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Terms and Conditions:
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Contents

Definitions

    The following capitalized terms (in both the singular and plural) in these Conditions have the meanings stated below:

  • Additional Work: all extra Work at the request of the Client or necessarily resulting from the Work that falls outside the content or scope of the Agreement.
  • Agreement: a document signed by both Parties in which the provision of the Services and the Work to be performed by NND and to be accepted by the Client are recorded.
  • Business Days: regular Dutch working hours (9:00 AM – 5:00 PM CET) and days (Monday to Friday), excluding Dutch national holidays.
  • Client: any (legal) entity who wishes to enter into or has entered into an Agreement with NND.
  • Content: contents of digital media that are audio-visual of nature including but not limited to text, images, animations and videos.
  • Conditions: this set of general terms and conditions of NND as they (may) be amended from time to time.
  • Implementation: applying modifications to existing or introducing completely new systems, websites, accounts and software, and any settings thereof.
  • NND: New North Digital located in Groningen, registered in the Trade Register of the Dutch Chamber of Commerce under number 65386868.
  • Parties: Client and NND jointly.
  • Services: the services and/or products that NND provides to the Client under the Agreement.
  • Work: all actions and operations (to be) carried out by NND for the provision of Services, an assignment given by the Client or that otherwise arise from the execution of the Agreement.
  • Written: written communication, both by letter and by email.

Applicability

  • The Conditions apply to and form an integral part of all offers and quotations of NND, Agreements and any other legal acts, even if they do not lead to or are not related to an Agreement, related thereto between NND and the Client or its legal successor.
  • The applicability of generally applied purchase or other conditions of the Client is excluded, unless NND has explicitly indicated otherwise in Writing.
  • Any departures from these Conditions are only valid if they have been agreed explicitly in writing by NND and the Client, and they only apply to the specific Agreement for which they were agreed.
  • In the event of a conflict between provisions in an Agreement and these Conditions, the provisions in the Agreement will prevail.
  • In the event of a conflict between these Conditions and a specific Annex, the provisions in the specific Annex(es) will prevail.
  • 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.
  • NND is entitled to amend the Conditions at any time.
  • NND informs the Client about amendments.
  • Amendments will take effect 30 days after informing the Client, unless the Client has protested against the amendments within the period of 30 days.
  • In that case, the Client has the option to terminate the Agreement subject to a notice period of 60 days, whereby the old Conditions will continue to apply for the duration of the notice period.
  • If NND does not always require strict compliance with these Conditions, this does not mean that the provisions thereof do not apply, or that NND would in any way lose the right to require strict compliance with the provisions of these Conditions in other cases.
  • By signing an Agreement with NND, the Client declares having taken notice of these Conditions and agrees to them.
  • The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is hereby excluded.

Quotation and Agreement

  • Quotations made by NND, in any form, are without obligation.
  • A quotation from NND is valid for 30 days, unless otherwise stated on the quotation.
  • If the Client accepts a quotation, NND has the right to revoke the quotation 5 Business Days after receipt of the acceptance.
  • Quotations from NND are based on information provided by the Client or on behalf of the Client.
  • The Client guarantees the accuracy and completeness of all provided information and guarantees that all essential information for the design and execution of the Agreement has been provided.
  • Indications of costs, hours, budgets, results, delivery times and any other preliminary calculations in quotations are only indicative in nature and no rights or expectations can be derived from them by the Client nor do they automatically apply to future quotations or Agreements.
  • All contents of quotations and agreement made by NND are subject to programming and typing errors or spelling mistakes.
  • NND is not bound by such errors and/or spelling mistakes.
  • If the offer or quotation is based on information provided by the Client and this information changes or proves to be incorrect or incomplete, NND has the right to adjust the stated prices, rates and/or delivery times at all times.
  • An Agreement between the Parties is concluded by Written confirmation by the Client of an unchanged, valid and Written quotation from NND or when NND has started carrying out the Work at the request of the Client.
  • Each Agreement is entered into for an indefinite period unless both Parties have agreed otherwise in writing in the Agreement.
  • Termination of an Agreement takes place in Writing with due regard for a period of notice of 60 days, unless both Parties have agreed otherwise in writing in the Agreement.
  • A fixed-term Agreement cannot be terminated prematurely by the Client.
  • After the expiry of the term of the Agreement with a fixed term, the Agreement will be automatically extended for the same period, unless one of the Parties terminates the Agreement in Writing with due regard for a period of notice of 60 days before the term, unless both Parties have agreed otherwise in writing in the Agreement.
  • The rights and obligations under any Agreement cannot be transferred by the Client to a third party without the Written consent of NND.

Price and payment

  • The Client owes NND compensation in accordance with the Agreement.
  • All prices are in euros and exclude sales tax (VAT) and other levies imposed by the government.
  • Prices are based on execution during normal Business Days.
  • For the execution of Services outside Business Days by NND, as a result of a request from the Client, NND is entitled to charge this to the Client as Additional Work.
  • All prices are exclusive of any additional expenses, such as travel and accommodation costs.
  • The Client will reimburse NND for travel and other expenses incurred in providing such Services.
  • NND is entitled to adjust the agreed prices annually and to apply an inflation correction at least once a year.
  • Invoicing takes place monthly, on the first day of the month, prior to the execution and delivery of the Services, unless otherwise agreed in Writing.
  • Payment of invoices by the Client must be made within 14 days after the invoice date, unless otherwise agreed in Writing.
  • If the Client believes that the invoice amount charged is incorrect, the Client can make objections known to NND in Writing up to 14 days after the invoice date.
  • After receiving the objection, NND will conduct an investigation into the correctness of the invoice amount.
  • The outcome of this will be communicated to the Client in Writing.
  • If the objection is justified, NND will credit the invoice in question and send a new invoice, the payment term for which will also be 14 days after that invoice date.
  • If the objection is unfounded, NND will inform the Client in Writing, after which a payment term of 7 days applies for the invoice in question.
  • If the direct debit is not successful, the Client will be notified and a different payment term will be determined.
  • The Client is in default 14 days after the payment term of 14 days after the invoice date has expired.
  • From the moment default occurs, the Client owes 1% interest per month on the amount due or the statutory interest, if higher.
  • If the Client is in default or fails to fulfill one or more of its payment obligations, all extrajudicial costs will be borne by the Client.
  • The extrajudicial costs are set at 15% of the outstanding sum or claim, with a minimum of €150.00.
  • Any reasonable legal and enforcement costs incurred will also be borne by the Client.
  • In the event of bankruptcy, liquidation or suspension of payments or debt restructuring in the context of the WSNP, the claims of NND on the Client and the obligations of the Client towards NND are immediately due and payable.
  • If the Client fails to meet its payment obligations, NND is entitled to suspend and/or discontinue the provision of the Services to the Client.

Changes and Additional Work

  • The Client can request NND to change the Agreement.
  • Changes to the Agreement between the Parties are only valid from the moment these changes have been accepted in Writing by both Parties by means of a supplementary or amended Agreement.
  • Additional Work will be charged to the Client on the basis of actual costs, regardless of any preliminary indications, at the usual hourly rates that apply at that time, unless explicitly agreed otherwise in writing.
  • NND is never obliged to perform Additional Work and NND may require that a separate Agreement be concluded for this purpose.
  • The Client accepts that the time schedule or objectives of the Agreement may be affected if the scope of the Agreement is changed or by Additional Work.

Obligations of the Client

  • The Client is obliged to provide all data and/or information that NND indicates it needs for the correct execution of the Agreement and/or of which the Client knows or can reasonably know that NND needs that information for the correct execution of the Agreement, to be made available in the form, in multiples and in the manner as NND wishes and, moreover, in such a timely manner that NND can execute the Agreement without delay.
  • NND has the right to suspend the execution of the Agreement until the Client has fulfilled the aforementioned obligation.
  • The Client is obliged to comply with all obligations towards third parties insofar as these affect the execution of the Agreement by NND.
  • NND is entitled to suspend the provision of the Services to the Client as long as the Client has not or not fully fulfilled its obligations to third parties.
  • The Client is obliged to impose all guidelines, recommendations and advice from NND regarding Content or Optimization on third parties.
  • NND is not responsible and liable for negative consequences for the Work and/or the execution of the Agreement by NND due to non-compliance by third parties with any guidelines, recommendations or advice provided by NND.
  • Insofar as it is not clear from the content or nature of the Agreement, the Client guarantees to NND the accuracy, completeness and reliability, legality and security of the data and information, information carriers, electronic files, software, etc., provided by or on behalf of the Client.
  • Unless the content of the Agreement indicates otherwise, NND is not obliged to conduct a specific investigation into the accuracy and completeness of the information provided by the Client.
  • If facts or circumstances arise that the Client knows or could reasonably know are or could be important for the execution of the Agreement by NND, the Client will immediately fully inform NND of those facts and circumstances.
  • The Client will inform NND at least 10 Business Days in advance of plans or activities that require NND Work.
  • In the event of requests from the Client at shorter notice, NND reserves the right not to implement the request without this entitling the Client to terminate the Agreement in any way whatsoever or to consider the Work arising from the Client’s request and to be invoiced as Additional Work.
  • The additional costs resulting from the delay in the execution of the Agreement arising from failure to provide the required information, data or files, or not making them available on time or properly, will be borne by the Client.
  • The Agreement, Services and Work of NND relate to a field or industry that is subject to strict laws and regulations.
  • As the responsible party, the Client is obliged to comply with these laws and regulations and guarantees to NND that all actions that the Client carries out in this context are lawful.
  • The Client indemnifies NND against damage and claims from third parties in the context of those laws and regulations.
  • To the extent that NND provides usernames and/or passwords to the Client in the context of the Agreement, the Client is responsible for these usernames and/or passwords and fully liable for any misuse of the usernames and passwords, unless such misuse is the result is due to intent or gross negligence on the part of NND.
  • To the extent that NND provides usernames and/or passwords in the context of the Agreement, the Client is prohibited from providing these usernames and/or passwords to third parties without NND’s permission.
  • If Work must be carried out on location at the Client’s premises or at a location designated by the Client, the Client is responsible for ensuring that the location and the required facilities are made available to NND free of charge.
  • The Client will also ensure an adequate and safe workplace.
  • The Client will always inform NND in Writing without delay of any changes in the trade name and/or statutory name of the legal entity, contact persons, business, visiting and/or postal address, email, telephone number, invoicing details, bank account details and others for the execution of the Agreement relevant data.
  • To the extent that activities require this, the Client authorizes the NND to carry out transactions regarding advertising placements with relevant providers of advertising space on behalf of the Client.
  • All costs arising from these transactions are borne by the Client and the Client will pay all directly to the providers of advertising space.
  • If NND issues advice or proposes Implementations to the Client, the Client is responsible for applying the advice and performing Implementations in a responsible and safe manner, for example via test environments.
  • The Client is expressly prohibited from distributing information, offering facilities and functionalities or exhibiting behavior through or via accounts, websites and systems hosted or managed by NND if and insofar as this is contrary to:
    1. applicable laws and regulations, including regulations of self-regulating bodies;
    2. the Agreement;
    3. reasonable directions and instructions issued by NND;
    4. or common moral behavior or public order such as 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.

Execution

  • NND will perform the Agreement to the best of its knowledge and ability and in accordance with the standards of the profession.
  • The obligations of NND 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.
  • If it has been agreed that the Agreement will be executed in phases, NND may suspend the execution of the parts from a later phase until the Client has paid the invoices relating to the earlier phase.
  • NND will generally carry out Work on Business Days and NND determines the manner in which and by which persons the Work will be carried out.
  • NND will take into account the wishes expressed by the Client as much as possible.
  • If and to the extent that this is required for the proper execution of the Agreement, NND has the right to have certain Work performed by a third party(ies).
  • If a term has been agreed in the Agreement for the completion of certain Work, this is always an indication but never a strict deadline.
  • NND takes into account the applicable laws and regulations when carrying out Work.

Complaints

  • A complaint regarding the Work performed must be communicated to NND in Writing stating the nature and grounds of the complaints within 14 days after the Work has been performed, within 14 days after the date of dispatch of the documents/information about which the Client is complaining, or within 14 days after the discovery of a defect if the Client demonstrates that the defect could not have been discovered earlier.
  • A complaint regarding a received invoice must be submitted to NND in Writing within 14 days of the invoice date, stating the nature and grounds of the complaints.
  • A complaint does not suspend the Client’s obligation to make payment.
  • If the complaint is not filed in a timely manner, all rights of the Client in connection with the complaint will be forfeited.
  • If NND determines that a complaint has been made correctly, NND has the choice between adjusting the price charged, improving or re-performing the rejected Work free of charge or not performing the Agreement in whole or in part or no longer performing it in return for a refund in proportion to the compensation already paid by the Client.

Suspension and dissolution

  • NND has – in addition to legal powers to suspend and dissolve – the right, without judicial intervention and without being obliged to pay any form of restitution or compensation, to terminate the Agreement in whole or in part with immediate effect and/or to suspend the execution of the Agreement. suspend if one of the following events occurs:
    1. the Client does not fulfill the obligations under the Agreement, does not do so fully or does not do so on time;
    2. NND has become aware of information after concluding the Agreement that gives good reasons to fear that the Client will not fulfill its obligations;
    3. a request for a (provisional) suspension of payments has been submitted for the benefit of the Client;
    4. a request for bankruptcy has been submitted on behalf of the Client;
    5. seizure has been made at the expense of the Client;
    6. a decision has been reached for the dissolution and/or liquidation of the Client;
    7. The Client has been placed under guardianship or administration in the context of the WSNP;
    8. The Client otherwise loses the power to dispose of or act with regard to its assets or parts thereof.
  • The Client is obliged to immediately notify NND upon occurrence of one or more of the events referred to in Article 9.1.
  • In the event that NND terminates the Agreement, all receivables and claims that NND has against the Client are immediately due and NND reserves the right to (additional) compensation.

Confidentiality and secrecy

  • The Parties are not permitted to provide information that is or could be confidential in nature to third parties or to use the information for a purpose other than that for which it was obtained.
  • All Parties are subject to a duty of confidentiality with regard to such information.
  • Information is considered confidential if this has been communicated by one of the Parties or if this arises from the nature of the information.
  • In the event that one of the Parties is obliged on the basis of a legal provision or a court decision to provide confidential information to a third party or parties designated by law or the competent court, and the Party in question cannot rely on this a right of refusal, then that Party is not obliged to pay compensation or indemnification towards the other Party.
  • The parties will impose their obligations under this article on a third party or parties engaged by them.
  • NND is entitled to use the name, logo and a description of the Client, the Services purchased by the Client, the working method used and the – relative – results achieved as a reference and/or as a customer case.
  • The obligations under this article and NND’s rights under article 10.4 also remain in force indefinitely after termination of the Agreement.

Personal data

  • If NND needs to take note of personal data in the execution of the Agreement, the Client is obliged, when providing this personal data or other confidential data that NND will not need, to omit or make it illegible as much as possible and to store the confidential data in a securely transferred to NND.
  • The foregoing does not affect NND’s obligation to treat confidential data provided to it confidentially and to protect it appropriately.
  • NND has taken appropriate technical and organizational measures to secure the processing of personal data.
  • The Client guarantees that the processing of personal data by NND in the context of the Agreement is not unlawful and does not infringe the rights of the person(s) involved.
  • In this context, the Client indemnifies NND against damage and claims from third parties relating to infringement of third party rights.
  • If a data breach occurs involving personal data processed in the context of the Agreement, NND will inform the Client after becoming aware of the data breach.
  • In that case, NND will, if necessary, independently report this to the Dutch Data Protection Authority.
  • In the event of serious data breaches, the Parties will discuss who will inform any data subject(s) about the data breach.
  • To the extent that activities of NND, the Client or any third party in the context of the Services include the placing and reading of cookies or related techniques on end-user devices or the collection or processing of data in any way whatsoever, the Client acknowledges full responsibility for compliance with all applicable laws and regulations regarding those cookies, techniques and data processing and the Client indemnifies NND against any responsibility, damage and claims from third parties.
  • NND is not liable for damage resulting from the Client’s failure to comply with the General Data Protection Regulation (GDPR) or other applicable privacy laws and regulations.
  • The Client indemnifies NND against claims from third parties based on such damage.
  • The indemnification also applies to the costs that NND has had to incur in connection with those claims, including the legal costs of legal proceedings and the costs of any fines imposed on NND.

Intellectual property

  • Unless explicitly determined otherwise in the Agreement, all intellectual property rights to all the Services provided within the framework of the Agreement, as well as all other materials or information which NND has made available will be vested exclusively in NND and/or its licensors.
  • Nothing in these Conditions and/or the Agreement implies a transfer of intellectual property rights.
  • The Client will obtain solely the non-exclusive and nontransferable right of use to the Services and any materials provided for the purposes stipulated in the Agreement, on the conditions stipulated in the Agreement and for the duration of the Agreement.
  • Unless explicitly stipulated otherwise in writing, the right of use granted applies only for the Netherlands.
  • The documents provided by NND, including working methods, advice, designs, reports, analyses, schedules, templates, (campaign) structures, software and scripts, presentations, spreadsheets, (reporting) dashboards, images, models and other products/Services of NND, to the Client are exclusively intended to be used by the Client within its own company and for the purpose of the Agreement.
  • The Client is not permitted to publish and/or reproduce information obtained in any form.
  • This includes, among other things, editing, selling, making available, distributing and integrating – with or without editing – into networks, except that such publication and/or duplication is permitted in writing by NND and/or such publication and /or duplication results from the nature of the Agreement with NND.
  • In the event of (interim) termination of the Agreement, the foregoing will remain in force.
  • Usage rights and access to software provided by NND, including dashboards, tools and reporting resources, are limited to read rights or ‘view-only’.
  • The Client is not permitted to remove and/or alter any identifiers concerning intellectual property rights from the results of Services.
  • NND explicitly does not relinquish its personality rights referred to in Article 25 of the Dutch Copyright Act [Auteurswet].
  • NND reserves the right to use the knowledge acquired during the execution of the Agreement for other purposes insofar as no confidential information from the Client is provided to third parties.
  • The Client indemnifies NND against claims from third parties regarding infringements of intellectual property rights.

Liability

  • NND is only liable to the extent apparent from this article.
  • The same applies to third parties engaged by NND for the execution of the Agreement.
  • Liability of NND for indirect damage, consequential damage, lost profits, lost savings, reduced goodwill, damage due to business stagnation, damage as a result of claims from Client’s customers, mutilation or loss of data, damage related to the use of equipment prescribed to NND by the Client goods, materials or software from third parties, damage related to the use of suppliers prescribed by the Client to NND and all other forms of damage than those mentioned in Article 13, on whatever grounds, are excluded unless there is gross negligence or intent.
  • NND is only liable for direct damage caused by one (or more related) attributable shortcomings in the fulfillment of the obligation(s) arising from the Agreement.
  • Direct damage should only be understood to mean:
    1. the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions.
    2. any reasonable costs incurred to ensure that NND’s defective performance complies with the Agreement, insofar as these can be attributed to NND.
    3. reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of direct damage as referred to in this article.
  • If NND is liable for any damage, NND’s liability is at all times limited to a maximum of the amount invoiced for the Agreement, or at least for that part of the Agreement to which the liability relates.
  • A maximum of €5,000 (five thousand euros) applies.
  • NND is not liable for damage to the Client caused by the delayed handling of the Work and delivery of Services due to suspension.
  • NND has the right at all times, at its own discretion, if and to the extent possible, to undo or limit the damage suffered by the Client, whereby the Client must provide all possible cooperation.
  • If the Client shares login details or other access codes with NND, NND is not liable for damage caused by hackers or other unauthorized persons who give themselves access to the Client’s websites and other systems.
  • The Client indemnifies NND against all claims from third parties that are directly or indirectly related to the execution of the Agreement, including but not limited to claims from third parties due to damage caused by the Client providing NND with incorrect or incomplete information, unless the Client demonstrates that the damage is not related to culpable acts or omissions on its part, or is caused by intent or gross negligence on the part of NND.
  • The condition for the existence of any right to compensation is that the Client reports the damage in Writing to NND as soon as possible after it has occurred.
  • Any claim for damages against NND will be forfeited upon the expiration of 6 months after the claim arose.

Force majeur

  • In the event of force majeure, there is no attributable shortcoming in the execution of the Agreement by the Parties.
  • Force majeure includes interruptions of the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, shortcomings of NND’s suppliers, shortcomings of third parties engaged by the Parties, disruptions in the connection to the internet, network attacks, Distributed Denial or Service (DDoS) attacks, failures in equipment and/or (telecommunications) networks and other unforeseen circumstances.
  • If the force majeure continues for at least 90 days, the Parties are entitled to terminate the Agreement without being obliged to pay any damage, reversal or compensation in connection with this termination.

Competent court and applicable law

  • Dutch law applies to these Conditions and the Agreements between the Parties.
  • Disputes that arise between NND and the Client within the framework of, or in connection with, these Conditions, the annexes and/or the Agreement will exclusively be submitted to the competent court in the district of NND’s registration address.
  • The parties will first attempt to resolve a dispute by mutual agreement before appealing to the court.
Version valid from: December 3, 2023
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