1.1. In these General Terms and Conditions, hereinafter referred to as "Terms and Conditions", the terms below are defined as follows:
1.2. These Terms and Conditions apply to all Offers and to all Agreements between the Contractor and the Client, subject to any provisions in the Agreement to the contrary or the Parties have otherwise expressly deviated from them in writing. Any such deviation relates exclusively to the relevant Agreement.
1.3. the Contractor expressly rejects the applicability of general terms and conditions used by the Client.
2.1. An Offer, issued in any form whatsoever, is at all times made without obligation, even if it includes a deadline for acceptance. An Offer can be revoked by the Contractor within five (5) working days upon acceptance by the Client.
2.2. An Agreement will only be concluded after the Contractor’s confirmation of the assignment In Writing to the Client, or once the Contractor has started the execution of the assignment. The Contractor has the right to cancel an Agreement up to one week before the Placement Date without stating reasons or for any reason whatsoever, without owing any compensation as a result.
2.3. The Contractor enters into an agreement with the Client in its own name, and not as a Publisher nor as an agent on behalf of a Publisher or on behalf of an intermediary, and consequently, no direct contractual relationship arises between the Client on the one hand and the Publisher or intermediary on the other.
2.4. Unless the Client objects in writing to the Contractor immediately after an order confirmation is sent, such confirmation shall constitute conclusive proof between the parties of the agreements made between them.
2.5. The Contractor does, however, have the right to rectify evident mistakes and omissions, or those that have been made plausible by the Contractor, even after the Agreement has been concluded, and to make corresponding amendments to the Agreement, except unless the Client would not reasonably have entered into the accordingly amended Agreement.
2.6. Except where the Parties have expressly agreed otherwise in writing, the Contractor shall not in any way grant exclusivity or priority to the Client with respect to a Placement or Other Services.
3.1. Subject to other provisions in the Offer or the Agreement or arising therefrom, the rates are exclusive of VAT, plus any statutory surcharges.
3.2. Where the Offer or the Agreement does not state any rates in full or in part, the Contractor’s usual rates shall apply. This applies to Placements and also to Other Services, if no agreements on the rates have been made in this respect.
3.3. If, after the conclusion of the Agreement, cost-increasing circumstances arise or come to light which cannot be attributed to the Contractor and which were not taken into account in the determination of the rate, the Contractor will have the right to pass on the resulting cost increase to the Client.
3.4. Unless provided otherwise in the Agreement, the Contractor will have the right to demand full or partial payment in advance or adequate security, and payment of the Contractor's invoices must be made within fourteen (14) days. The Client will not be entitled to any discount, suspension or offsetting in respect of its payment obligation.
3.5. If payment is not made on time within the period specified in the Agreement or in the previous paragraph, the Client shall be in default by operation of law, without any prior demand or notice of default being required. In that case, the Client shall owe the Contractor the following amounts on the amount due: (i) the statutory (commercial) interest as referred to in Book 6, Sections 119a and 6:120 of the Dutch Civil Code, (ii) all extrajudicial costs incurred by the Contractor with a minimum of 15% of the due and payable claim, and (iii) any judicial costs, without prejudice to any other rights of the Contractor in that case under the law.
3.6. In the event that and as long as the Client has any payment obligation, whether or not due and payable, in respect of the Contractor or the Client is otherwise in default with any obligations, the Contractor will have the right of retention on all Placement Materials supplied by the Client or by third parties, and the Contractor will moreover have the right to suspend its own performance(s), without prejudice to the Client's payment obligations in respect of such (suspended) performance(s). If due to the Placement can no longer be reasonably executed by the Contractor, this shall be at the Client's risk and the relevant obligation of the Contractor shall end.
4.1. Unless expressly agreed otherwise in writing, Placement Dates and delivery times specified or agreed by the Contractor for its Other Services shall be deemed to have been given by way of estimate, and shall not constitute a deadline.
4.2. In the event that delivery times are exceeded, which event has no effect until all conditions for performance have been met by the Contractor, the Contractor shall not be liable for any compensation by operation of law.
4.3. If the delay exceeds or will exceed one week, the Client may give the Contractorwritten notice of default regarding compliance with due observance of a period that is considered reasonable under the circumstances. If the Contractor remains in defaultat such time, the Client may exercise the rights granted to it by law in that case, with the Agreement and these general terms and conditions prevailing over non-mandatory law.
5.1. Unless otherwise agreed, the Client must supply all Placement Materials to (the traffic department of) the Contractor on time and in accordance with the specifications provided by the Contractor, free of technical defects and viruses, and suitable for the intended purposes and operation. It is the sole responsibility of the Client to verify the delivery date, technical specifications, and manner of delivery of Placement Materials to the Contractor, and to execute the same properly.
5.2. If due to untimely or improper or incomplete supply of Placement Materials the agreed Placement cannot take place, the Client shall nevertheless be obliged to pay the agreed price and the Client shall not be entitled to a substitute Placement.
6.1 The Contractor will be obliged to perform the Agreement to the best of its ability and professional workmanship in accordance with the applicable statutory and generally accepted standards. However, in case the Contractor failed to check or did not sufficiently check the suitability of the Placement Materials supplied, the Client cannot derive any rights from this.
6.2. The Contractor shall exercise all due care in the provision of advice, but cannot be held responsible for the consequences if any advice should be inaccurate or incomplete. Any forecasts issued by the Contractor are estimates and shall not bind the Contractor.
6.3. If the Contractor needs to engage a third party in the execution of the Assignment, such as, for example, a Publisher or Printer, the Contractor will exercise all due care in contracting such third party. However, the Contractor will not in any way be liable to the Client for any loss or damage resulting from a failure in the performance by such third party, including in the event that such third party fails to perform, fails to perform on time or performs improperly, even if the cause of such failure can be attributed to the Contractor in whole or in part.
6.4. The Client cannot appeal to a defect, guarantee or any failure to perform an obligation if he himself is in any way in default in respect of the Contractor.
6.5. In the event of a claim by the Client due to any defect or a claim under a guarantee, the Contractor shall at all times be entitled to rectify the defect or supplement anything that is missing.
6.6 Only after the Client has given the Contractor the opportunity to rectify or supplement and if the Contractor subsequently remains in default after a written notice of default with due observance of a reasonable term, the Client may exercise the rights granted to him by law in that case, whereby, however, the Agreement and these general terms and conditions prevail over non-mandatory law.
6.7. The Contractor has the right to refuse a Placement if, the Contractor believes that the contents or context thereof, is directly or indirectly (e.g. through a link to a website) contrary to public order or decency, including - but not exhaustively - through its discriminatory, sexist, racist and/or hate-mongering nature, or infringes the rights of third parties or is otherwise unlawful. Refusal shall not affect the Client's payment obligation.
6.8. The Contractor shall comply with all applicable personal data protection regulations when performing an Agreement.
7.1. In the event of force majeure, the Contractor’s obligations will be suspended. In the event that the Contractor is no longer able to fulfil its obligations properly due to force majeure, or if the force majeure situation has continued for more than four (4) weeks and no further delay in fulfilment can reasonably be demanded of either Party, both Parties will have the right to terminate the Agreement without owing any compensation in this respect. Anything performed by the Contractor up to that point and represents an independent value shall be paid by the Client upon submission of an invoice.
7.2. In general, force majeure means all special circumstances not attributable to the fault of the Contractor which hinder, impede and/or delay the proper and/or timely performance by the Contractor, such as war, insurrection, blockades and similar situations, government measures, lock-outs, strikes, hindrance by third parties, transport problems, interruption in delivery operations by suppliers or by third parties engaged, fire, explosions, other malfunctions at the Contractor, natural disasters, interruption in operations due to weather conditions and unforeseen technical problems.
7.3. If for any reason the Publisher refuses or delays a Placement, or defaults in any respect, or if another supplier such as a printer defaults in any respect, as a result of which the Contractor is unable to fulfil the Agreement or not properly or not on time, this constitutes force majeure for the Contractor in relation to the Client. In such case the Contractor has the right to cancel an Agreement without owing any respective compensation.
8.1. Except in the event of intent or equivalent recklessness on the part of the Contractor or its executive staff, the Contractor will not in any way be liable for damage resulting from any breach and/or subsequent termination or dissolution of the Agreement. Furthermore, the Contractor’s liability is at all times excluded for: indirect and consequential damage, immaterial damage, also including loss of turnover and profit, loss, harm to the market share, goodwill and/or reputation, production damage and/or interruption in operations, legal costs, etc., regardless of whether this damage is suffered by the Client or a third party on whose behalf the Client is acting.
8.2.The Client shall fully indemnify the Contractor against all third-party claims related to services and/or products provided by the Contractor or shortcomings on the part of the Contractor.
8.3. If and insofar as the Contractor should nevertheless incur any liability, on any account whatsoever, this will be limited to the amount of the net invoice value for the Contractor of the part of the Agreement related to the damage and liability, with a maximum of € 5,000 (in words: five thousand euros).
9.1. All rights, claims and legal actions of the Client shall lapse if they are not brought against the Contractor before court within two (2) months after their creation.
9.2. If one or more of the provisions of these Terms and Conditions are void, voidable or otherwise unenforceable in law, the other provisions shall remain fully effective. The parties will replace the relevant provision(s) in consultation with another provision that corresponds to the purport of the replaced provision(s) wherelegally possible.
9.3. The legal relationship between the Parties is governed by Dutch law, to the exclusion of the Vienna Sales Convention.
9.4. All legal or factual disputes relating to an Offer or Agreement shall be settled by the competent court in the district in which the Contractor has its registered office.
Duly drawn up at Arnhem on 7 November 2019