General terms and conditions

GENERAL

1. Definitions

1.1. The following terms are capitalised in these General Terms and Conditions, both in the singular and in the plural. These terms have the following meanings:

1. Adwise: Contracted Party: Wise Fundaments B.V., and its group companies that have declared these Conditions to be applicable, acting independently or jointly;
2. Agreement: The agreement between Adwise and Client concerning provision of the Service;
3. Annex: Appendix to these conditions with specific provisions relating to the Service to be provided;
4. Client: The natural person or legal entity that has concluded, or is going to conclude, an Agreement with Adwise;
5. Conditions: These general terms and conditions of Adwise including all applicable Annexes;
6. IP Rights: All intellectual property rights and associated rights such as copyrights, trade mark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as rights to know-how and performances on a par with these rights;
7. Parties: Adwise and Client;
8. Personal Data: Each piece of information relating to an identified or identifiable natural person within the meaning of Section 1(a) of the Dutch Personal Data Protection Act;
9. Service: The Services to be provided to the Client by Adwise pursuant to the Agreement, including, if applicable, results of these Services.
   
   

2. Applicability

2.1. These General Terms and Conditions apply to and form an integral part of all offers and quotations of Adwise, Agreements and any other legal acts related thereto be-tween Adwise and the Client or its legal successor. The specific Annexes also apply as agreed between Adwise and Client. If this general part of these Conditions is contrary or incompatible with regard to any aspect with the provisions in the Annex agreed between Adwise and the Client, the provisions in the Annex(es) concerned will prevail.

2.2. If these Conditions state that an act must be carried out in writing, this is deemed to refer to email as well. Electronic communication between the Parties will be deemed to have been received on the day it was sent, unless proof to the contrary is furnished.

2.3. Any departures from these Conditions are only valid if they have been agreed explicitly in writing by Adwise and the Client, and they only apply to the specific Agreement for which they were agreed.

2.4. The Client’s generally applied purchase or other conditions do not apply to any legal relationship between the Parties.

2.5. Once these Conditions have been applied to a legal relationship between Adwise and the Client, the Client is deemed to have agreed in advance to the applicability of these Conditions to any Agreements concluded or to be concluded thereafter.

2.6. If and insofar as any provision in these Conditions is declared to be null and void or is annulled, the other provisions in these Conditions will remain in full force. In that case the Parties will consult to determine a new provision to replace the provision that is null and void or that has been annulled, thereby taking the purport of the void or annulled provision into account as far as possible.

2.7. In the event of a conflict between provisions in an Agreement and these Conditions, the provisions in the Agreement will prevail.

2.8. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is hereby excluded.

3. Quotations and formation of the agreement

3.1. Quotations and other offers by Adwise are without obligation and must be regarded as an invitation to enter into an Agreement, unless Adwise has explicitly indicated otherwise in writing.

3.2. Offers and quotations lose their validity four (4) weeks after their date, unless otherwise indicated in writing.

3.3. The Client guarantees that the details disclosed by, or on behalf of it, to Adwise, on which Adwise has based its offer, are correct and complete. If those details should prove not to be correct or complete, Adwise is entitled to modify the offer.

3.4. An Agreement is formed by written confirmation from the Client of an unmodified valid quotation and/or offer made by Adwise.

3.5. Commissions issued by the Client are irrevocable.

3.6. Adwise is authorised at all times to terminate negotiations without stating reasons and without being liable for any damage caused as a result, and without being obliged to continue negotiations.

4. Performance of the agreement and delivery

4.1. Adwise will perform the Agreement to the best of its knowledge and ability and in accordance with the standards of the profession, such on the basis of the latest scientific and technical knowledge. Adwise will endeavour to perform the tasks properly and with care, as well as to serve the Client's interests to the best of its knowledge and to strive for a useful outcome for the Client. However, Adwise can not guarantee that the Client’s desired result is always achieved.

4.2. The obligations of Adwise on the basis of the Agreement should be interpreted as a duty to perform. Any arrangements about a Service level will always be agreed in writing in a Service Level Agreement.

4.3. In the Agreement the Parties will determine the delivery term and delivery dates as well as the place and manner in which the Services will be delivered and/or provided. The duration of an assignment depends on various factors and circumstances, such as the quality of the data and information disclosed by the Client and the cooperation of the Client and relevant third parties. The aforementioned delivery terms are therefore not strict deadlines. In the event that a delivery term or other term is exceeded, or is likely to be exceeded, the Parties will consult with each other as soon as possible in order to take suitable measures. Delay, for whatever reason, with respect to agreed delivery times does not give any entitlement to compensation, unless explicitly agreed otherwise in writing.

4.4. If it has been agreed that the Agreement will be performed in phases, Adwise is authorised to postpone the commencement of the Services that form part of a subsequent phase until the Client has approved the results of the prior phase in writing and/or payed.

4.5. Adwise is not obliged to follow instructions that alter or add to the content or scope of the agreed Services; if such instructions are followed, the activities concerned will be paid in accordance with Adwise’s usual rates and Adwise will notify the Client of this situation.

4.6. Adwise is entitled to have the Agreement carried out by third parties wholly or in part, or to engage third parties for the perfor-mance of the Agreement.

4.7. Services will be deemed by the Parties to have been accepted if the Client has not substantiated in writing and in detail, within five (5) working days after delivery of the Services concerned, the reason(s) why the Services have not been accepted. If the Services are not accepted and the Client can sufficiently demonstrate that the Servi-ces provided do not fulfill the Agreement, Adwise must replace or adapt the Services within a reasonable deadline. If the Client again does not accept the Services, the Parties will perform the acceptance procedure again. This procedure will be repeated if the Client again substantiates, during the new acceptance test, the reason(s) why the Services provided do not fulfil the Agreement.

5. Prices and terms of payment

5.1. All prices are exclusive of turnover tax (VAT) and other government levies. The prices are based on performance during normal working hours.

5.2. Work which is not stated in the quotation is not covered by the Agreement and may lead to an overall price increase.

5.3. Unless explicitly agreed otherwise in writing, price indications, estimates, budgets and/or cost estimates issued by Adwise are merely for information purposes, and no rights or expectations may be derived from them. Only if Parties have so agreed is Adwise obliged to inform Client when a cost estimate or estimate will be exceeded.

5.4. All prices indicated in writing or electronically by Adwise are subject to programming and typing errors or spelling mistakes. Adwise is not bound by such errors and/or spelling mistakes.

5.5. Parties will set down in the Agreement the date or dates on which Adwise will charge the fee for Services to the Client. Client will pay invoices in accordance with the terms of payment stated on the invoice. In the absence of a specific arrangement, the Client will pay within fourteen (14) days after the invoice date. All payments will be made without any deduction, suspension or set off.

5.6. The payments made by the Client will first be used to pay all due interest and costs, and then the payable invoices which have been outstanding the longest, even if the Client states that the payment relates to a later invoice.

5.7. If the Client does not pay the amounts due on time, the Client will be in default and will owe statutory commercial interest on the outstanding amount, without any demand or notice of default being required. If after a demand the Client still fails to pay the claim, Adwise may refer the debt for collection, in which case the Client will be obliged to pay, in addition to the total amount due, all judicial and extrajudicial costs, including costs of external experts. The extrajudicial costs are set at a minimum of fifteen percent (15%) over the amount to be claimed, with a minimum of € 250 (two hundred fifty euros).

5.8. Adwise is entitled to retain Services that are still in its possession if the Client does not comply with its payment obligation, regardless of whether the arrears are related to the Services retained by Adwise.

5.9. Adwise reserves the right to charge the Client for price increases as a result of changes in taxes, changes in collective agreements, social security charges or statutory regulations, subsequent to the time of the quotation, but before the time of (partial) delivery of the Service.

5.10. During the term of an Agreement, Adwise is authorised to increase and/or index the prices for its Services each year with effect from 1 January of the previous year, in conformity with the price index figure for that preceding calendar year as published by Statistics Netherlands (CBS) (consumer price index for ‘all households’), plus a maximum of twenty-five percent (25%). Adwise is entitled to implement the cost increase at a later date if it finds this desirable from an administrative point of view.

5.11. Comments or complaints about invoices, bills and fee statements must be made known in writing within fourteen (14) days after receipt of the invoice, bill or fee statement concerned, failing which they will be deemed to have been accepted. Such complaints do not suspend the obligation to make payment.

5.12. Adwise is entitled to send the Client interim invoices and/or to invoice on the basis of advance payments, to offset or to require security for compliance by the Client.

5.13. In the event that the financial position of the Client changes during the performance of the Agreement, Adwise will be entitled to forgo further execution of the Agreement wholly or partially or to change the terms of payment.

5.14. The Client agrees to electronic invoicing by Adwise.

6. Changes to the assignment and/or extra work

6.1. If during the performance of the Agreement it appears that it is necessary for a proper execution to amend or supplement the work to be performed, the Parties shall amend the Agreement accordingly in agreement.

6.2. Adwise reserves the right, in the interests of service and in order to optimize the result for the Client, to make changes to the work without the prior consent of the Client.

6.3. The Client accepts that the time schedule of the Agreement may be affected if the scope of the Agreement is expanded and/or altered while the Agreement is still being performed. If the interim alteration affects the agreed remuneration, Adwise will report this as quickly as possible to the Client.

6.4. If on the basis of an alteration to the Agreement as a result of extra requests or wishes on the part of the Client Adwise must carry out extra work (additional work), this work will be charged to the Client on the basis of actual costs at the usual rates that apply at that time, unless explicitly agreed otherwise in writing.

7. Client obligations

7.1. The Client will ensure that all data and/or information that Adwise has indicated are necessary, or which the Client reasonably ought to understand will be necessary for the performance of the Agreement, including information about legislation or regulations to be complied with by Adwise that applies specifically to the Client’s field of work, are disclosed to Adwise in good time, and the Client will cooperate with Adwise insofar as the latter requires. Quotations and offers issued by Adwise as well as the Agreement concluded afterwards are based on the information disclosed by the Client. Adwise is not liable for loss or damage which arises due to it basing work on inaccurate and/or incomplete details and information provided by the Client.

7.2. If data needed for the performance of the Agreement is not disclosed to Adwise in good time, Adwise is entitled to suspend performance of the Agreement and/or to charge to the Client the extra costs arising from the delay at the usual rates that apply at that time.

7.3. Insofar as, within the framework of the Agreement, Adwise discloses user names and/or passwords, the Client is responsible for these user names and/or passwords and is entirely liable for any misuse made of the user names or passwords, unless such misuse is the result of intent or gross negligence on the part of Adwise.

7.4. Insofar as Adwise discloses user names and/or passwords within the framework of the Agreement, the Client is prohibited from disclosing these user names and/or passwords to third parties without Adwise’s consent.

7.5. Client indemnifies Adwise for any infringement of third party rights, including intellectual property rights, on materials and/or data provided by the Client.

7.6. The client remains at all times responsible for proper equipment and facilities that allow access to a network on which the Client can receive the services provided by Adwise.

8. (Premature) termination and the related consequences

8.1. An Agreement takes effect on the date stated in Article 3 for the period agreed in writing between the Parties and ends by operation of law on the date agreed by the Parties or when the provision of Services has been completed. If no period has been agreed upon, the Agreement is concluded for an indefinite period.

8.2. Unless explicitly agreed otherwise in writing, the Parties can terminate the Agreement prematurely in writing due regard for a period of notice of three (3) months, when the Agreement is concluded for a minimum period of one (1) year at least. For Agreements concluded for a period less than one (1) year, the period of notice is one (1) month. If the Client terminates the Agreement prematurely, Adwise is entitled to charge cancellation costs.

8.3. Adwise is entitled to dissolve the Agreement wholly or in part with immediate effect, without judicial intervention and without being obliged to pay any compensation, if the Client is declared bankrupt or is granted a suspension of payments, as well as if the Client’s business is closed down or liquidated other than for the purposes of reconstruction or merger of companies, or if the decisive control of the Client’s business changes.

8.4. The Agreement may only be dissolved on the basis of attributable failure after a written notice of default has been sent that is as detailed as possible, with a reasona-ble term being set for fulfilment or remedy of the failure after all, unless these Conditions or the law provide otherwise.

8.5. If the Agreement is dissolved, anything that Adwise has delivered and/or carried out as well as the related payment obligation will not be undone, unless the Client proves that Adwise is in default with regard to the material part of those Services. Amounts which Adwise has invoiced before the dissolution, in connection with that which it has already and properly carried out or delivered for the performance of the Agreement, will continue to be payable, with due regard for the provisions of the previous sentence, and will become immediately due and payable at the moment of dissolution.

8.6. If the Agreement is dissolved, all rights granted to the Client will cease to have effect. The Client will no longer be authorised to make use of the Service.

8.7. Articles that, by their nature, are intended to continue to apply after the end of the Agreement will remain fully effective after the Agreement is terminated.

9. IP rights

9.1. Unless explicitly determined otherwise in the Agreement, all IP rights to all the Services provided within the framework of the Agreement, as well as to all other materials or information which Adwise has made available, will be vested exclusively in Adwise and/or its licensors. The Client acknowledges these rights and will abstain from any infringement.

9.2. Nothing in these Conditions and/or the Agreement implies a transfer of IP Rights. The Client will obtain solely the non-exclusive and non-transferable right of use to the Services for the purposes stipulated in the Agreement and on the conditions stipulated in the Agreement. Unless explicitly stipulated otherwise in writing, the right of use granted applies only for the Netherlands. The Client is not permitted to remove and/or alter any identifiers concerning IP Rights from the results of Services.

9.3. Client indemnifies Adwise for all third party claims in respect of IP rights relating to the publication of texts, images or any other data and materials provided to Adwise by or on behalf of the Client.

9.4. Adwise explicitly does not relinquish its personality rights referred to in Article 25 of the Dutch Copyright Act (Auteurswet).

9.5. Adwise is permitted to use the Services and the materials used for the implementation of the Agreement, such as designs, drawings, films, software, files whether electronic or otherwise, reports, formats and interviews, for purposes of its own promotion and/or publicity, unless otherwise stipulated in the Agreement.

9.6. Adwise reserves the right to introduce technical protective measures into the Services. The Client is not permitted to circumvent these technical protective measures or to offer means to do so.

10. Privacy

10.1. If within the framework of performing the Services, Adwise has to process Personal Data of customers of the Client, Adwise must be deemed to be the ‘processor’ (Bewerker) within the meaning of the Dutch Personal Data Protection Act (Wet Bescherming Persoonsgegevens) and the Client must be deemed to be the ‘controller’ (Verantwoordelijke).

10.2. The Client guarantees to Adwise that the data are not unlawful and that they do not infringe the rights of third parties. The Client indemnifies Adwise against all legal action or claims by third parties, including supervisory authorities and other stakeholders, on any basis whatsoever, in connection with the processing of this data within the framework of the Agreement.

10.3. Pursuant to the legislation on the processing of Personal Data (such as the Dutch Personal Data Protection Act), the Client has obligations to third parties, such as the obligation to disclose information, and to allow stakeholders to inspect, correct and remove their Personal Data. The responsibility for complying with these obligations lies fully and solely with the Client. To the extent technically possible, Adwise will cooperate with the obligations to be complied with by the Client, including sending requests from third parties within the framework of the Client’s obligations. The costs associated with such cooperation will be fully borne by the Client.

10.4. Adwise will take appropriate technical and organisational measures, or have them taken by third parties, and will maintain them and if necessary adjust them, to protect the Personal Data that it processes on the instructions of the Client in order to prevent unlawful processing. Adwise will not process the Personal Data obtained from the Client for its own purposes.

10.5. Adwise will discuss with the Client the appropriate technical and organisational measures to be taken for the protection of Personal Data from loss or from any other form of unlawful processing.

10.6. The Client acknowledges that it has full knowledge of the technical and organisational measures to be carried out by Adwise and herewith declares that these measures will guarantee a suitable level of protection, taking into consideration the state of the art and the costs of implementation and having regard to the risks involved in the processing and the nature of the data to be protected.

10.7. If, despite the fact that Adwise has implemented the agreed appropriate measures, a security incident occurs involving 1) destruction, 2) loss, 3) falsification, 4) unauthorised distribution of and/or access to, or 5) any other form of unlawful processing of Personal Data, the Client cannot hold Adwise liable for any damage sustained as a result of such incident.

10.8. If the Client explicitly requests measures which, in the opinion of Adwise, cannot be regarded as suitable technical and organisational measures, the implementation thereof will be entirely for the account and risk of the Client, and Adwise does not accept any liability for any damage suffered by the Client or third parties.

10.9. The Client indemnifies Adwise in full against all claims by third parties, including but not limited to penalties imposed by regulators that are in any way based on the assertion that the technical and organisational measures taken by Adwise as referred to in the preceding paragraph of this article are not appropriate and/or are otherwise not adequate.

11. Confidentiality

11.1. The Parties will treat all information they obtain from one another, in any form whatso-ever - written, verbal, electronic or physical - including but not limited to software, (source) codes, programs, applications, customer details, know-how, technical specifications, documentation (‘Confidential Information’) as strictly confidential, and will keep it secret during the term of the Agreement and for two (2) years after the end of the Agreement.

11.2. The Parties will only use the Confidential Information for the purposes for which it was disclosed and in doing so will observe at least the same duty of care and safeguards that apply to their own internal confidential information. The Parties will only disclose the Confidential Information to employees, and employees of affiliated businesses and subcontractors, insofar as is necessary within the framework of the (implementation of the) Agreement. Comparable provisions in relation to confidentiality must be imposed on these employees and subcontractors.

11.3. The obligations to maintain secrecy with regard to the Confidential Information do not apply insofar as the receiving Party can demonstrate that the information concerned:

1. was already known to it when it was received;
2. was already publicly known when it was received;
3. became publicly known after receipt and isn’t attributable to the receiving Party;
4. was received in a lawful manner from third parties along with the right to communicate it publicly without any obligation to maintain secrecy;
5. must be disclosed pursuant to legislation or regulations or pursuant to a court order, and the disclosing Party has informed the other Party of such an obligation to communicate it to the public;
6. was made public with the approval of the Party disclosing it.

11.4. Adwise reserves the right to use the name of the Client as a reference and to disclose it as such.

12. Exclusivity and non-competition

12.1. For the duration of the Agreement, and in accordance with the provisions of the Agreement, the Client grants Adwise the exclusive right to fulfill the assigned work.

12.2. For the duration of the Agreement and one (1) year after it terminates, except with the prior consent of Adwise, the Client will not employ employees of Adwise who are or were involved in the implementation of the Agreement, nor have them work for the Client in some other manner, directly or indirectly.

12.3. For any breach of the provision set forth in the preceding paragraph, the Client shall forfeit a direct payable fine of € 50,000 (fifty thousand euros) for each violation, or € 1,000 (one thousand euros) per day for each day that the infringement continues, notwithstanding the legal right of Adwise to claim damages. These damages explicitly include any legal and other costs that Adwise makes to detect the violation and to determine liability.

13. Liability

13.1. Except in the event of intent or gross negligence by Adwise, the total liability of Adwise due to an attributable failure as regards fulfilment of the Agreement, illegal act or on any other account, explicitly including any failure to fulfill any guarantee obligation agreed with the Client, is limited to the compensation of the direct damage suffered by the Client up to a maximum of the price stipulated and invoiced for the Agreement in question (excl. VAT and media fees). If the Agreement is a continuing performance contract with a term of more than one year, the price stipulated for the Agreement will be set at 50% of the total payments stipulated for one year (excl. VAT and media fees). However, on no account will the total liability of Adwise for direct damage, on whatever account, exceed € 250,000 (two hundred and fifty thousand euros). A series of connected failures will be regarded as a single failure.

13.2. The liability of Adwise for damage by death, physical injury or material damage to property will, in total, never exceed € 1,000,000 (one million euros).

13.3. Adwise is not liable for indirect damage, consequential damage, reputational damage, lost profit, missed savings, reduced goodwill, damage due to operational delays, damage as a consequence of claims by purchasers of the Client, damage relating to the use of third-party goods, materials or software prescribed to Adwise by Client and damage relating to the engagement of third parties prescribed by Client to Adwise. Nor is Adwise liable due to deformation, destruction or loss of data or documents.

13.4. Adwise is not liable for damage which is covered by any insurance taken out by the Client.

13.5. The exclusions and restrictions of Adwise’s liability, as described in the above paragraphs of this Article, do not in any way prejudice the exclusions or restrictions of Adwise on account of this general part of these Conditions and the Annexes.

13.6. Unless fulfilment by Adwise is permanently impossible, liability on the part of Adwise due to attributable failure in the fulfilment of an Agreement will only arise after the Client has immediately placed Adwise in default in writing, whereby a reasonable deadline for rectification of such failure has been set and Adwise continues, even after such deadline, to fail culpably in the fulfilment of its obligations. The notice of default must include as complete and detailed a description of the failure as possible, so that Adwise has the opportunity to respond adequately.

13.7. Any right to compensation is always subject to the Client reporting the damage as quickly as possible, but in any event within fourteen (14) days after it has arisen and reported to Adwise in writing. If Adwise is not informed by the aforementioned deadline, Adwise will be released from any liability in connection with said damage. Any claim for compensation against Adwise will cease to exist simply by the passage of twelve (12) months after the claim arose.

13.8. The Client bears the full risk and responsibility for its use of the Services. Adwise does not accept any liability for use of the Services by the Client. The Client indemnifies Adwise against any claims by third parties in connection with the performance of the Agreement and/or resulting from the use of the Services by the Client.

13.9. The Client indemnifies Adwise against all third-party claims due to product liability as a consequence of a defect in a product or system supplied by the Client to third parties and which consisted partly of equipment, software or other materials supplied by Adwise, unless and insofar as the Client proves that the damage was caused by said equipment, software or other materials.

13.10. The provisions in this article, as well as all other liability restrictions and exclusions referred to in these Conditions, also apply for the benefit of all legal entities/persons which Adwise serves during the performance of the Agreement.

14. Force majeure

14.1. In the event of force majeure, no attributable failure will apply in the performance of the Agreement by the Parties.

14.2. Force majeure includes, among other things, disruptions in the supply of electricity, strikes, riots, excessive absenteeism of employees, government measures, fire, floods, natural disasters, failure on the part of Adwise’s suppliers, failure on the part of third parties enlisted by the Parties, disruptions in the internet connection, malfunctions in equipment and/or (telecommunication) networks and other unforeseen circumstances.

14.3. If the force majeure lasts at least thirty (30) days, the Parties are entitled to dissolve the Agreement, partially or whole, without being obliged to reimburse any damage, undo any work or to pay any compensation for such dissolution.

14.4. If Adwise can still perform in part at the time of the force majeure, or if it has performed, it is authorised to perform this Service and to invoice it separately, as if it concerned a separate Agreement.

15. Transfer of rights and obligations

15.1. Adwise can license, sublicense or transfer the rights and obligations arising from the Agreement to third parties. The Client is not authorised in this respect.

16. Complaints

16.1. Any complaint relating to the execution or failure of the performance of any work contained in the Agreement shall be submitted by Client to Adwise in writing within fourteen (14) days after publication and/or disclosure thereof, at the expiration of any.

16.2. Adwise will endeavour to handle the complaint, reported in accordance with the aforementioned provision, as well as possible.

16.3. The filing of a complaint does not affect the other obligations of the Client.

17. Settlement and mediation

17.1. If a dispute between Parties cannot be settled amicably, the dispute will, before it is submitted to the court, be submitted to competent representatives of the Parties in order to assess the settlement possibilities.

18. Applicable law

18.1. These General Terms and Conditions, the Agreement and the Annexes are exclusively subject to Dutch law.

18.2. The applicability of the Vienna Sales Convention (CISG) is expressly excluded.

18.3. All disputes that arise between Adwise and the Client within the framework of, or in connection with, these General Terms and Conditions, the Annexes and/or the Agreement will be submitted to the competent court in the district where Adwise is located, with the exclusion of all other judicial authorities, unless otherwise decided by Adwise.

19. Chamber of Commerce

19.1. These General Terms and Conditions are filed at the office of the Chamber of Commerce in Enschede under number 08137396.

19.2. Applicable is the latest registered version or the version as it was at the time of the conclusion of the Agreement.

 

CONSULTANCY

1. Applicability

1.1. The provisions referred to in this Annex apply, in addition to the General Terms and Conditions, to Services purchased by the Client from Adwise in the field of consultancy and/or training, for the hiring in on an hourly basis of professionals with a duty of best endeavours, hereinafter referred to as ‘Consultancy’.

2. Consultancy

2.1. All Consultancy Services provided by Adwise will be performed subject to the provisions in the Agreement.

2.2. In performing the Services, Adwise will exercise the greatest possible care with regard to the Client’s interests. In particular, Adwise will ensure the secrecy of all the data and information made available by the Client to Adwise within the framework of the Agreement.

2.3. If the Agreement has been concluded for Consultancy Services provided by a particular person, Adwise will always be entitled to replace that person with one or more other equally qualified persons.

2.4. The Client will provide an adequate and safe work area, insofar as the Consultancy Services are performed at the Client. The Client will ensure that employees of Adwise are informed about any local health and safety regulations.

2.5. The Client will ensure that its employees and other independent contracting parties fully cooperate with (employees of) Adwise in the provision of Consultancy Services and will adequately provide (employees of) Adwise with all the information that is reasonably required in order to properly perform the Consultancy Services.

3. Rates and working hours

3.1. The hourly or daily rate charged by Adwise for Consultancy Services is based on eight-hour working days. The Client will reimburse Adwise for travel and other expenses incurred in providing such Services.

3.2. The Client can also order training sessions from Adwise (planned lessons on location at Adwise or on-site) at full rates and on days recorded in the Agreement.

4. Liability

4.1. Supplementary to Article 13 of the General Terms and Conditions, Adwise cannot, in any way, be held liable for the Consultancy Services provided and the possible consequences thereof, except in the event of negligence or deliberate recklessness on the part of Adwise.

 

DEVELOPMENT OF WEBSITES AND APPS

1. Applicability

1.1. In addition to the General Terms and Conditions, the provisions set out in this Annex apply if Adwise develops, on the Client’s instructions, a website (hereinafter referred to as ‘Website’) or application (hereinafter referred to as ‘App’) and/or executes a related Service (hereinafter referred to as ‘Service’). This includes, but is not limited to, webshops, websites, commerce platforms, ‘my’-environments, portals and links. The other capitalised terms used in this Annex are defined in the General Terms and Conditions.

2. Development of websites and/or apps

2.1. Adwise will make an effort to develop the Website and/or App or perform the Service pursuant to the specifications included in the Agreement.

2.2. Adwise is entitled to demand a written agreement to a design and/or draft of the Website and/or App and/or Service before starting the development, and to suspend the development and to charge the Client any costs resulting from the delay in accordance with the usual rates until this agreement has been received.

3. Client rights

3.1. Unless the Agreement provides otherwise, Adwise grants the Client the non-exclusive, non-transferable and non-sublicensable user right to the Website and/or App and/or Service.

3.2. Unless agreed otherwise, the source code of the Website and/or App and/or Service and the technical documentation used or produced upon developing the Website and/or App and/or Service will never be made available to the Client.

3.3. The Client itself is at all times responsible for the use of the Website and/or App and/or Service. The Client may not use the Website and/or App and/or Service for actions and/or conduct contrary to the Agreement, applicable laws or regulations, public order or morals, or use it in any other unlawful manner. The Client indemnifies Adwise against all third-party claims and other damage relating to violation of the above.

3.4. If the IP Rights to (part of) the Website and/or the App and/or Service belong to licensors of Adwise, the Client may be bound by the licence provisions and the terms and conditions of these third parties, including but not limited to content management software or restrictions relating to the issuing of licences, which may influence Article 3.1 of this Annex.

4. Delivery, installation and acceptance

4.1. Adwise will make an effort to deliver the Website and/or App and/or Service in the manner determined in the Agreement.

4.2. By way of an acceptance test, it has been agreed that the Website and/or App and/or Service will be deemed to be accepted on the first day after the test period or, if Adwise receives a test report before the end of the test period as referred to in Article 4.5 of this Annex, at the moment at which the errors referred to therein have been rectified, without prejudice to the presence of errors which, according to Article 4.8 of this Annex, do not prevent acceptance.

4.3. Contrary to the above, the Website and/or App and/or Service will be deemed to be fully accepted from the time that the Client puts it online or uses it in another way for productive or operational purposes before it has been formally accepted.

4.4. If, during the performance of the agreed acceptance test, it transpires that the Website and/or App and/or Service contains errors that obstruct the progress of the acceptance test, the Client will provide detailed written information of this to Adwise, in which case the test period will be interrupted until the Website and/or App and/or Service has been modified in such a way that the obstruction has been removed.

4.5. If, during the performance of the agreed acceptance test, it transpires that the Website and/or App and/or Service contains errors, the Client will inform Adwise of the errors by means of a detailed written test report no later than on the last day of the test period. Adwise will use its best endeavours to remedy the errors within a reasonable period, whereby Adwise is entitled to introduce temporary solutions or software bypasses or problem-evading restrictions into the Website and/or App.

4.6. The Client may not withhold acceptance of the Website and/or App and/or Service for reasons other than those that are connected with the specifications explicitly agreed between the Parties and/or due to the existence of minor errors, i.e. errors which would not reasonably preclude putting the Website and/or App and/or Service into operation, notwithstanding Adwise’s obligation to remedy these minor errors on the basis of the guarantee arrangement set out in Article 5 of this Annex, if applicable.

4.7. Adwise is not obliged to rectify any errors as referred to in Article 4.5 and Article 4.6 of this Annex if these have come about as a consequence of:

1. a modification to the Website and/or App and/or Service, of any nature whatsoever, which has not been made by Adwise;
2. use of the Website and/or App and/or Service in a manner which is not allowed on the basis of the Agreement;
3. incorrect use of the Website and/or App and/or Service, by the Client or another party; or
4. input errors or errors connected with the data used by the Client.
   
   

4.8. If the Website and/or App and/or Service is delivered and tested in phases and/or parts, non-acceptance of a particular phase and/or part will not affect any acceptance made of a previous phase and/or different part.

5. Guarantees

5.1. During a period of three (3) months after delivery or, if an acceptance test has been agreed, three (3) months after the end of the test period, Adwise will repair any defects in the Website and/or App and/or Service accepted by the Client free of charge, if and insofar as Adwise has been notified in writing of these defects by the Client within that period.

5.2. After the expiry of the period mentioned in the preceding paragraph, Adwise will charge costs for performing (repair) work, unless otherwise agreed in writing.

5.3. Unless agreed otherwise in writing, Adwise does not guarantee that the Website and/or App and/or Service functions, or functions properly, in combination with all software (including web browsers, and/or equipment) nor does Adwise guarantee that the Website and/or App and/or Service functions and/or is accessible without malfunctions, interruptions, or other errors.

5.4. If Adwise delivers a Website and/or App and/or Service to the Client which Adwise has obtained from its suppliers, Adwise will not be obliged vis-à-vis the Client to provide any additional guarantee than that which Adwise can claim from its supplier.

 

ADVERTISEMENT SALES

1. Applicability

1.1. The provisions referred to in this Annex apply, in addition to the General Terms and Conditions, to Services to be purchased by the Client of Adwise in the field of online advertisement sales and campaign management, with the exception of services not related to Advertisement Sales, including but not limited to work in the field of Consultancy, hereinafter referred to as ‘Advertisement Sales’.

2. Prognoses and advice

2.1. Insofar as Adwise has given any advance prognoses regarding possible results of advertising campaigns, these are merely estimates and are not binding upon Adwise.

2.2. Services not related to Advertisement Sales, including but not limited to work in the field of Consultancy, are subject to the Annex entitled ‘Consultancy’.

3. Client obligations

3.1. The Client will provide all cooperation reasonably requested by Adwise and will promptly supply Adwise with all information that is reasonably required in order to perform the Agreement, including information about laws and regulations specific to the Client’s sector which Adwise must comply with, including information about advertising bans and information obligations.

3.2. If the Client supplies - via third parties or otherwise - advertising material to Adwise, the Client guarantees that such advertising material has always been prepared in accordance with the applicable laws and regulations, including but not limited to the Dutch Advertising Code (Nederlandse Reclame Code) and the Client also guarantees that this advertising material does not infringe any rights (including IP rights) of third parties. If the above does not apply, the Client indemnifies Adwise against all claims by third parties and other damage which results from such claims.

3.3. If the Client supplies advertising material to Adwise, via a third party or otherwise, the Client guarantees that such advertising material meets the technical specifications communicated by Adwise to the Client in advance, that it is free of technical defects and that it is sufficiently suitable for placing measuring systems. If the above does not apply, the Client indemnifies Adwise against all claims by third parties and other damage which results from such claims.

3.4. All orders by the Client relating to Advertisement Sales must be paid, without with-drawal or cancellation being possible. Adwise will charge the cost of Advertisement Sales in advance, unless the Parties agree otherwise. If no timely payment has taken place, then Adwise will not carry out the Advertisement Sales. The Client cannot be reimbursed for the media budget paid by the Client for Advertisement Sales in relation to advertisements placed, and neither can the Client be credited for these.

3.5. The Client must perform all obligations with regard to third parties insofar as these affect the performance of the Agreement by Adwise.

4. Adwise obligations

4.1. At the Client’s request Adwise will specify, within a reasonable period after the budget made available by the Client for Advertisement Sales has been spent, which part of the budget was spent on the purchase of media and which part was spent on campaign management costs.

4.2. If Adwise independently prepares advertising material on the Client’s instructions, Adwise will guarantee that the advertising material corresponds to the applicable law and regulations, and that the advertising material does not infringe any rights (including IP rights) of third parties, whereby any liability by Adwise will lapse in the event that the Client has not provided information, or has provided incorrect or incomplete information which is contrary to the provisions of Article 3.1 of this Annex.

5. Access to third-party accounts

5.1. Insofar as is necessary within the framework of execution of the Agreement, the Client will provide Adwise with all information required for read access to the accounts with third-parties/service providers.

5.2. Adwise will comply with reasonable instructions and guidelines provided by the Client with regard to the use of the Client’s accounts with third parties. However, Adwise only has obligations to the Client, and is in no way liable to these third parties.

5.3. Insofar as the Client uses accounts of Adwise with third-parties/service providers, the Client will always strictly comply with the instructions issued by Adwise in that regard, including but not limited to payment periods. The Client is liable for and indemnifies Adwise against all damage resulting from any failure by the Client to comply with such instructions in a timely manner.

6. Cookies and data analysis

6.1. Insofar as the activities of the Client, or the party with which agreements are concluded for the Client within the framework of Advertisement Sales, imply the placement and reading of information on the peripheral equipment of end users (hereinafter referred to as Cookies), the Client acknowledges that it is fully responsible for compliance with all applicable legislation when placing and reading Cookies or any
of the data analysis and acknowledges that, within this framework, Adwise does not bear any responsibility.

6.2. The Client guarantees that the Client will always act in complete accordance with all laws and regulations with regard to Cookies, including but not limited to the Dutch Telecommunications Act (Telecommunicatiewet). In particular, the Client guarantees that, in accordance with the applicable laws and regulations, it will not place or read any Cookies (or have them placed or read) before the Client has received satisfactory permission from the end user in this regard, and provide end users with satisfactory information in the form of a cookie policy, before the Client places and reads Cookies. At the request of Adwise the Client must always be able to demonstrate this satisfactorily in writing.

6.3. The Client is liable for all damage (to be) suffered by Adwise as a consequence of the non-fulfilment of this Article 6 and/or violation by the Client of applicable legislation and regulations, and indemnifies Adwise completely against all claims by third parties, including but not limited to penalties imposed by supervisory authorities, which are the consequence of and/or are connected to a violation by the Client of this Article 6.

7. Measurements

7.1. Adwise’s administrative and measuring systems will be used as the basis for calculating the agreed fees, unless a calculation made using the Client’s measuring systems results in a higher value, in which case the Client’s measuring systems will be used as the basis for such calculations.

7.2. In the event of an interruption, presumably tampering with the measuring systems or a discrepancy of more than 10% between the measuring systems of Adwise and the Client, Adwise will be entitled to calculate the fee owed on the basis of a reasonable estimate of measurement results, gauged according to previous measurement results or otherwise.

8. Miscellaneous

8.1. Surcommissions (Surco’s), amounts still to be received, other discounts and/or offsetting will accrue to Adwise.

8.2. Adwise is nog, in any way, liable for any damage as a consequence of advertisements placed on the Client’s instructions.

 

HOSTING

1. Applicability

1.1. In addition to the General Terms and Conditions, the provisions set out in this Annex apply if, on the Client’s instructions, Adwise saves and passes on information via and/ or provides access to a communications network, hereinafter referred to as ‘Hosting’.

2. Availability of hosting services

2.1. The client is responsible for the availability of the equipment and software, connec-tions and other preconditions of the Client for making access to the system possible.

2.2. Arrangements regarding service levels will be set out in a Service Level Agreement (SLA).

2.3. Adwise will endeavour to enable the Hosting services to be used with as little disruption as possible.

2.4. Adwise is not liable for the non-availability or reduced availability of the Hosting Services as a consequence of a power cut or power disruption, disruptions in telecommunications or the internet, defects to the Client’s equipment or software and all other causes beyond Adwise’s control.

2.5. Adwise has the right to temporarily close down the Hosting services or to limit the use of them for maintenance work or for adjustments to the system, and it will inform the Client of this in advance. In that case the Client will not be entitled to compensation.

2.6. If the amount of the allowed data traffic and disc space is exceeded, Adwise will be entitled to charge reasonable additional costs without further notice.

2.7. If, after the end of the term of the Agreement, the Client does not wish to continue the collaboration with Adwise, Adwise will cooperate with a transfer to third parties for the applicable Adwise rates.

3. Client obligations

3.1. The Client is expressly prohibited from distributing information or offering facilities or functionalities through or via websites hosted by Adwise, if and insofar as this information is contrary to:

1. applicable laws and regulations, including regulations of self-regulating bodies;
2. the Agreement; or
3. reasonable directions and instructions issued by Adwise.
   
   

3.2. The Client will at all times adopt the attitude and conduct itself in the manner that may be expected of a careful user with regard to the information it communicates to the public and the use of the Internet. In this regard it will, among other things, comply with all statutory regulations and observe ‘netiquette’ and will, among other things, refrain from behaviour which is contrary to morals or public order, spamming, infringing IP Rights of third parties, communicating to the public or distributing pornography, including child pornography, sexually intimidating or harassing third parties in any other way, violating the privacy of third parties or compromising the honour or reputation of third parties, hacking, carrying out DDoS or other kinds of attacks and spreading viruses, worms or other programs which could damage individual systems or disrupt the operation of the Internet.

3.3. The Client is obliged to use the Hosting services in such a way that does not hamper the correct operation of the communication network or the use of the Hosting services by other clients.

3.4. In the event that the Client does not observe the provisions from this article and/or if Adwise receives notification from third parties that this is the case, Adwise will be entitled, without any additional notification, to suspend or discontinue the Hosting services, block connections or remove content. In instances in which this is justified in view of the seriousness of the violation, Adwise is entitled to terminate the Agreement with immediate effect. In the event of such suspension, cessation, blockage, removal and/or termination, the Client will not be entitled to receive any compensation from Adwise.

3.5. The Client indemnifies Adwise from all third-party claims, including but not limited to claims due to information and/or data published by or via the Client’s websites and claims by a supplier or suppliers of Adwise resulting from the non-fulfilment by the Client of one of its obligations from the Agreement, more particularly from this article.