Article 1: GeneralThese general terms and conditions concern the terms and conditions of MarketingTracer, hereinafter referred to as "MarketingTracer", with its registered office in Bergen op Zoom and its office in Bergen op Zoom at the Hyacintenveld 68, 4613DL, registered in the trade register of the Chamber of Commerce for Breda.
Article 2: Applicability
- These terms and conditions apply to all offers and all agreements of MarketingTracer, established in Bergen op Zoom, hereinafter referred to as "MarketingTracer". The contractual other party will hereinafter be referred to as "Client".
- In these terms and conditions, the Client is understood to mean any (legal) person to whom MarketingTracer directs its offers / quotes, as well as those who send offers to MarketingTracer and those who give MarketingTracer an assignment or with whom MarketingTracer enters into an agreement furthermore the person with whom MarketingTracer is in any legal relationship and apart from this, his representative (s), authorized representative (s), legal successor (s) and heir (s).
- Parties have the option to deviate from these terms and conditions. These other terms and conditions are only part of the agreement concluded between the parties if and insofar as both parties have explicitly agreed in writing.
- The applicability of any purchase conditions or other conditions of the Client is expressly excluded.
- In these general terms and conditions, "written" is also understood to mean: by e-mail, fax or any other form of communication that can be equated with this in view of the state of the art and the prevailing views in society. .
- Accepting and retaining a quotation or order confirmation on which these terms and conditions have been referred to by the Client without comment constitutes acceptance of their application.
- The possible inapplicability of a (part of a) provision of these general terms and conditions does not affect the applicability of the other provisions.
Article 3: Formation of agreements
- If an offer from MarketingTracer is accepted, then the agreement will only come into effect after written confirmation from MarketingTracer, or at the moment that MarketingTracer has commenced implementing acts with the consent of the Client.
- Oral agreements only bind MarketingTracer after they have been confirmed in writing by MarketingTracer.
- Additions or changes to the general terms and conditions or other changes or additions to the agreement will only become binding after written confirmation by MarketingTracer.
Article 4: Offers
- All offers, quotes or quotes from MarketingTracer are without obligation and automatically expire after a period of 30 days, unless MarketingTracer no longer honors the offer and / or quotation and / or quotation within that period or unless MarketingTracer is already making the offer, quotation or quotation indicates otherwise. If a quotation or offer contains a non-binding offer and this offer is accepted by the Client, MarketingTracer has the right to revoke the offer within 5 working days of receiving the acceptance.
- The prices used by MarketingTracer as well as the prices stated in the offers, quotations, quotations and the like are exclusive of VAT and any costs. These costs may include - but are not limited to - travel costs, transport costs and invoices from third parties engaged.
- Images and descriptions in offers and on the user's website, brochures, catalogs, drawings, models, specifications of colors, dimensions and other data or descriptions are as accurate as possible, but are only indicative. No rights can be derived from this, unless the parties have explicitly agreed otherwise in writing.
- The images, brochures, catalogs, drawings and the like referred to in the previous paragraph of this article remain the property of MarketingTracer at all times, unless the parties have expressly agreed otherwise in writing. These must be returned at the first request of MarketingTracer. They may not be reproduced or given to third parties for inspection without written permission from MarketingTracer.
- Tenders do not automatically apply to future assignments.
- MarketingTracer cannot be held to its offers or offers if the Client must reasonably understand that the offers or offers, or a part thereof, contain an obvious mistake or error.
Article 5: Execution agreement
- MarketingTracer will implement the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
- If and in so far required for the proper execution of the agreement, MarketingTracer has the right to engage third parties for certain activities.
- The Client shall ensure that all data, of which MarketingTracer indicates that they are necessary or which the Client should reasonably understand to be necessary for the execution of the agreement, is provided to MarketingTracer in a timely manner. If the information required for the implementation of the agreement has not been provided to MarketingTracer in time, MarketingTracer has the right to suspend the implementation of the agreement or to charge the additional costs resulting from the delay to the Client in accordance with the usual rates. < / li>
- MarketingTracer is not liable for damage, of any nature whatsoever, because MarketingTracer started from incorrect or incomplete data provided by the Client, unless MarketingTracer should have been aware of this inaccuracy or incompleteness.
- If MarketingTracer or third parties engaged by MarketingTracer perform work within the framework of the assignment at the location of the Client or at a location designated by the Client, the Client will provide the facilities reasonably required by those employees free of charge.
- The Client indemnifies MarketingTracer against any claims from third parties that suffer damage in connection with the implementation of the agreement and whose cause is attributable to parties other than MarketingTracer. If MarketingTracer should be approached by third parties on that basis, the Client is obliged to assist MarketingTracer both outside and in court and to immediately do everything that may be expected from the Client in that case. If the Client fails to take adequate measures, MarketingTracer is entitled to do so itself without notice of default. All costs and damage on the part of MarketingTracer and third parties that arise as a result are integrally for the account and risk of the Client.
Article 6: Adjustment agreement
- If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement the work to be performed, the parties will adjust the agreement accordingly in a timely manner and in mutual consultation.
- If the parties agree that the agreement is amended or supplemented, the time of completion of the implementation may be affected. MarketingTracer will inform the Client of this as soon as possible.
- If the change or supplement to the agreement will have financial consequences, MarketingTracer will inform the Client about this in advance.
- If a fixed fee has been agreed upon, MarketingTracer will indicate to what extent the change or supplement to the agreement will result in this fee being exceeded.
Article 7: Contract duration and execution period
- Agreements are entered into for a fixed period of 1 month unless the parties have agreed otherwise in writing. Once the first contract period has expired, agreements are automatically renewed for the same duration.
- Specified deadlines for the completion of an assignment can never be regarded as a strict deadline, unless the parties have explicitly agreed otherwise in writing. If MarketingTracer does not or not timely fulfill its obligations under the agreement, it must therefore be given written notice of default.
- If MarketingTracer does not expect to be able to meet its obligations within the specified period, it will inform the Client of this as soon as possible.
- MarketingTracer is authorized - with regard to the fulfillment of the Client's financial obligations - to demand payment in advance or security from the Client, before proceeding to provide the services.
- MarketingTracer's exceeding of a delivery period as referred to in article 9.2 of this article does not qualify as a shortcoming attributable to MarketingTracer and does not justify the dissolution of the agreement by the Client, and therefore does not result in MarketingTracer being liable for the compensation of any damage suffered by the Client as a result of the actual longer delivery period.
Article 8: Equipment, software
- The Client must take care of proper equipment and other facilities that provide access to a network on which he can receive the services provided by MarketingTracer and at his own risk. The communication costs incurred in this context are for the account of the Client.
Article 9: Fee
- MarketingTracer and the Client may agree a fixed fee for the work to be carried out, or set the fee afterwards on the basis of the actual hours spent. Parties will specify the amount of the fixed fee or the applicable hourly rate in writing.
- In addition, the parties have the option to agree that the fee in one way or another depends partly on the result of the assignment. This can only be the case if the exact interpretation of this is agreed in writing.
- If written confirmation of the fee has not been made, MarketingTracer is authorized to determine this on the basis of its usual (hourly) rates, valid for the period in which the work took place. As of 1 January 2018 reference date, the usual (hourly) rates are as follows:
- For agreements with a duration of more than two months, the fee due may be charged monthly.
- The applied prices and / or hourly rates are periodically (in principle per January 1 and / or July 1) revised on the basis of wages and inflation figures, but only result in adjustment of the fee agreed with the Client after the expiry of the first contract term in the case of a fixed-term contract, or a minimum period of 12 months in the case of contracts for an indefinite period.
- Media spending (also “media purchase costs”) is in principle paid directly by the Client to the relevant advertising platform (eg Google AdWords).
Article 10: Confidentiality
- Both parties are obliged to maintain the confidentiality of all confidential information that they have received from each other or from another source in the context of the agreement. Information is considered confidential if this is communicated by the other party or if this results from the nature of the information.
- The Client will not copy the confidential information or make it available to third parties in any other way, unless with the prior written permission of MarketingTracer.
- The Client will not use the confidential information for a purpose other than that for which it was provided by MarketingTracer and will not use it in any other way than indicated by MarketingTracer. The Client will not make changes to documents or matters that contain confidential information from MarketingTracer.
- The Client is obliged in writing to bind its employees, agents and subcontractors who - necessarily - become aware of the confidential information to the same confidentiality obligations as the Client, prior to obtaining confidential information.
- In case of violation of one or more obligations from this article, the Client owes MarketingTracer an immediately due and payable penalty of € 5,000.00 per violation per day that a violation continues. This penalty is without prejudice to MarketingTracer's right to full compensation in accordance with the law.
- The provisions of this article remain in force even after termination or dissolution of the agreement.
Article 11: Complaints
- Complaints about the work performed must be reported in writing by the Client to MarketingTracer within 15 days after discovery, but no later than within 30 days after completion of the work concerned, failing which the Client will be deemed to have fully completed the result of the assignment. have accepted. The notice of default must contain as detailed a description as possible of the shortcoming, so that MarketingTracer is able to respond adequately.
- If a complaint is justified, MarketingTracer will still perform the work as agreed, unless it has become demonstrably pointless for the Client. The latter must be made known in writing by the Client.
- If carrying out the agreed work is no longer possible or useful, MarketingTracer will only be liable within the limits of Article 16.
- Submitting a complaint never suspends the Client's payment obligations.
- If a complaint is reported later than the stipulated period, the Client will no longer be entitled to handling the complaint or compensation.
- If it is established that a complaint is unfounded, then the costs incurred as a result, including the research costs, incurred by MarketingTracer as a result, will be borne in full by the Client.
Article 12: Intellectual Property
- All copyrights and other intellectual property rights with regard to the services provided by MarketingTracer rest with MarketingTracer. The Client acknowledges these rights and will refrain from any infringement thereof. All copyrights and other intellectual property rights with regard to, but not limited to, Google AdWords, Google Analytics and similar online accounts, will be transferred to the Client "for free" upon first written request, but only if and as soon as the Client meets its (payment) obligations has met.
- All copyrights and other intellectual property rights with regard to the (online) tools and / or software made available by the MarketingTracer to the Client are exclusively vested in the respective owners; The Client will only be granted the right to use this, in accordance with the specifically applicable conditions of use, which the Client is deemed to have taken cognizance of.
- All documents provided by MarketingTracer are exclusively intended for use by the Client. The Client is not permitted to make information obtained from MarketingTracer public or to reproduce it in any form whatsoever, unless such publication is permitted in writing by MarketingTracer.
- All documents supplied by MarketingTracer to fulfill the project remain the property of MarketingTracer. After the contract has been terminated or terminated, MarketingTracer may request the Client to destroy or return these documents.
- The Client indemnifies MarketingTracer against all claims from third parties with regard to intellectual property rights on the information and documents provided by it to MarketingTracer, which are used in the execution of the agreement.
- MarketingTracer reserves the right to use the knowledge acquired during the execution of the work for other purposes, insofar as no confidential information from the Client ends up with third parties.
Article 13: Liability
- The Client guarantees the accuracy and completeness of the data provided by the Client to MarketingTracer in the context of the formation and implementation of the agreement and will always immediately notify MarketingTracer in writing of changes to the data provided. MarketingTracer is not liable for claims of the Client and / or third parties that are the result of or are related to incorrect and / or incomplete information provided by the Client to MarketingTracer or to changes to the information provided by the Client to MarketingTracer in a timely manner. information.
- Any liability of MarketingTracer as well as of its employees and the persons engaged by MarketingTracer for the execution of the assignment, is limited to the amount that is paid out under MarketingTracer's professional / business liability insurance in the relevant case, including the costs to be borne by MarketingTracer deductible.
- In the event that the professional / business liability insurance of MarketingTracer referred to in Article 16.2 does not provide cover in a specific case, the liability of MarketingTracer as well as of its employees and the persons engaged by MarketingTracer in the execution of the assignment is limited to a maximum of total of the reimbursements received by MarketingTracer for the three months prior to the event that caused the damage. This limitation of liability applies annually, regardless of the number of events that cause damage.
- The Client indemnifies MarketingTracer against any claims from third parties that suffer damage in connection with the implementation of the agreement and whose cause is attributable to the Client.
- MarketingTracer is never liable for damage suffered by the Client or third parties as a result of incorrect, incomplete or untimely information provided by the Client.
- MarketingTracer is never liable for any damage whatsoever arising from errors in software or other computer software used by MarketingTracer.
- MarketingTracer is never liable for any damage whatsoever arising from the circumstance that (email) messages sent to MarketingTracer by the Client have not reached MarketingTracer.
- MarketingTracer's liability for indirect damage is excluded. Indirect damage is understood to mean all damage that is not direct damage and therefore in any case, but not limited to, consequential damage, loss of profit, lost savings, reduced goodwill, damage due to business interruption, damage due to non-determination of marketing objectives, damage related to the use of data or data files prescribed by the client, or loss, corruption or destruction of data or data files.
- MarketingTracer is not liable for damage, loss or destruction of objects, materials, image or word data in any form that has been made available by him or on behalf of the Client or that have been manufactured by third parties at the Client's request.
- Opinions provided by MarketingTracer are best efforts commitments and not results commitments. Guarantees on result are not deemed to have been issued when giving advice. MarketingTracer is therefore not liable with regard to the advice provided if no result is achieved.
- MarketingTracer accepts no liability whatsoever for the loss or change of data supplied via digital data carriers or e-mail. The Client or the third parties engaged by him must always check this data for accuracy and completeness.
- MarketingTracer accepts no liability whatsoever for the content of the websites or multimedia messages that it has produced.
- MarketingTracer accepts no liability whatsoever for the possible presence of viruses on the data carriers supplied by it or on data or software supplied or retrieved via the internet. The Client must himself check the supplied data carriers, data or software for the presence of viruses.
- MarketingTracer assumes no liability for information, freeware and shareware made available via the internet or intranet. MarketingTracer does not accept any liability for the correctness of the available information or for the correct functioning of the available software, nor for the consequences thereof.
- Unless fulfillment by MarketingTracer is permanently impossible, MarketingTracer's liability for imputable failure to comply with the Agreement arises only if the Client gives MarketingTracer a written notice of default without delay, whereby a reasonable period for clearing the shortcoming is set, and MarketingTracer Even after that period, the failure to meet its obligations continues to be attributable. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that MarketingTracer is given the opportunity to respond adequately.
- Any claim for compensation by the Client against MarketingTracer that has not been specified and explicitly reported will expire by the mere lapse of twelve (12) months after the claim arose.
- The exclusions and limitations referred to in this article will lapse if and insofar as the damage is the result of intent or willful recklessness on the part of MarketingTracer or its management.
Article 14: Payment
- Payment must be made within 14 days after the invoice date, in a manner to be specified by MarketingTracer in the currency stated in the invoice. Objections to the amount of the declarations do not suspend the payment obligation.
- The Client makes the payments due to MarketingTracer without discount or set-off, subject to set-off with deductible advances relating to the agreement, which he has provided to MarketingTracer. The Client is not entitled to suspend payment of invoices for work already performed.
- If the Client fails to comply with its obligation to pay the invoices within the stipulated payment period, the Client will owe an interest rate on top of the amount due, equal to the legal (commercial) interest plus 2% (in words: two percent) per month .
- In the event of liquidation, bankruptcy, seizure or suspension of payment from the Client, the claims of MarketingTracer on the Client are immediately due and payable.
- MarketingTracer is entitled to have the payments made by the Client go first of all to reduce the costs, then to reduce the interest still due and finally to reduce the principal sum and the current interest. MarketingTracer can, without being in default as a result, refuse an offer for payment if the Client designates a different order for the allocation. MarketingTracer can refuse full repayment of the principal, if the outstanding and accrued interest as well as the costs are not paid.
- If the Client is in default or in default with the fulfillment of one or more of its obligations towards MarketingTracer, then all costs for obtaining satisfaction out of court, such as with regard to writing reminders, summations and including the actual attorney costs and bailiff costs incurred, for the account of the Client. These costs amount to at least 15% (in other words: fifteen percent) of the total of the invoice amount due and not paid within the payment period.
- If MarketingTracer demonstrates that it has incurred higher costs than the aforementioned percentages, the Client will also owe MarketingTracer the excess.
- The Client also owes MarketingTracer all costs incurred by MarketingTracer, including - but not limited to - the actual lawyer's fees, court fees associated with conducting legal proceedings, such in all instances, unless this is in view of the applicable and usual for example, lawyers' fees are unreasonably high, and unless MarketingTracer has been unsuccessful in legal proceedings in an irrevocable decision.
Article 16: Communication
- In the event that the Client has sent any digital message to MarketingTracer, he may only trust that this message has reached MarketingTracer if the Client has received confirmation of its receipt, not being an automatic confirmation of receipt.
- General information provided by MarketingTracer, whether or not on the Internet, whether or not at the request of the Client, is free of obligation and is never considered as advice given by MarketingTracer in the context of an assignment given to it, except to the extent that communication from MarketingTracer shows the contrary whether it concerns advice tailored to the personal situation of the Client.
- Until the Client has notified MarketingTracer of a change of address, MarketingTracer may trust that the Client can be reached at the address provided by him at the start of the assignment, including his e-mail address.
Article 17: Retention of title
- MarketingTracer reserves the ownership of the goods delivered and the goods to be delivered under the agreement up to the time at which the Client has fulfilled its related payment obligations towards MarketingTracer. Those payment obligations consist of paying the agreed price, plus all claims with regard to work performed in connection with the agreement, as well as claims with regard to possible compensation for failure to comply with obligations on the part of the Client. li>
- The goods subject to the retention of title may only be resold by the Client within the framework of normal business operations.
- In the event that MarketingTracer invokes the retention of title, the relevant agreement will be deemed dissolved, without prejudice to MarketingTracer's right to claim compensation for damage, loss of profit and interest.
- The Client is obliged to immediately inform MarketingTracer in writing of the fact that third parties are asserting rights on matters subject to retention of title pursuant to this article.
Article 18: Decommissioning
- MarketingTracer has the right to put delivered products and / or services out of service (temporarily) and / or to limit their use if the Client does not fulfill an obligation to MarketingTracer with regard to the agreement, or acts contrary to the Terms and Conditions. The obligation to comply with the payment of the amounts due also remains during the decommissioning.
- MarketingTracer activates the product and its service as soon as the Client has fulfilled its obligation and has paid an amount for the product or service.
Article 19: Force majeure
- In the event of force majeure, MarketingTracer is authorized without judicial intervention, either to suspend the execution of the agreement or to dissolve the agreement, without being obliged to pay any compensation. If the force majeure situation occurs when the agreement has been partially implemented, the Client is obliged to fulfill its obligations to MarketingTracer up to that point. All costs incurred by MarketingTracer until then will be immediately due and payable in full.
- The circumstances in which force majeure will occur include war, riot, mobilization, domestic and foreign unrest, government measures, strike and exclusion by workers, disruption of the currency existing at the time of entering into the agreement relationships, weather conditions, business disruptions due to fire, accident or other occurrences and natural phenomena, irrespective of whether these circumstances occur at MarketingTracer, its suppliers or third parties engaged by it for the execution of the commitment.
Article 20: Suspension, cancellation and dissolution
- MarketingTracer is authorized to cancel the agreement in writing at any time.
- For agreements with a duration of 1 month or less, the Client may prematurely terminate the agreement with due observance of a cancellation period of 1 calendar month. For agreements with a duration of more than 12 months or for an indefinite period of time, the Client must observe a cancellation period of 2 calendar months.
- If an agreement for a definite period of time is terminated prematurely by the Client, MarketingTracer is entitled to compensation for the resulting and plausible loss of occupancy amounting to 50% of the regular fee calculated over the remaining original term of the agreement, unless there are facts and circumstances underlying the cancellation that can be attributed to MarketingTracer and the applicable (complaints) procedure has been followed by the Contractor. Furthermore, in that case the Client is obliged to pay the invoices for work performed up to then. The provisional results of the work carried out until then will therefore be made available to the Client subject to reservation.
- MarketingTracer is authorized to suspend compliance with the obligations or to dissolve the agreement if: the Client does not, not fully or not timely fulfill the obligations arising from the agreement; after the conclusion of the agreement, MarketingTracer learns of circumstances that give good reason to fear that the Client will not fulfill its obligations; the Client was requested at the conclusion of the agreement to provide security for the fulfillment of his obligations under the agreement and this security is not provided or is insufficient; if, due to the delay on the part of the Client, MarketingTracer can no longer be expected to fulfill the agreement under the originally agreed conditions, MarketingTracer is entitled to terminate the agreement.
- Furthermore, MarketingTracer is authorized to terminate the agreement if circumstances arise that are of such a nature that fulfillment of the agreement is impossible or if there are other circumstances that are of such a nature that unchanged maintenance of the agreement cannot reasonably be expected of MarketingTracer can be required.
- If the agreement is dissolved, the claims of MarketingTracer on the Client are immediately claimable. If MarketingTracer suspends compliance with its obligations, it will retain its rights under the law and agreement.
- If MarketingTracer proceeds to suspension or dissolution, it is in no way obliged to compensate damage and costs arising in any way.
- If the termination is attributable to the Client, MarketingTracer is entitled to compensation for the damage, including the costs, arising directly and indirectly as a result.
- If the Client does not fulfill its obligations arising from the agreement and this non-compliance justifies termination, MarketingTracer is entitled to terminate the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or compensation, while the Client , due to non-performance, compensation or compensation is required.
- If the agreement is terminated prematurely by MarketingTracer, MarketingTracer will arrange for the transfer of work still to be performed to third parties in consultation with the Client. This unless the cancellation is attributable to the Client. If the transfer of the activities entails additional costs for MarketingTracer, then these will be charged to the Client. The Client is obliged to pay these costs within the specified period, unless MarketingTracer indicates otherwise.
- In the event of liquidation, (application for) a suspension of payment or bankruptcy, of seizure - if and insofar as the seizure has not been lifted within three months - at the expense of the Client, of debt rescheduling or any other circumstance whereby the Client is no longer free to dispose of its assets, the MarketingTracer is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or compensation. In that case, the MarketingTracer claims against the Client are immediately due and payable.
- If the Client cancels an order in whole or in part, then the goods ordered or prepared for it, plus any costs incurred, the lost profit thereof and the working time reserved for the execution of the agreement, will be charged in full to the Be charged to the client.
- If a Client wishes changes in the implementation of a project or assignment provided, MarketingTracer is not obliged to do so. MarketingTracer then has the authority to cancel the order. In that case, the Client is liable for the damage suffered by MarketingTracer, including loss of profit and costs incurred.
Article 21: Recruitment of staff
During the collaboration with MarketingTracer plus a period of 12 months, the Client is not permitted to recruit (formerly) MarketingTracer employees or assignments to be provided as a freelancer or self-employed person, without prior written approval from the MarketingTracer management. In the event of violation of the provisions of this article, the Client will owe MarketingTracer an immediately due and payable penalty of € 25,000 plus € 2,500.00 per day that a violation continues. This fine does not affect MarketingTracer's right to full compensation in accordance with the law.
Article 22: Dispute Resolution and Applicable Law
- Contrary to the legal rules for the jurisdiction of the civil court, any dispute between MarketingTracer and the Client, in case the court has jurisdiction, will be settled by the Court in Bergen op Zoom, even if the Client fails The Netherlands is a party.
- MarketingTracer, however, remains authorized to sue the Client before the competent court according to the law or the applicable international treaty.
- Dutch law applies exclusively to every agreement between MarketingTracer and the Client.
- If a version of the present terms and conditions in a language other than the Dutch language applies to the agreement between MarketingTracer and the Client, what is meant in the Dutch text shall prevail in the interpretation of the text of the provisions. This means that the interpretation of as much as possible must be aligned with what is intended to be agreed in the Dutch text, whereby the parties agree that there must be an as grammatical explanation as possible of the wording of the provisions of these conditions. .
Article 23: Change of conditions
MarketingTracer is authorized to make changes to these terms and conditions. These changes come into effect at the announced time of entry into force and after sending the changed terms and conditions, whether or not electronically, by MarketingTracer to the Client.