GENERAL TERMS AND CONDITIONS
Digital Newsgroup B.V. (DNG)
In these General Terms and Conditions, the following terms have the following meanings:
1.1 You, you or the Principal: the party for whom the Assignment is performed.
1.2 We, us or our: the one(s) of the legal entities mentioned below to whom the Order is granted: DNG BV.
1.3 Order: the verbal or written agreement whereby we undertake to perform work for you.
1.4 Advertising Expenditure: all amounts owed by the Client to an Advertising Account on the basis of the referral of visitors from the Advertising Campaigns to the Client's Website.
1.5 Advertising Campaigns: all elements relating to advertising through the Advertising Accounts.
1.6 Service: the effort(s) to which this Agreement relates and which are provided by DNG B.V.
1.7 Data of the Customer
1. data collected through its own means;
2. data collected using the Tracking Script provided by DNG B.V. and installed on the Customer's Website(s) regarding visits and sales made.
1.8 Data of DNG B.V. :
arranged (not traceable to a person) data regarding all Internet users who make use of the Client's Website(s) and all product data present in the Client's Product Catalogue;
b. the arranged data (not traceable to a person), product data and financial data collected during the cooperation
c. all data resulting from experience and know-how in the field of e-commerce, the historical data of the Publicity Platforms and its technologies for extending the data.
1.9 Tracking: the automated tracking of Conversions realised through Advertising Accounts.
1.10 Tracking Script: any technology that enables the exchange of Conversion Data between the Advertising Accounts, DNG software and the Website of the Client.
1.11 Conversions: the number or percentage of website visitors who take an action. An action is understood to mean any action by a website visitor, including but not limited to a purchase at a web shop, filling out a quotation (request), filling out a form, registering for a newsletter, clicking on a contact button, etc.
2.1 These General Terms and Conditions apply to all Engagements.
2.2 The Client's general terms and conditions are not applicable and are explicitly rejected by DNG B.V.
2.3 The Order is performed by us with due regard for the applicable maximum liability in accordance with our liability insurance and applicable (inter)national laws and regulations.
2.4 If one or more provisions of these general terms and conditions are null and void or should be annulled, the other provisions of these general terms and conditions shall remain applicable.
3 ESTABLISHMENT OF THE ORDER
3.1 The Engagement will come into being as soon as we have received the written agreement signed by you and us in which the Engagement has been laid down, subject to the provisions of paragraph 2.2 below.
3.2 You are responsible for the description of the assignment and the marketing budgets to be deployed by DNG B.V. on your behalf, and for the decisions you take or wish to take in response to and/or (partly) on the basis of our work.
3.3 The marketing budgets can be adjusted upwards by you at all times. The Service Fee payable by you will be calculated on the basis of the marketing budget used.
3.4 Amendments to the agreement are valid if made in writing and/or by e-mail.
4 YOUR OBLIGATIONS
4.1 If your cooperation is required in the context of an Order, you shall provide us with all information and documents that we require for the correct and timely execution of the granted Order, on time and in the form and manner we require. When using the DNG B.V. software, you shall be responsible for the correct and timely incoming data through this software connection.
4.2 Within the framework of the Order, you are responsible for providing updates of the range of products and services offered on your Website(s), including all information and in particular the prices thereof. In no event can DNG B.V. be held liable for damage suffered as a result of errors or delays in the indexing of products and/or services.
4.3 The Assignment is performed by us on the basis of information made available to us in the context of the Assignment, including conversations we conduct with you or, at your request, with third parties. You guarantee that the information you provide is correct and complete. You agree that if we receive information from third parties in the context of the Engagement, we shall assume, without further verification of that information, that it is correct and complete, unless the engagement letter explicitly states otherwise.
4.4 The extra costs and damage resulting from a delay in the performance of the Engagement, caused by the fact that the requested information, facilities and/or staff have not been made available, or have not been made available on time or properly, shall be for your account and risk.
4.5 You shall inform us without delay about (changes in) your legal structure and the control relationships within the group to which you belong, as well as about all other (financial) alliances in which you participate or of which you are a part, all in the broadest sense, and about other facts and circumstances that may be relevant in connection with the execution of the Engagement, to enable us to comply with the independence regulations.
4.6 If during the performance of the Agreement the client stops offering products or services as a result of which the minimum marketing budget cannot be achieved, DNG B.V. shall still be entitled to charge the agreed service fee until the minimum marketing budget has been achieved.
4.7 DNG B.V. has your permission to collect, process, analyse and combine data within the framework of the Agreement with data from DNG B.V., for the performance and optimisation of the services.
4.8 For Assignments to be performed by us at your location, you shall provide office space and electronic means of communication that we deem necessary or useful for the performance of the Assignment and that meet all (legal) requirements.
4.9 You guarantee that you own all intellectual and industrial property rights to products, brands, logos and other distinguishing marks, as well as to the Website(s) and all parts that are part thereof or displayed thereon.
4.10 You guarantee that your Website(s) comply with the applicable laws and regulations and, in particular, that they do not infringe on public order, morality or the rights of third parties.
5 EXECUTION OF THE ORDER
5.1 All activities performed by us shall be carried out to the best of our knowledge and ability in accordance with the requirements of good craftsmanship. With respect to our (intended) work, there is an obligation to perform to the best of our abilities.
5.2 We determine the manner in which and the persons by whom the Engagement shall be performed. In situations in which it is explicitly intended that the Assignment be performed by a certain natural person, the applicability of articles 7:404 and 7:407 paragraph 2 of the Dutch Civil Code is excluded.
5.3 DNG B.V. may at all times subcontract and transfer (parts of) The Agreement to a third party.
5.4 We may carry out and charge you for more work than was commissioned if this work arises from any (inter)national legislation or (professional) regulations applicable to the Order.
5.5 We shall keep our own (electronic) work file in relation to the Engagement, containing (copies of) documents we consider relevant, which shall remain our property.
5.6 Our records (including e-mails and digital scans of engagement letters) will serve as full evidence vis-à-vis you, subject to evidence to the contrary provided by you.
6 CONFIDENTIALITY AND DATA
6.1 Unless (i) any provision of (inter)national law or (professional) regulations
6.1 Unless (i) any provision of (inter)national laws or professional rules obliges us to disclose information; or (ii) we or persons affiliated with or working for us
are acting in disciplinary, civil, administrative and/or criminal proceedings in which this information may be
and/or criminal proceedings in which this information may be of importance, we and the persons deployed by us will not
persons employed by us do not disclose or share confidential information and
or personal data to third parties other than those mentioned in this
Article 5. In the performance of our work, we act in line with the
We act in line with the General Data Protection Regulation ("AVG").
6.2 You agree that in the context of: (i) an Assignment by you to us
6.2 You agree that for the purposes of: (i) any Engagement provided to us by you, (ii) complying with any legal obligations incumbent on us, (iii)
risk management and quality review requirements, and (iv) internal business
purposes, we will use confidential information and personal
and/or persons (formerly) employed by, or for, or connected to you, your clients or third parties, including
your clients or third parties, including the sharing of such
(a) DNG B.V. teams other than those involved in the performance of the Order; and
(b) other DNG B.V. parties;
(c) if necessary, with parties involved in the execution of the Order; and
(d) subcontractors and IT service providers; and
(e) third parties for the benefit of (scientific) research to be performed by them in order to guarantee the quality of our services; and (f) our insurers or legal or financial advisers.
6.3 You agree that we may use (confidential) information and personal data received from you or on your behalf, provided that it is anonymised and not traceable, for purposes including the compilation and maintenance of best practices, statistics, remarketing, research and/or benchmarking.
6.4 We are entitled to use Cloud Services to support our business operations.
6.5 We may transfer personal data for the purposes described in this Article 5 to countries outside the European Economic Area (EEA) if the recipient is deemed to provide an adequate level of data protection under the AVG.
6.6 We shall take appropriate measures to protect the confidential information and personal data and inform the third parties and employees engaged by us of the confidential nature of the information.
6.7 The processing of personal data by us takes place in accordance with applicable (inter)national laws and (professional) regulations in the field of personal data protection. You accept that these General Terms and Conditions also apply as a Processing Agreement between the parties within the framework of the General Data Protection Regulation.
6.8 Unless (inter)national legislation or (professional) regulations require you to disclose information, or unless we have given our prior written consent, you shall not disclose or provide to third parties any information relating to the Engagement, the content of reports, recommendations or any other written or unwritten statements from us.
6.9 The parties shall impose their obligations under this Article on any third parties that they engage.
6.10 We are entitled to mention your name and to mention in outline form the work performed and the related results to our (potential) Clients and on our website as an indication of our experience.
6.11 The parties guarantee the confidentiality of the financial, technical and commercial data or other information relating to the activities of the other party that is provided by the other party in the context of the conclusion and performance of the Agreement.
6.12 The parties guarantee the confidentiality of the contents of the Agreement.
6.13 You shall treat all data and documents provided by DNG B.V. - in the broadest sense of the word - including the results and statistics, as well as the applicable rates, as confidential data, unless DNG B.V. independently chooses to disclose these through its website.
6.14 You are responsible for the protection of personal data on the pages of Your Website(s) and must apply a sound policy for the protection of personal data. You undertake to include a personal data protection policy on your Website(s) in which it is clearly stated that DNG B.V. makes use of anonymous cookies for re-marketing purposes. You also undertake to inform your users of the various options for managing cookies. DNG B.V. can under no circumstances be held liable for your processing of (personal) data.
6.15 You indemnify DNG B.V. against all possible claims regarding infringement of copyrights, patents or other third-party rights.
7 INTELLECTUAL PROPERTY
7.1 We reserve all intellectual property rights in respect of products of the mind that we use or have used and/or develop and/or have developed in the context of the performance of the Order, and in respect of which we hold or can exercise copyrights or other intellectual property rights.
7.2 We are and shall remain the owner or holder of all intellectual and industrial property rights with regard to the DNG.online Website, our software or the constituent parts thereof, every trademark or distinctive sign of DNG B.V. .
7.3 DNG B.V. also retains all intellectual property rights to the data and documents provided - in the broadest sense of the word - including the results and statistics, as well as the applicable rates.
7.4 You are explicitly forbidden from reproducing, publishing or exploiting products, including computer programmes, automation techniques, system designs, systems, advertising campaigns, tracking scripts, content, software, working methods, advice, (model) contracts, brands and logos and other intellectual products of ours, all this in the broadest sense of the word, with or without the involvement of third parties. Duplication and/or publication and/or exploitation are only allowed after our prior written consent.
7.5 You have the right to reproduce written documents for your own internal use, to the extent appropriate within the purpose and duration of the Agreement.
7.6 Each infringement of our intellectual property, by violation of the above articles or in any other way, shall be
7.6 Any infringement of our intellectual property, by violation of the above articles or in any other way, will be fined by us with EUR 18,000.00 per infringement, to be increased by EUR 800.00 for each day or part thereof that the infringement continues, without the need for any form of damage and without prejudice to DNG B.V.'s other rights, including the right to claim damages in addition to the aforementioned fines. This in order to protect the weighty business interests by which DNG B.V. distinguishes itself from its competitors and strongly determines its market position.
8.1 You shall pay DNG B.V. the agreed Service Fee, SEO marketing budgets and any additional work, whereby the first advance payment shall be settled by bank in advance and the subsequent payments by SEPA direct debit monthly.
8.2 The fee owed by you to DNG B.V. will be invoiced once a month with a payment term of 7 days after notification. The parties agree that these invoices are automatically debited and that this is a deadline.
8.3 In the event of an Assignment given jointly, all Clients are jointly and severally liable for payment of the full invoice amount to us insofar as the work is performed for these joint Clients.
8.4 You are responsible for the sufficient balance, completeness and correctness of the bank details provided. If you have the debit payment reversed or blocked, or if a direct debit transaction has failed twice, we are entitled to charge you €45 excl.
8.5 Our fee includes our expenses, including invoices from third parties engaged by us and excluding sales tax and other levies (possibly) imposed by the government. We shall charge the aforementioned expenses, invoices and levies on to you.
8.6 If after the conclusion of the Engagement, but before the Engagement has been fully executed, factors determining our rates, such as wages and/or prices, should change, we shall be entitled to adjust the rates previously agreed accordingly.
8.7 Payment shall be made without deduction, discount or setoff within 7 days of the invoice date. Payment must be made in the currency stated on the invoice, by means of transfer to a bank account to be designated by us.
8.8 We apply a complaint term of seven (7) days after the date of the invoice. Complaints or objections to the amount of the invoices submitted will only be considered within the complaint period of 7 days after the invoice date and will not suspend your payment obligation.
8.9 Suspension of Advertising Accounts, under spending or no spending of marketing budgets or the inability to advertise cannot be a reason for complaint of the service as an effort to advertise did take place.
8.10 If, in our opinion, your financial position and/or payment record so warrants, we shall be entitled to demand that you immediately furnish (additional) security in a form to be determined by us and/or make an advance payment. If you fail to provide the required security or to make the requested advance payment, we shall be entitled, without prejudice to our other rights, to suspend further execution of the Engagement and your advertising campaigns forthwith, and anything you owe us for whatever reason shall be immediately due and payable.
8.11 After the ultimate payment term has expired, we will initiate an external collection process, whereby all judicial and extrajudicial (collection) costs incurred by us in connection with your failure to fulfil your (payment) obligations will be at your expense. The Compensation for Extrajudicial Collection Costs Decree in which further rules have been included with regard to the compensation of extrajudicial costs, does not apply to you. DNG B.V. reserves the right to claim the actual costs incurred, whereby we will also charge you default interest in the amount of three (3) times the statutory interest rate on the amount due from the first day of delay until the day of full payment and a fixed compensation for collection costs of 15% of the outstanding amount with a minimum of EUR 250,- excluding VAT...
8.12 If you do not or not fully comply with your obligations, DNG B.V. is entitled to stop its work and charge the fee for the remaining months, increased by EUR 250 (excl. VAT)
This amount shall be paid by you within 14 days.
9.1 You indemnify DNG B.V. against all complaints and claims with regard to the access to and the sales on your Website(s) and the use by DNG B.V. of the Information you provide. Without excluding other complaints and claims, indemnification shall always apply to complaints and claims resulting from
infringement of an intellectual or industrial property right of a third party;
infringement of personality rights;
unfair or parasitic competition;
Breach of public order or morality;
breach of privacy and personal data protection rules; breach of the provisions of the consumption law
breach of the legal rules on advertising and the display of prices;
In such cases, you shall be responsible for DNG B.V.'s defence and shall pay DNG all costs of damages, legal assistance and other costs that DNG. B.V. is ordered to pay or that it must incur in this connection.
9.2 Complaints with regard to the work performed and/or the invoice amount must, at the risk of forfeiting all claims, be reported to us in writing within 7 days after the date of dispatch of the documents or information about which you are complaining, or within 7 days after the discovery of the defect, error or shortcoming, if you demonstrate that you could not reasonably have discovered the defect, error or shortcoming earlier.
9.3 Complaints as referred to in the first paragraph shall not suspend your obligation to pay. You shall in no event be entitled, on the basis of a complaint with respect to a certain service, to postpone payment or to refuse payment for other services provided by us to which the complaint does not relate.
9.4 In the event of a justified complaint made in a timely manner, you shall have the choice between adjusting the fee charged, improving or performing the rejected work again free of charge, or discontinuing performance of the Engagement in whole or in part against a proportionate refund of the fee already paid by you.
10 DELIVERY PERIOD
10.1 If you are required to make an advance payment or to make information and/or materials available that is/are required for the performance of the Engagement, the period within which the work must be completed shall not begin until we have received the payment in full or the information and/or materials have been made available to us in full, respectively.
10.2 The periods within which the work must be completed shall only be considered as strict deadlines if this has been agreed in writing in advance.
10.3 Unless it has been established that execution of the Engagement is permanently impossible, it shall not be possible for you to dissolve the Engagement on account of failure to meet a deadline, unless we also fail to execute the Engagement, or fail to execute it in full, within a reasonable period notified to us in writing after expiry of the agreed delivery period.
11 (INTERIM) TERMINATION OF THE ASSIGNMENT
11.1 The parties may terminate the Assignment in writing with due observance of a notice period of 3 calendar months.
11.2 Premature termination or premature pause of the provision of services is not possible.
11.3 The parties may terminate all or part of the Assignment without notice of default and without judicial intervention by means of written notification with immediate effect if the other party is granted a suspension of payments, whether provisional or not, if the other party is declared bankrupt or if its business is wound up or terminated.
11.4 If you have decided to terminate the Engagement early, we shall be entitled to compensation for the work already performed, notice period and costs reasonably incurred by us as a result of the early termination of the Engagement (such as costs relating to subcontracting), unless the termination is based on facts and circumstances that can be attributed to us. If we have effected premature termination, you are entitled to our cooperation in transferring work to third parties, unless the termination is based on facts and circumstances that can be attributed to you.
11.5 If a prohibition to use your Website(s) is pronounced as a result of a legal claim or such a prohibition arises from a settlement agreed upon with a third party, DNG B.V. may terminate the Agreement immediately without notice, although DNG B.V. will charge the notice period. You cannot claim any compensation for the amounts charged by you under the Agreement.
11.6 Upon termination of the Agreement, the Advertiser Accounts created by DNG B.V., including the systematic manner of constructing an Advertisement Campaign, are not transferred. These remain the intellectual property of DNG B.V. The Client is not permitted to use them in any form whatsoever, nor to share them or make them visible to third parties.
11.7 If you fail to fulfil one of the contractual obligations, DNG B.V. can terminate the Agreement with immediate effect by e mail or any other written document. DNG B.V. shall in this case not be bound by any notice period; article 7.12 shall apply in full.
12.1 We shall perform our work to the best of our ability, exercising the care that may be expected of us. If mistakes are made because you or a third party provided us with incorrect or incomplete information, we are not liable for the damage caused by this. Our liability is limited to the amount equal to three times the fee you paid and/or still owe us for the specific work carried out under the Engagement from which the liability arose, with a maximum of €1,500 in the case of another Engagement. If the duration of the Engagement exceeds a period of twelve months, your total liability in connection with the Engagement shall be limited to a maximum of three times the amount of the fee you paid and/or still owe us over the past twelve months for the specific activities under the Engagement from which the liability arose, subject to a maximum of € 10,000 in the case of an Other Engagement with a duration of more than twelve months.
12.2 If the Engagement is carried out on behalf of several legal entities or natural persons, the limitation of liability with respect to the Engagement shall apply to all the legal entities or natural persons concerned jointly. In the event of liability, it is up to the group of legal entities and natural persons concerned to divide the maximum amount of damages among themselves.
12.3 You shall indemnify us against all claims from third parties that may arise as a result of your failure to fulfil, or incorrect fulfilment of, any obligation arising from the Engagement and/or these General Terms and Conditions. This indemnification is also stipulated for the benefit of the (directors of) shareholders, directors or employees of us and of third parties, including other DNG firms, engaged by us for the performance of the Assignment who may rely on this indemnification directly. Notwithstanding the above, the indemnification shall not apply if and insofar as it is in conflict with mandatory (inter)national laws or (professional) regulations.
12.4 You and/or your group companies shall exercise any claims or rights of recourse exclusively against us and not against third parties engaged by us, our shareholders, directors or employees.
12.5 We shall not be liable for any advertising expenses, returns, sales, consequential, indirect, commercial or punitive damages and/or loss of profits.
12.6 We reserve the right to make use of third parties for (part of) the execution of the Engagement. The performance of the Engagement shall take place under our sole responsibility and you and/or your group companies shall not hold any partners or staff involved by DNG B.V. liable (whether contractually, extra-contractually or otherwise) in connection with the performance of the Engagement. Third parties, their partners and employees may invoke the foregoing as if they were parties to the Order. We shall be entitled to compensation for damage and costs resulting from a breach of this provision.
12.7 Your rights of action and other powers vis-à-vis us, arising on whatever grounds from the Engagement, shall lapse one month after the damage for which we are held liable first manifested itself and, in any event, one year after the damage-causing event occurred.
13 TRANSFER OF CONTRACT
You are not permitted to transfer (any obligation arising from) the Engagement to third parties, unless we have given our express written consent. We are entitled to attach conditions to this consent, which shall not be withheld on unreasonable grounds. You undertake in any case to impose all relevant (payment) obligations from the Engagement and these General Terms and Conditions on the third party. You shall at all times remain jointly and severally liable in addition to that third party for the obligations arising from the Order and the General Terms and Conditions.
14 INTERNET USE
Parties can communicate with each other via electronic means of communication. The parties acknowledge that the use of electronic means of communication involves risks such as - but not limited to - distortion, delay, interception, manipulation, loss of data, incompleteness of data and viruses. The parties hereby establish that they shall not be liable in respect of each other for any damage which may arise for one or both of them as a result of the use of electronic means of communication. The parties shall do or omit to do everything that may reasonably be expected of each of them in order to prevent the above-mentioned risks from occurring.
15 WAIVER OF RIGHTS
15.1 The failure to directly enforce any right or power shall not affect or limit our rights and powers under the Order. Waiver of any right or condition in the Order shall only be effective if expressly made in writing.
15.2 You expressly agree that we may also perform work for other (possibly competing) Clients. These services to third parties do not affect the quality and performance on behalf of the Client.
If and to the extent that any provision of the Engagement cannot be invoked on the grounds of reasonableness and fairness or its unreasonably onerous nature, the provision concerned shall in any event be accorded a meaning corresponding as closely as possible to its contents and tenor so that it can be invoked.
The provisions of the Engagement, which are intended, either explicitly or tacitly, to remain in effect after termination of the Engagement, shall remain in effect thereafter and continue to bind both parties.
18 CONFLICTING CLAUSES/PRIORITY
If these General Terms and Conditions and the written agreement for the Engagement contain any conflicting conditions, the conditions included in the written agreement for the Engagement shall prevail.
Assignment agreement shall prevail. Only the written agreement of the Assignment may deviate from these General Terms and Conditions.
19 PROHIBITION OF RECRUITMENT
During the term of the Agreement and within one year after termination of the Agreement it is not allowed to enter into an employment agreement in any way, directly or indirectly, in person or through a legal entity in which the Client has a direct or indirect interest, with employees of DNG B.V. or of companies affiliated with DNG B.V. The Customer is also strictly forbidden to induce staff of DNG B.V. - or of an organisation allied to it - to accept employment with (an enterprise of) the Customer or with any other employer. In the event of an infringement/ non-compliance with the provisions in the previous paragraphs of this article, the Customer shall forfeit to DNG B.V. an immediately payable penalty of € 15,000.00 per infringement/ non-compliance, to be increased by € 250.00 for each day - irrespective of whether or not this is customary - during which the infringement/ non-compliance continues, and without prejudice to the employer's right to claim compliance with the non-solicitation clause and compensation for the full damages in lieu of this penalty.
20 FORCE MAJEURE
20.1 Supplementary to the provisions in article 6:75 of the Dutch Civil Code, a failure by DNG B.V. to fulfil any obligation towards the Client cannot be attributed to DNG B.V. in the event of a circumstance beyond DNG B.V.'s control as a result of which it is entirely or partially prevented from fulfilling its obligations towards the Client or as a result of which DNG B.V. cannot reasonably be expected to fulfil its obligations. These circumstances also include failures by suppliers or other third parties, malfunctions in software systems, malfunctioning of advertisement systems, power failures, computer viruses, strikes, compulsory days off and work stoppages.
20.2 If a situation as referred to in article 17.1 occurs as a result of which DNG B.V. cannot fulfil its obligations, these obligations shall be suspended for as long as DNG B.V. cannot fulfil its obligations. If the situation referred to in the previous sentence has lasted ninety (90) calendar days, both parties shall be entitled to dissolve the agreement. DNG B.V. shall in that case not be obliged to pay any damages, even if DNG B.V. benefits from the force majeure situation.
21 AMENDMENT OF THE GENERAL CONDITIONS
DNG B.V. reserves the right to amend these General Terms and Conditions at its own discretion. The Client shall be informed of these amendments by e-mail. The amendments shall be immediately applicable.
22 APPLICABLE LAW AND CHOICE OF FORUM
22.1 All Engagements and negotiations between the parties shall be governed by Dutch law.
22.2 All disputes between the parties relating to Engagements shall in the first instance be settled by the competent court in Utrecht.
22.2 All disputes relating to Engagements between the parties shall in the first instance be settled by the competent court in Utrecht.