GENERAL TERMS AND CONDITIONS
Digital Newsgroup B.V. (DNG)
1. APPLICABILITY
1.1 These General Terms and Conditions apply to all Assignments.
1.2 The client's general terms and conditions are not applicable and are explicitly rejected by DNG.
1.3 The Assignment will be executed by us in accordance with the applicable maximum liability as per our liability insurance and relevant (inter)national laws and regulations.
1.4 If one or more provisions of these general terms and conditions are null and void or annulled, the remaining provisions of these general terms and conditions will continue to apply.
2. FORMATION OF THE ASSIGNMENT
2.1 The Assignment is established at the moment the signed written agreement, in which the Assignment is documented, is returned to us, subject to the provisions of 2.2 below.
2.2 You are responsible for the description of the assignment and the marketing budgets to be deployed by DNG for you, and for the decisions you make or wish to make based on and/or in part based on our work.
2.3 The marketing budgets can be adjusted upwards by you at any time.
2.4 Amendments to the agreement are valid if they are documented in writing and/or by email.
3. YOUR OBLIGATIONS
3.1 If your cooperation is required within the scope of an Assignment, you shall provide all the data and documents that we need for the proper and timely execution of the Assignment, in the desired form and manner.
3.2 The Assignment is executed by us based on information provided to us within the scope of the Assignment, including discussions we have with you or, at your request, with third parties. You guarantee that the information provided by you is accurate and complete. You agree that if we receive information from third parties within the scope of the assignment, we will assume, without further verification, that this information is accurate and complete, unless explicitly stated otherwise in the assignment confirmation.
3.4 Any additional costs and damages arising from delays in the execution of the Assignment, caused by the failure to provide requested information, facilities, and/or employees in a timely or proper manner, will be your responsibility and risk.
3.5 You shall promptly inform us about changes in your legal structure and control relationships within the group to which you belong, as well as any other (financial) partnerships in which you participate or are part of, in the broadest sense of the word, and about other facts and circumstances that may be relevant to the execution of the Assignment, to enable us to comply with independence requirements.
3.6 DNG has your permission to collect, process, analyze, and combine data within the scope of the agreement for the purpose of executing and optimizing the service.
3.7 For assignments carried out at your location, you shall provide office space and electronic communication means that we deem necessary or useful for executing the Assignment, and which comply with all (legal) requirements.
3.8 You guarantee that you hold all intellectual and industrial property rights to images, products, brands, logos, and other distinctive signs shared with DNG.
3.9 You guarantee that your Website(s) comply with applicable laws and regulations, particularly that these website(s) do not infringe on public order, morality, or the rights of third parties.
4. EXECUTION OF THE ASSIGNMENT
4.1 All work performed by us will be carried out to the best of our ability and skill, according to the requirements of good workmanship. Our (intended) work constitutes a best-efforts obligation.
4.2 We determine the manner and by which persons the Assignment is executed. In situations where it is explicitly intended that the Assignment is carried out by a specific individual, the applicability of articles 7:404 and 7:407 paragraph 2 of the Dutch Civil Code is excluded.
4.3 DNG may subcontract and transfer parts of the Agreement to a third party at any time.
4.4 Our administration (including emails and digital scans of, for example, assignment letters) constitutes full evidence against you, unless proven otherwise by you.
5. CONFIDENTIALITY AND DATA
5.1 Unless (i) any provision from (inter)national law or (professional) regulations requires disclosure, or (ii) we or persons associated with or employed by us act in a disciplinary, civil, administrative, and/or criminal procedure where this information may be relevant, we and the persons engaged by us shall not disclose or provide confidential information and personal data to third parties other than those mentioned in this article 5. We comply with the General Data Protection Regulation (“GDPR”) in performing the work.
5.2 You agree that within the scope of: (i) an Assignment provided by you to us, (ii) complying with our legal obligations, (iii) risk management and quality review requirements, and (iv) internal business purposes, we may process confidential information and personal data concerning you and/or persons (formerly) employed by, or for, or associated with you, your clients or third parties, including sharing this data with:
(a) other DNG teams not involved in the execution of the Assignment; and
(b) other entities affiliated with DNG (Holding);
(c) if necessary, with parties involved in the execution of the Assignment; and
(d) subcontractors and IT service providers; and
(e) third parties for conducting (scientific) research to ensure the quality of our services; and
(f) our insurers or legal or financial advisors.
5.3 We will take appropriate measures to protect the confidential information and personal data and inform our engaged third parties and employees about the confidential nature of the information.
5.4 The processing of personal data by us takes place in accordance with applicable (inter)national laws and (professional) regulations on data protection. You accept that these General Terms and Conditions also serve as a Data Processing Agreement between the parties under the General Data Protection Regulation.
5.5 Unless there is (inter)national law or (professional) regulation that obliges you to disclose, or unless prior written permission has been given by us, you shall not disclose or provide information regarding the Assignment, the contents of reports, advice, or other communications from us to third parties.
5.6 Parties will impose their obligations under this article on third parties engaged by them.
5.7 Parties guarantee the confidentiality of the financial, technical, and commercial data or other information related to the activities of the other party provided in the context of the conclusion and execution of the Agreement.
5.8 Parties guarantee the confidentiality of the content of the Agreement.
5.9 You will treat all data and documents provided by DNG – in the broadest sense of the word – including results and statistics, as well as the applicable rates, as confidential information unless DNG independently chooses to disclose this via its website.
5.10 You are responsible for the protection of personal data on the pages of your Website(s) and must apply a proper policy for the protection of personal data. You commit to including a personal data protection policy on your website(s), clearly indicating that DNG uses anonymous cookies for remarketing purposes. You also commit to informing your users about the various options for managing cookies. DNG cannot be held liable for your processing of (personal) data.
5.11 You indemnify DNG against all possible claims regarding infringement of copyrights, patents, or other rights of third parties.
INTELLECTUAL PROPERTY
6.1 We retain all intellectual property rights concerning products of the mind that we use, have used, are developing, or have developed in the context of executing the Assignment, and for which we hold or can enforce copyrights or other intellectual property rights.
6.2 We remain the owner or holder of all intellectual and industrial property rights concerning the DNG Website and our software or its components. It is not permitted to disclose our database or copy the data.
6.3 DNG also retains all intellectual property rights for provided data and documents—in the broadest sense of the word—including results and statistics, as well as applicable rates being confidential data.
6.4 It is permitted to contact our partners directly as mentioned in our proposals and software.
6.5 It is expressly prohibited to reproduce, disclose, or exploit products, including but not limited to computer programs, automation techniques, system designs, systems, advertising campaigns, tracking scripts, content, software, methods, advice, (model) contracts, brands, and logos, and other intellectual products from us, whether or not with the involvement of third parties. Reproduction and/or disclosure and/or exploitation are only permitted after our prior written consent.
6.6 You have the right to reproduce written documents for your internal use, as far as fitting within the purpose and duration of the Agreement.
7 FEES/PAYMENT
7.1 You will reimburse DNG for placements per blog and any agreed additional work.
7.2 The fee owed by you to DNG will be billed monthly by DNG, with a payment term of 14 days after notification.
7.3 In the case of a joint Assignment, all Clients, insofar as the work is performed for these joint Clients, are jointly and severally liable for the payment of the full invoice amount to us.
7.4 You are responsible for the completeness and correctness of the provided bank details. If you have a withdrawal reversed, blocked, or if an automatic debit transaction fails twice, we are entitled to charge you €45 excluding VAT per transaction as administrative costs.
7.5 Our fee includes our expenses, including declarations of third parties engaged by us and excluding VAT and other charges that may be imposed by the government. The aforementioned expenses, declarations, and charges will be passed on to you by us.
7.6 If, after the Assignment is established but before it is fully executed, fee-determining factors, such as wages and/or prices, change, we have the right to adjust the previously agreed fee accordingly.
7.7 Payments must be made without deduction, discount, or set-off within 14 days of the invoice date. Payment must be made in the currency indicated on the invoice, by transfer to a bank account designated by us.
7.8 We maintain a final complaint period of seven (7) days from the date of the invoice. Complaints or objections against the amount of the submitted invoices will only be considered within the complaint period of 7 days after the invoice date and do not suspend your payment obligation.
7.9 Suspensions of Advertising accounts, too low or no expenditure of marketing budgets, or inability to advertise cannot be a reason for complaints about the service as efforts to advertise have been made.
7.10 If your financial position and/or payment behavior gives us reason to do so, we are entitled to demand that you immediately provide (additional) security in a form to be determined by us and/or pay an advance. If you fail to provide the required security or advance, we are entitled, without prejudice to our other rights, to immediately suspend the further execution of the Assignment and your advertising campaigns, and everything you owe us for any reason whatsoever becomes immediately due and payable.
7.11 After the expiration of the final payment term, we will initiate an external collection process, whereby all judicial and extrajudicial (collection) costs that we incur or have incurred in connection with your non-compliance with your (payment) obligations are at your expense. The Decree on the reimbursement of extrajudicial collection costs, which contains further rules regarding the reimbursement of extrajudicial costs, does not apply. DNG reserves the right to claim the actual costs incurred, including late payment interest charged at three (3) times the statutory interest rate on the amount due from the first day of delay until full payment and a fixed compensation for collection costs of 15% of the outstanding amount with a minimum of EUR 250, excluding VAT.
7.12 If you fail to meet your obligations in whole or in part, DNG is entitled to stop its activities and charge the fee for the remaining months, plus €250 (excluding VAT) administration costs in one lump sum. This amount will be paid by you within 14 days.
8 COMPLAINTS
8.1 You indemnify DNG against all complaints and claims regarding access to and sales on your Website(s) and the use by DNG of the information provided by you. Without excluding other complaints and claims, indemnification always applies to complaints and claims arising from:
- infringement of an intellectual or industrial property right of a third party;
- infringement of personal rights;
- unfair or parasitic competition;
- infringement of public order or good morals;
- infringement of privacy laws and regulations regarding the protection of personal data, an infringement of the provisions of consumer law;
- infringement of legal advertising rules and provisions regarding the display of prices.
In such cases, you will take care of DNG's defense and pay all costs for damages, legal assistance, and others that DNG. BV is convicted of or has to incur in this context.
8.2 Complaints regarding the work performed and/or the invoice amount must be made known to us in writing within 7 days after the date of dispatch of the documents or information that you complain about, or within 7 days after discovering the defect, the error, or the shortcoming, if you demonstrate that you could not reasonably have discovered the defect, error, or shortcoming earlier.
8.3 Complaints as referred to in the first paragraph do not suspend your payment obligation. Under no circumstances are you entitled to delay or refuse payment for other services delivered by us to which the complaint does not relate based on a complaint about a particular service.
8.4 In the case of a justified and timely complaint, you have the choice between adjusting the charged fee, improving or re-performing the rejected work free of charge, or wholly or partially not (any longer) executing the Assignment against proportional restitution of the fee already paid by you.
9 DELIVERY TERM
9.1 If you owe an advance payment or need to provide information and/or materials necessary for the execution, the term within which the work must be completed does not commence until the payment has been fully received by us, or the information and/or materials have been entirely made available to us.
9.2 The terms within which the work must be completed are only considered fatal terms if this has been agreed upon in writing in advance.
9.3 The Assignment cannot—unless it is established that execution is permanently impossible—be
terminated by you due to exceeding the term, unless we also fail to execute the Assignment, in whole or in part, within a reasonable period after the written notice following the agreed delivery term.
10 (INTERIM) TERMINATION OF THE ASSIGNMENT
10.1 Parties can terminate the Assignment in writing with a notice period of one month.
10.2 Interim termination or pausing is possible, taking into account a notice period of one month.
10.3 Parties can terminate the Assignment without notice and without judicial intervention by written notification with immediate effect in the event that the other party is granted suspension of payments, is declared bankrupt, or if its business is liquidated or terminated.
10.4 If you proceed to premature termination, we are entitled to compensation for the work already performed, the notice period, and costs that we reasonably must incur as a result of the early termination of the Assignment (such as costs related to subcontracting), unless there are facts and circumstances underlying the termination attributable to us. If we have terminated prematurely, you are entitled to our cooperation in transferring the work to third parties, unless there are facts and circumstances underlying the termination attributable to you.
10.5 If a usage ban on your Website(s) is pronounced as a result of legal proceedings or such a ban results from a settlement with a third party, DNG can terminate the Agreement immediately without notice, but DNG will charge the notice period. You cannot claim any compensation for amounts charged to you under the Agreement.
10.6 Upon termination of the agreement, the Advertiser Accounts created by DNG, including the systematic way of building the Advertising Campaign, will not be transferred. These remain the intellectual property of DNG. The Client is not allowed to use, share, or disclose these in any form to third parties.
10.7 If you fail to comply with any contractual obligations, DNG may terminate the Agreement immediately by email or other written documents. In this case, DNG is not bound by a notice period; article 7.12 applies without limitation.
11 LIABILITY
11.1 We will perform our work to the best of our ability and with the care that can be expected from us. If errors are made because you or a third party provide incorrect or incomplete information, we are not liable for the resulting damage. Our liability is limited to an amount equal to three times the fee you have paid or are still owed for the specific work performed under the Assignment from which the liability arises, with a maximum of € 1,500 in the case of other Assignments. If the Assignment has a longer duration than twelve months, the total liability is limited to a maximum of three times the fee you have paid or are still owed over the last twelve months for the specific work performed under the Assignment from which the liability arises, with a maximum of € 10,000 in the case of another Assignment with a duration longer than twelve months.
11.2 If the Assignment is carried out for several (legal) persons, the liability limitation applies to the Assignment for all involved (legal) persons collectively. It is up to that group of involved (legal) persons to divide the maximum payable compensation among themselves in the event of liability.
11.3 You indemnify us against all claims from third parties that may arise due to your non-compliance or incorrect compliance with any obligation from the Assignment and/or these General Terms and Conditions. This indemnity is also stipulated for the benefit of the directors, shareholders, or employees engaged by us for the execution of the Assignment and third parties, including other DNG firms, who can directly invoke this indemnity. Notwithstanding the foregoing, the indemnity does not apply if and to the extent that it is contrary to mandatory (international) law or (professional) regulations.
11.4 You and/or your group companies will exercise any claims or recourse rights solely against us and not against third parties engaged by us, our (directors of) shareholders, directors, or employees.
11.5 We are not liable for advertising expenditures, returns, sales, consequential, indirect, business, or punitive damages and/or loss of profit.
11.6 We reserve the right to use third parties for (part of) the execution of the Assignment. The execution of the Assignment takes place under our exclusive responsibility, and you and/or your group companies will not hold DNG's involved partners or employees liable (neither contractually, extra-contractually, nor otherwise) regarding the execution of the Assignment. Third parties, their partners, and employees can invoke the foregoing as if they were a party to the Assignment. We are entitled to compensation for damages and costs resulting from a violation of this provision.
11.7 Your rights of action and other powers against us, for any reason whatsoever arising from the Assignment, expire one month after the damage for which we are held liable first manifested itself and, in any case, one year after the damage-causing event occurred.
12 CONTRACT TRANSFER
It is not permitted to transfer (any obligation from) the Assignment to third parties unless we explicitly agree in writing. We are entitled to attach conditions to this permission, which will not be unreasonably withheld. You are, in any case, obliged to impose all relevant (payment) obligations from the Assignment and these General Terms and Conditions on the third party. You remain jointly and severally liable for the obligations from the Assignment and the General Terms and Conditions alongside this third party at all times.
13 INTERNET USAGE
Parties may communicate with each other via electronic communication means. Parties acknowledge that the use of electronic communication means entails risks such as, but not limited to, distortion, delay, interception, manipulation, loss of data, incompleteness of data, and viruses. Parties hereby determine that they will not be liable to each other for damage resulting from the use of electronic communication means. Parties will do or refrain from doing all that is reasonably expected of them to prevent the occurrence of the aforementioned risks.
14 WAIVER OF RIGHTS
14.1 The failure to enforce any right or authority will not affect or limit our rights and authorities under the Assignment. Waiver of any provision or condition in the Assignment will only be effective if it is expressly made in writing.
14.2 You expressly agree that we also perform work for other (possibly competing) Clients. These services to third parties do not affect the quality and performance for the benefit of the Client.
15 CONVERSION
If and to the extent that any provision of the Assignment cannot be invoked on the grounds of reasonableness and fairness or its unreasonably onerous nature, the relevant provision will, in any case, be assigned a meaning corresponding as much as possible to its content and intent, so that it can be invoked.
16 SURVIVAL
The provisions of the Assignment, which are expressly or implicitly intended to remain in force after termination of the Assignment, will remain in force and continue to bind both parties after the termination.
17 CONFLICTING CLAUSES/PRIORITY
If these General Terms and the written agreement of the Assignment contain conflicting terms, the terms included in the written agreement of the Assignment prevail. Deviations from these General Terms and Conditions can only be made in the written agreement of the Assignment.
18 RECRUITMENT BAN
During the term of the Agreement and within one year after the end of the Agreement, you are not permitted to directly or indirectly enter into an employment agreement with employees of DNG or companies affiliated with DNG. The Client is also strictly prohibited from inducing DNG personnel—or personnel of an affiliated organization—to join the Client or another employer. In case of violation/non-compliance with the provisions of this article, the Client will forfeit to DNG an immediately due and payable fine of €15,000.00 per violation/non-compliance, increased by €250 for each day the violation/non-compliance continues, regardless of whether these are regular working days or not, without prejudice to the employer's authority to claim performance of the relationship clause as well as compensation for the full damage.
19 FORCE MAJEURE
19.1 In addition to the provisions of Article 6:75 BW, a shortcoming of DNG in the fulfillment of any obligation towards the Client cannot be attributed to DNG in the event of a circumstance independent of the will of DNG, which prevents the fulfillment of its obligations towards the Client in whole or in part, or as a result of which the fulfillment of its obligations cannot reasonably be required from DNG. Such circumstances include failures by suppliers or other third parties, disruptions in software systems, non-functioning advertising systems, power outages, computer viruses, strikes, mandatory holidays, and work interruptions.
19.2 If a situation referred to in Article 19.1 occurs, as a result of which DNG cannot fulfill its obligations, these obligations will be suspended as long as DNG cannot fulfill its obligations. If the situation referred to in the previous sentence lasts for ninety (90) calendar days, both parties have the right to dissolve the agreement. DNG BV is not liable for any damage, even if DNG benefits from the force majeure situation.
20 AMENDMENT OF THE GENERAL TERMS AND CONDITIONS
DNG reserves the right to change these General Terms and Conditions at its discretion. The Client will be notified of this change via email. The changes are immediately applicable.
21 APPLICABLE LAW AND FORUM CHOICE
21.1 All Assignments and negotiations between parties are governed by Dutch law.
21.2 All disputes related to Assignments between parties will initially be settled by the competent court in Utrecht.
22 DEFINITIONS
In these General Terms and Conditions, the following definitions apply:
22.1 You, you, or Client: the party for whom the Assignment is performed.
22.2 We, we, or us: the entities to whom the Assignment is granted: DNG.
22.3 Assignment: the oral or written agreement, whereby we undertake to perform work for you.
22.4 Advertising expenses: all amounts owed by the Client to an Advertising account based on the referral of visitors from the Advertising campaigns to the Client's Website.
22.5 Advertising campaigns: all elements related to advertising through the advertising accounts.
22.6 Service: the effort(s) covered by this Agreement and provided by DNG.
22.7 Client Data:
- Data collected through its own means;
- Data collected thanks to the Tracking Script provided by DNG and installed on the Client's Website(s) regarding visits and sales made.
22.8 DNG Data:
- Arranged (non-personally identifiable) data concerning all internet users using the Client's Website(s) and all product data in the Client's Product Catalog;
- The arranged (non-personally identifiable) data, product data, and financial data collected during the collaboration.
- All data resulting from experience and know-how in the field of e-commerce, the historical data of the Advertising Platforms, and its technologies to expand the data.
22.9 Tracking: the automated recording of Conversions achieved through the Advertising accounts.
22.10 Tracking Script: any technology that enables the exchange of conversion data between the advertising accounts, DNG software, and the Client's Website.
22.11 Conversions: the number or percentage of website visitors who take an action. An action is any act by the website visitor, including but not limited to, purchasing from an online store, filling out a quote request, filling out a form, subscribing to a newsletter, clicking a contact button, etc.
