Terms and Conditions
Digital Newsgroup B.V. (DNG)
APPLICABILITY
1.1 These General Terms and Conditions apply to all Assignments.
1.2 The Client's general terms and conditions do not apply and are expressly rejected by DNG.
1.3 The Assignment will be carried out by us in accordance with the applicable maximum liability in accordance with our liability insurance and applicable (inter)national laws and regulations.
1.4 If one or more provisions of these terms and conditions are void or annulled, the remaining provisions of these terms and conditions shall remain in full force and effect.
2 CONCLUSION OF THE AGREEMENT
2.1 The Assignment is established at the moment the written agreement in which the Assignment is recorded, signed by you and us, has been received back by us, without prejudice to what is stipulated below in 2.2.
2.2 You are responsible for the assignment description and the marketing budgets that DNG will deploy for you, and for the decisions you make or wish to make as a result of and/or based on (partially) our work.
2.3 Marketing budgets can be adjusted upwards by you at any time.
2.4 Amendments to the agreement are valid if they are recorded in writing and/or by email.
3 UNIVERSITY OBLIGATIONS
3.1 If your cooperation is required in the context of an Engagement, you will provide us with all data and documents that we need for the correct and timely execution of the Engagement in a timely manner and in the form and manner we require. When using DNG Software, you are responsible for correct and timely data.
3.2 The Assignment will be carried out by us on the basis of information made available to us in the context of the Assignment, including discussions we hold with you or, at your request, with third parties. You warrant that the information provided by you is accurate and complete. You agree that if we receive information from third parties in the context of the assignment, we will assume that this information is accurate and complete without further verification, unless explicitly stated otherwise in the order confirmation.
3.4 Any additional costs and damages resulting from delays in the execution of the Assignment, caused by the failure to provide the requested information, facilities, and/or personnel, or by providing them not in a timely or proper manner, shall be at your expense and risk.
3.5 You shall inform us without delay of (changes in) your legal structure and the relationships of control within the group to which you belong, as well as of all other (financial) collaborations in which you participate or of which you form part, in the broadest sense of the word, and of any other facts and circumstances which may be relevant with regard to the performance of the Engagement, in order to enable us to comply with the independence regulations.
3.6 DNG is authorized by you, under the agreement, to collect, process, analyze, and combine data with DNG's data for the execution and optimization of services.
For Assignments performed by us at your location, you will provide office space and electronic communication facilities that, in our judgment, are necessary or useful for the execution of the Assignment and that comply with all (statutory) requirements.
3.8 You guarantee that you own 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, and in particular that these website(s) do not violate public order, good morals, or the rights of third parties.
4 EXECUTION OF THE ORDER
4.1 All work performed by us shall be carried out to the best of our knowledge and ability, in accordance with the requirements of good craftsmanship. Regarding our (intended) work, there is an obligation to use best efforts.
4.2 We determine the manner and by whom the Assignment will be performed. In situations where it is expressly intended that the Assignment be performed by a specific natural person, the applicability of Articles 7:404 and 7:407 paragraph 2 of the Dutch Civil Code is excluded.
4.3 DNG may at any time subcontract and transfer (parts of) the Agreement to a third party.
4.4 Our records (including emails and digital scans of assignment letters, for example) will serve as full proof against you, unless you provide evidence to the contrary.
5 CONFIDENTIALITY AND DATA
5.1 Unless (i) any provision of national or international legislation or (professional) regulations obliges us to disclose; or (ii) we or persons affiliated with or employed by us are involved in disciplinary, civil, administrative, and/or criminal proceedings where this information may be relevant, we and the persons engaged by us will not disclose confidential information and personal data to third parties other than those mentioned in this Article 5. We will act in accordance with the General Data Protection Regulation (“GDPR”) in the performance of our services.
5.2 You agree that in connection with: (i) an Assignment given by you to us, (ii) compliance 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 individuals (formerly) employed by, or for, or associated with you, your clients, or third parties, including sharing this data with:
(a) other DNG teams than those 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 research (scientific or otherwise) to be conducted by them to ensure the quality of our services; and (f) our insurers or legal or financial advisors.
5.3 We shall take appropriate measures to protect confidential information and personal data and inform the third parties and employees engaged by us about the confidential nature of the information.
5.4 We process personal data in accordance with applicable (inter)national legislation and (professional) regulations regarding the protection of personal data. You accept that these General Terms and Conditions also apply as a Processor Agreement between parties in the context of the General Data Protection Regulation.
5.5 Unless international or national laws or professional regulations obligate you to disclose information, or unless we have granted prior written consent, you shall not disclose or provide to third parties any information relating to the Assignment, the content of reports, advice, or other expressions from us, whether written or not.
5.6 The Parties shall impose their obligations under this Article on third parties engaged by them.
5.7 The Parties guarantee the confidentiality of financial, technical, and commercial data or other information relating to the activities of the other Party provided by the other Party in connection with the conclusion and execution of this Agreement.
5.8 The Parties guarantee the confidentiality of the content of the Agreement.
5.9 U shall treat all data and documents provided by DNG – in the broadest sense of the word – including results and statistics, as well as applicable rates, as confidential data, unless DNG independently chooses to disclose them via its website.
5.10 You are responsible for the protection of personal data on your Website(s) pages and must implement sound personal data protection policies. You undertake to include a personal data protection policy on your website(s), clearly indicating that DNG uses anonymous cookies for remarketing purposes. You further undertake to inform your users about the various cookie management options. DNG can in no event be held liable for your processing of (personal) data.
5.11 You shall indemnify DNG against all possible claims concerning infringement of copyrights, patents, or other third-party rights.
6. INTELLECTUAL PROPERTY
6.1 We reserve all intellectual property rights concerning works of the mind that we use or have used and/or develop and/or have developed in the context of the execution of the Assignment, and with respect to which we hold or can enforce copyright or other intellectual property rights.
6.2 We are and remain the owner or holder of all intellectual and industrial property rights relating to the DNG Website and our software or its component parts. It is not permitted to make our database public or to copy the data.
6.3 DNG also retains all intellectual property rights for data and documents provided, and the applicable rates are confidential information.
6.4 It is not permitted to approach our partners directly, as mentioned in our proposals and software.
6.4 You are expressly prohibited from reproducing, disclosing, or exploiting our 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 property, in the broadest sense of the word, whether or not with the involvement of third parties. Reproduction and/or disclosure and/or exploitation is only permitted with our prior written consent.
6.5 You have the right to reproduce written documents for your own internal use, as far as is appropriate within the scope and duration of the Agreement.
7 Honorarium/Payment
7.1 You will reimburse DNG for the placements per blog and any agreed-upon additional work.
7.2 The fee owed by you to DNG will be invoiced by DNG once a month, with a payment term of 14 days from the date of notification.
7.3 In the event of a joint Assignment, all Clients shall be jointly and severally liable for the payment of the full invoice amount to us, to the extent the work has been performed for these joint Clients.
7.4 You are responsible for the completeness and accuracy of the bank details provided. Should you cancel a direct debit, block it, or if an automatic collection transaction fails twice, we are entitled to charge you €45 excluding VAT per transaction for administrative costs.
7.5 Our fee includes our expenses, including reimbursements for third parties engaged by us, and excludes VAT and other levies that may be imposed by the government. We will bill you for the aforementioned expenses, reimbursements, and levies.
7.6 If, after the conclusion of the Assignment but before the Assignment has been fully executed, factors determining the rate, such as wages and/or prices, change, we shall have the right to adjust the previously agreed rate accordingly.
7.7 Payments shall be made without deduction, discount, or set-off within 14 days of the invoice date. Payment shall be made in the currency indicated on the invoice, by means of transfer to a bank account designated by us.
7.8 We have an external complaint period of seven (7) days from the date of the invoice. Complaints or objections regarding the amount of submitted invoices will only be processed within the complaint period of 7 days after the invoice date and do not suspend your payment obligation.
7.9 Suspensions of Ad Accounts, underspending or not spending marketing budgets, or being unable to advertise cannot be a reason to claim the services rendered, as an effort to advertise was made.
7.10 If your financial position and/or your payment behavior gives us reason to do so in our judgment, we are entitled to demand that you immediately provide (additional) security in a form to be determined by us and/or make an advance payment. If you fail to provide the requested security or to make the requested advance payment, we are entitled, without prejudice to our other rights, to immediately suspend the further execution of the Order and your advertising campaigns, and all that you owe us for any reason whatsoever is immediately due and payable.
7.11 After the final payment deadline has passed, we will initiate an external collection process, whereby all judicial and extrajudicial (collection) costs incurred by us in connection with your non-fulfillment of your (payment) obligations will be at your expense. The Decree on compensation for extrajudicial collection costs, which contains further rules regarding the compensation of extrajudicial costs, is not applicable. DNG reserves the right to claim the actual costs incurred, and we will also charge interest on late payments at a rate 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% on the outstanding amount with a minimum of EUR 250,- excluding VAT.
7.12 If you do not fulfill your obligations or do not fulfill them completely, DNG is entitled to stop its work and the payment for the remaining months, plus €250 (excl. VAT)
to charge administrative costs in one go. You will pay this amount within 14 days.
8 COMPLAINTS
8.1 You indemnify DNG against all claims and demands relating to access to and sales on your Website(s) and DNG's use of the Information provided by you. Without prejudice to other claims and demands, such indemnity shall always apply to claims and demands arising from:
infringement of a third party's intellectual or industrial property rights;
infringement of personality rights;
unfair or parasitic competition;
breach of public order or good morals;
breach of privacy and data protection rules, a breach of the provisions of consumer law;
infringement of statutory advertising rules and price display provisions;
In such cases, you shall be responsible for the defense of DNG and shall pay to DNG all costs for damages, legal assistance, and other costs to which DNG. BV is condemned or which they have 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 of the dispatch date of the documents or information you are complaining about, or within 7 days of the discovery of the defect, error, or omission, if you can demonstrate that you could not reasonably have discovered the defect, error, or omission earlier, under penalty of forfeiture of all claims.
8.3 Complaints as referred to in the first paragraph do not suspend your payment obligation. Under no circumstances are you entitled to postpone payment or refuse payment for other services provided by us based on a complaint regarding a specific service, to which the complaint does not apply.
8.4 In the event of a valid and timely complaint, you have the choice between an adjustment of the invoiced fee, the free of charge correction or re-performance of the rejected work, or the partial or full non-performance of the Assignment against proportional reimbursement of the fee already paid by you.
9 DELIVERY TERMS
9.1 If you owe an advance payment or need to provide information and/or materials required for execution, the period within which the work must be completed will not commence until the payment has been received by us in full, or the information and/or materials have been made fully available to us, respectively.
The deadlines within which the work must be completed shall only be considered final if this has been agreed upon in writing beforehand.
9.3 The Order cannot be terminated by you due to exceeding the deadline unless execution is definitively impossible, unless we also fail to execute the Order, or fail to execute it in full, within a reasonable period granted to us in writing after the expiry of the agreed delivery period.
10 (INTERIM) TERMINATION OF THE CONTRACT
10.1 The Parties may terminate the Agreement in writing subject to a notice period of 1 month.
10.2 Interim termination or interim suspension is possible with a notice period of 1 month.
10.3 Parties may terminate the Agreement in whole or in part without prior notice and without judicial intervention by written notification with immediate effect in the event the other party is granted – whether provisionally or not – a suspension of payments, if bankruptcy is granted with respect to the other party, or if its business is liquidated or terminated.
10.4 If you have terminated prematurely, we are entitled to compensation for work already performed, notice period, and costs that we reasonably incur as a result of the early termination of the Assignment (including, but not limited to, costs related to subcontracting), unless facts and circumstances attributable to us underlie the termination. If we have terminated prematurely, you are entitled to our cooperation in transferring work to third parties, unless facts and circumstances attributable to you underlie that termination.
10.5 In the event that a ban on the use of your Website(s) is imposed as a result of legal action or such a ban arises from a settlement agreement with a third party, DNG may terminate the Agreement immediately, without notice, but DNG will charge the notice period. You cannot claim any compensation for the amounts charged by you under the Agreement.
10.6 Upon termination of the agreement, the Advertiser Accounts created by DNG, including the systematic method of building advertising campaigns, shall not be transferred. These remain the intellectual property of DNG. The Client is not permitted to use, share, or disclose them to third parties in any form whatsoever.
10.7 If you fail to fulfill one of the contractual obligations, DNG may terminate the Agreement with immediate effect by email or any other written document. In this case, DNG is not bound by a notice period; Article 7.12 applies in full in this case.
11 LIABILITY
11.1 We shall perform our work to the best of our ability, exercising the care that may be expected of us. If errors are made because you or a third party provides us with incorrect or incomplete information, we shall not be liable for any damage resulting therefrom. Our liability is limited to the amount equal to three times the fee you have paid and/or are still due for the specific work performed under the Engagement from which the liability arises, with a maximum of €1,500 in the case of another Engagement. If the Engagement has a duration of more than twelve months, the total liability under the Engagement shall be limited to a maximum of three times the amount of the fee that you have paid and/or are still due to us for the last twelve months for the specific work performed under the Engagement from which the liability arises, with a maximum of € 10,000 in the case of an Other Engagement with a duration of more than twelve months.
11.2 If the Assignment is performed for multiple legal entities, the limitation of liability with regard to the Assignment shall apply to all involved legal entities collectively. It is up to that group of involved legal entities themselves to divide the maximum compensation to be paid among themselves in the event of liability.
11.3 You shall indemnify us against all third-party claims that may arise as a result of your failure to perform or incorrect performance of any obligation under the Assignment and/or these General Terms and Conditions. This indemnity is also stipulated for the benefit of the shareholders, directors, or employees of ours engaged by us for the performance of the Assignment and third parties, including other DNG firms, who can directly invoke this indemnity. Notwithstanding the foregoing, the indemnity shall not apply if and to the extent that it conflicts with mandatory (inter)national statutory or (professional) regulations.
11.4 You and/or your group companies will exclusively exercise any claims or rights of recourse against us and not against third parties engaged by us, our shareholders (directors), directors, or employees.
11.5 We are not liable for advertising expenses, returns, sales, consequential, indirect, business, or punitive damages, and/or loss of profits.
11.6 We reserve the right to use third parties in (part of) the performance of the Assignment. The performance of the Assignment shall be under our sole responsibility, and you and/or your group companies shall not hold DNG's involved partners or employees liable (whether contractually, extra-contractually, or otherwise) in connection with the performance of the Assignment. Third parties, their partners, and employees may invoke the foregoing as if they were a party to the Assignment. We are entitled to compensation for damages and costs resulting from a breach of this provision.
11.7 Your rights and other powers against us, arising from the Assignment for any reason whatsoever, expire one month after the damage for which we are held liable first manifested, and in any event one year after the damage-causing event occurred.
11.8 Placed publications and links are sold as permanent unless a specific period is explicitly stated. DNG guarantees, however, that a live link will remain active for a minimum of 12 months, unless there is a force majeure event as described in Article 19.3. If a publisher removes the link within this period, DNG will, upon request, offer a replacement link of comparable quality.
11.9 Upon termination of the cooperation, all previously paid placement links and completed work will remain available online, unless otherwise agreed in writing or unless force majeure applies.
as described in article 19.3. DNG is not permitted to remove the placed links without prior written consent from the customer. DNG undertakes to
placed links and to respect the work.
12 CONTRACT ASSUMPTION
You are not permitted to transfer (any obligation from) the Assignment to third parties, unless we expressly agree to this in writing. We are entitled to attach conditions to this permission, which will not be unreasonably withheld. In any event, you undertake to impose all relevant (payment) obligations from the Assignment and these General Terms and Conditions on the third party in that case. You will remain jointly and severally liable with this third party at all times for the obligations arising from the Assignment and the General Terms and Conditions.
13 INTERNET USAGE
The parties may communicate with each other through electronic means of communication. The parties acknowledge that the use of electronic means of communication entails risks such as, but not limited to, distortion, delay, interception, manipulation, data loss, data incompleteness, and viruses. The parties hereby agree towards each other not to be liable for any damage that may arise for either of them as a result of the use of electronic means of communication. The parties will do or omit everything that can reasonably be expected of each of them to prevent the occurrence of the aforementioned risks.
14 WAIVER OF RIGHTS
14.1 The failure to enforce any right or power immediately will not affect or waive any right or power under the Agreement. A waiver of any term or condition of the Agreement will only be effective if it is in writing and expressly stated.
14.2 You expressly agree that we may perform services for other (potentially competing) Clients. These services to third parties do not detract from the quality and performance for the Client.
15 Conversions
If and to the extent that any provision of the Agreement cannot be invoked on grounds of reasonableness and fairness or its unreasonable onerous nature, the relevant provision shall in any event be given a meaning as closely as possible corresponding to its content and purport, so that it can be invoked.
16 WORKSHOP
The provisions of the Agreement, which are expressly or implicitly intended to remain in effect after the termination of the Agreement, shall remain in effect thereafter and shall continue to bind both parties.
17 OPERATIVE CLAUSES/PRIORITY
If these General Terms and Conditions and the written agreement for the Assignment contain conflicting terms, the terms in the written agreement for the
Order accepted subject to conditions. These General Terms and Conditions may only be deviated from in the written agreement of the Order.
18 RECRUITMENT PROHIBITION
During the term of the Contract and within one year after termination of the Contract, You shall not be permitted to enter into an employment contract 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 or companies affiliated with DNG. Client is also strictly prohibited from inducing employees of DNG - or of an organization allied with it - to enter into employment with (a company of) Client, or with another employer. If the provisions of the preceding clauses of this article are breached/not complied with, the Client shall forfeit to DNG an immediate penalty of €15,000 for each breach/ non-compliance, payable without further notice of default or judicial intervention, to be increased by €250 for each day - irrespective of whether or not it is customary to work on it - on which the breach/ non-compliance continues, and without prejudice to the employer's right to claim compliance with the non-solicitation clause instead of this penalty, as well as compensation for the full damage.
19 OVERPOWER
19.1 In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by DNG to fulfill any obligation towards the Client shall not be attributable to DNG in the event of a circumstance beyond DNG's control, which wholly or partially prevents the fulfillment of its obligations towards the Client or makes it unreasonable to expect DNG to fulfill its obligations. Such circumstances shall include failures by suppliers or other third parties, malfunctions in software systems, non-functioning of advertising systems, power outages, computer viruses, strikes, mandatory holidays, and work stoppages.
19.2 If a situation as referred to in Article 17.1 arises which prevents DNG from fulfilling its obligations, then those obligations shall be suspended for as long as DNG is unable to fulfill its obligations. If the situation referred to in the previous sentence has lasted for ninety (90) calendar days, both parties shall have the right to terminate the agreement. In that case, DNG B.V. shall not be liable for any damages, even if DNG benefits in any way as a result of the force majeure condition.
19.3 Exceptions to this shall apply exclusively if DNG has no influence on the default and could not reasonably have done anything to prevent it. This applies in particular in the following cases:
- If the breach of contract concerns the sale of a website on which an article is posted;
- If the breach of contract is the result of the insolvency of the supplier or third party;
- If the website is offline due to force majeure, such as technical malfunctions, maintenance, or other circumstances beyond DNG's control.
- If the website or service administrator has deliberately chosen other purposes for the website that fall outside the scope of DNG.
- If the breach of contract is the result of a new owner making changes to the website or the posted article without DNG's knowledge or consent.”
20 AMENDMENT OF THE GENERAL TERMS AND CONDITIONS
DNG reserves the right to amend these General Terms and Conditions at its sole discretion. The Client will be notified of any such amendment via email. The amendments shall take effect immediately.
21 GOVERNING LAW AND CHOICE OF FORUM
21.1 Dutch law applies to all assignments and negotiations between parties.
21.2 All disputes related to Assignments between parties shall initially
to be settled by the competent court in Utrecht.
22 CONCEPTS
In these General Terms and Conditions, the following terms shall have the meanings ascribed to them:
22.1 C, c of Principal: the party for whom the Project is performed.
22.2 We, us or our: the legal entity(ies) to whom the Assignment has been 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 as a result of directing visitors from the Advertising Campaigns to the Client's Website.
22.5: Advertising Campaigns: all elements relating to advertising via the ad accounts.
22.6 Service: the effort(s) to which this Agreement pertains and which are provided by DNG
22.7 Client Data:
a. data collected through its own means;
b. Data collected thanks to the Tracking Script provided by DNG and installed on the Client's Website(s) concerning visits and sales made.
22.8 DNG data:
a. aggregated (not personally identifiable) data relating to all internet users using the Client's Website(s) and all product data present in the Client's Product Catalog;
b. The arranged (anonymized) data, product data, and financial data collected during the cooperation.
c. all data derived from experience and know-how in e-commerce, historical data from the Advertising Platforms and their technologies for data expansion
22.9 Tracking: automated tracking of conversions achieved through the Ad Accounts.
22.10 Tracking Script: any technology that enables the exchange of conversion data between ad accounts, DNG software, and the Client's Website.
22.11 Conversions: the number or percentage of website visitors who take action. Action is defined as any action by the website visitor, including but not limited to, a purchase in an online store, filling out a quote request, filling out a form, signing up for a newsletter, clicking a contact button, etc.