITY
4.1 In addition to Article 12 of the general part of the General Terms and Conditions, the parties agree that, except for intent or deliberate recklessness on the part of the Contractor, the Contractor will in no way be held liable for the Advisory Work provided and the possible consequences thereof.
SECTION RELATING TO ONLINE MARKETING
1 APPLICABILITY
1.1 In addition to the general part of the General Terms and Conditions, the provisions stated in this Section apply to Contractor B.V. Performance in the field of online advertising sales, campaign management and online marketing activities, hereinafter jointly referred to as “Marketing Activities”. Activities that are not related to advertising sales, including activities in the field of Advisory activities, SEO and Analytics, do not fall under this section but under the Section “Advisory activities”.
2 FORECASTS AND ADVICE
2.1 To the extent that the Contractor has made forecasts in advance in a media plan or otherwise about possible results of advertising campaigns, these are only estimates and do not bind the Contractor.
3 CLIENT OBLIGATIONS
3.1 The Client will cooperate with the Contractor and provide him in a timely manner with all information of any kind that the Contractor deems necessary for the execution of the Agreement. This includes more specifically and in particular information regarding advertising bans and information obligations.
3.2 If the Client supplies (advertising) material to the Contractor itself or through third parties, the Client guarantees that the (advertising) material is always drawn up in accordance with all applicable laws and regulations, including the Dutch Advertising Code. In addition, the Client guarantees that the (advertising) material does not infringe any (intellectual property) rights of third parties. The Client indemnifies the Contractor against all claims from third parties with regard to any related (alleged) damage.
3.3 The Client guarantees that all (advertising) material supplied by him or on his behalf meets all technical specifications as previously specified by the Contractor to the Client. The Client also guarantees that the supplied material contains no technical defects and is suitable for the installation of measuring systems. The Client indemnifies the Contractor against all claims from third parties with regard to any related (alleged) damage.
3.4 All orders given by the Client with regard to Marketing Work must always be paid for. The parties agree that revocation or cancellation of these orders is not possible. The costs for Marketing Activities will be charged in advance by the Contractor, unless otherwise agreed in writing. If no payment has been made on time, the Advertising Sales will not be carried out by the Contractor and the Contractor is entitled to put the Marketing work on hold if no or no timely payment has been made for this work. The foregoing also means that any compensation already paid by the Client for agreed Marketing Activities relating to advertisements that have already been placed or prepared for publication will not be returned to the Client and that this compensation will also not be credited.
3.5 The Client is obliged to fulfill all obligations towards third parties on time and in full, insofar as these influence the (ability to) perform the Agreement on the part of the Contractor.
4 OBLIGATIONS OF THE CONTRACTOR
4.1 At the Client’s first request, the Contractor will further specify the budget spent on the Marketing Activities. He will do this within a reasonable period of time. The specification includes an overview of what part of the budget is spent on media purchasing and what part is on campaign management costs.
4.2 The Contractor guarantees that (advertising) material drawn up independently by the Contractor on behalf of the Client is in accordance with all laws and regulations and that the material does not infringe any (intellectual property) rights of third parties. The Contractor’s liability in this regard shall lapse if it appears that the Client has provided no, incorrect or incomplete information to the Contractor in violation of the provisions of Article 3.1 above.
4.3 The Contractor is in no way liable for any damage resulting from advertisements placed on behalf of the Client.
5 ACCESS TO THIRD PARTY ACCOUNTS
5.1 If the Client uses accounts belonging to the Contractor itself or accounts belonging to third parties/service providers engaged by the Contractor or required for the performance of the work, the Client will always follow the instructions given by the Contractor, including instructions regarding payments. The Client is fully liable for and indemnifies the Contractor against all damage that is or will be the result of the Client’s failure to comply with the aforementioned instructions or to do so in a timely manner.
5.2 To the extent necessary, the Client will provide the Contractor with all information required for the Contractor to gain access with read rights to accounts with third parties. Delays in the execution of any assignment caused by the fact that the required information has not been provided or has not been provided on time is entirely at the expense and risk of the Client.
5.3 The Contractor is obliged to always adhere to the instructions and/or guidelines provided by the Client regarding the use of the accounts referred to in Article 5.1. The Contractor only has obligations in this regard to the Client and will in no way be liable to any third party.
6 COOKIES AND (ANALYSIS) DATA
6.1 To the extent that the activities of the Client or the party with which agreements are concluded on behalf of the Client in the context of Marketing activities involve placing and reading information on the peripheral equipment of end users (hereinafter: Cookies), the Client acknowledges that it is fully and solely responsible to comply with all applicable legislation when placing and reading Cookies or analysis data otherwise. The Client acknowledges that in this context no responsibility rests or will rest with the Contractor.
6.2 The Client fully guarantees that it acts and will continue to act fully in accordance with all current and future laws and regulations relating to Cookies. The Client explicitly guarantees that it will never place or have cookies read before it has the necessary permission from an end user and that it will always provide the end users with the necessary information in the form of a cookie policy. The Client will not place and read Cookies before then. Where requested by the Contractor, the Client will (be able to) demonstrate this in a proper manner upon request.
6.3 The Client is liable for all damage suffered or to be suffered by the Contractor as a result of non-compliance with this article 6 and/or violation by the Client of applicable laws and regulations and fully indemnifies the Contractor against all claims from third parties of any nature. then. This includes fines imposed in this regard by supervisors.
7 MEASUREMENTS
7.1 The calculation of the agreed fees is based on the administration and measuring systems of the Contractor, unless it is explicitly agreed that if a higher calculation results from the Client’s measuring systems, the Client’s measuring systems will be used as a basis.
7.2 In the event of interruption, suspected influence on the measuring systems or a deviation of more than 10% between the measuring systems of the Contractor and the Client, the Contractor is entitled to calculate the compensation due on the basis of reasonably estimated measurement results. The contractor may then, if desired, rely on previous measurement results.
SECTION RELATING TO HOSTING
1 APPLICABILITY
1.1 The provisions stated in this Section apply in addition to the general part of the General Terms and Conditions if the Contractor stores and transmits information on behalf of the Client via and/or provides access to a (digital) communications network, hereinafter referred to as: “Hosting”.
2 HOSTING AVAILABILITY AND THE ASSOCIATED PERFORMANCE
2.1 The Client is responsible for the availability of the hardware and software, connections and other preconditions on the part of the Client to enable and maintain access to the system.
2.2 Agreements regarding specific service levels will be recorded in a Service Level Agreement (SLA), which will be added as an appendix to the Agreement.
2.3 The Contractor will make every effort to enable the most undisturbed use of the Hosting and the associated performance. This involves an obligation of best efforts.
2.4 The Contractor is never liable for the non-availability or reduced availability of the Hosting as a result of, among other things, power failure or power failure, disruptions in the telecommunications network, telecommunications equipment and/or the internet, defects in the Client’s hardware and/or software and all other causes. that are beyond the power and/or sphere of influence of the Contractor.
2.5 The Contractor has the right to temporarily or permanently decommission the Hosting and the associated services or to limit their use for the purpose of maintenance work or adjustments to the system. The Contractor will inform the Client of this in advance. In the aforementioned cases, the Client is not entitled to compensation and/or the right to a refund of any agreed compensation.
2.6 In the event of exceeding the agreed and/or permitted data traffic and/or the agreed and/or permitted disk space, the Contractor is entitled to charge additional costs, which additional costs the Client is obliged to pay.
2.7 If, after the term of the Agreement, the Client decides not to extend the collaboration with the Contractor, the Contractor will cooperate in any transfer to third parties. This is at the Contractor’s applicable rates. If the Client fails to fulfill its payment obligations towards the Contractor, the Contractor is entitled to suspend the aforementioned cooperation until the Client has fully met its payment obligations.
3 CLIENT OBLIGATIONS
3.1 The Client is explicitly prohibited from distributing information and/or data in any form or from providing facilities or functionalities by or via websites hosted by the Contractor, if and insofar as this information and/or data is contrary to any law. – and regulations, including regulations from self-regulatory bodies, the Agreement applicable between the parties and/or guidelines, instructions and/or directions reasonably given by the Contractor.
3.2 The Client will at all times act and behave as a careful user with regard to the information and/or data it intends to make public, as well as the (intended) internet use. The Client will, among other things, comply with all legal provisions and regulations, observe “nettiquette” and completely refrain from any behavior contrary to good morals and/or public order, spamming activities (whether or not itself or via third parties). , infringement of any intellectual property right of a third party, publication and/or distribution of (child) pornography, sexual harassment and/or otherwise harassing third parties, infringement of the privacy of third parties and/or harm to the honor or good name of third parties, hacking, performing DDoS or other types of attacks, as well as spreading viruses, worms or other (illegal) programs that may cause damage to individual systems and/or disrupt the operation of the Internet as a whole or in part.
3.3 The Client is at all times obliged to use the Hosting in such a way that the correct functioning of the communication network is not hindered, and that other clients of the Contractor and/or third parties are also not hindered in the use of their Hosting or otherwise.
3.4 If the Client does not comply with the provisions of this article and/or if the Contractor receives a notification from third parties that this is (possibly) the case, the Contractor has the right to immediately suspend the Hosting without further notice. or to discontinue, block connections and/or remove content. In those cases where this is justified given the seriousness of the violation, the Contractor has the right to terminate the Agreement immediately and without further notice of default. In the event of termination on the basis of one of the cases described above, the Client has no right to compensation, no right to any refund of fees already paid and there will also be no liability for the Contractor with regard to any damage suffered by the Client as a result.
3.5 The Client also indemnifies the Contractor against all claims from third parties, including but not limited to claims due to information and/or data made public by or via the Client’s websites and claims from the Contractor’s supplier(s) arising from failure to and/or the Client does not fully or incorrectly fulfill a partnership or several obligations arising from the Agreement and more specifically from the current article in this Section.
VERSION 1.0 dATED April 12, 2023