Version May 2016
1.1 The following terms are capitalised in these General Terms and Conditions
(these ‘Conditions’), both in the singular and in the plural. These terms have
the following meanings:
Agreement: The agreement between Dept and Client concerning provision
of the Service.
Annex: Appendix to these conditions with specific provisions relating to the
Service to be provided.
Client: The natural person or legal entity that has concluded, or is going to
conclude, an Agreement with Dept.
Conditions: These general terms and conditions of Dept including all applicable
Dept: Contracted Party: Dept Holding BV, acting under the name of Dept,
and its group companies that have declared these Conditions to be applicable.
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.
Parties: Dept and Client;
Personal Data: Each piece of information relating to an identified of identifiable
natural person within the meaning of Section 1(a) of the Dutch Personal
Data Protection Act.
Service: The Services to be provided to the Client by Dept pursuant to the
Agreement, including, if applicable, results of these Services.
2.1 These Terms and Conditions apply to and form an integral part of all offers
and quotations of Dept, Agreements and any other legal acts related thereto
between Dept and the Client or its legal successor. The specific Annexes
also apply as agreed between Dept and Client. If this general part of these
Conditions is contrary or incompatible as regards any aspect with the provisions
in the Annex agreed between Dept 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 Dept 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
Dept 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
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
2.7 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.
2.8 Dept is authorised to amend these Conditions. The Client will be informed to
that effect in writing.
2.9 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 Dept are without obligation and must be
regarded as an invitation to enter into an Agreement, unless Dept 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 Dept,
on which Dept has based its offer, are correct and complete. If those details
should prove not to be correct or complete, Dept is entitled to modify the
3.4 An Agreement is formed by written confirmation from the Client of an unmodified
valid quotation and/or offer made by Dept.
3.5 Commissions issued by the Client are irrevocable.
3.6 Dept 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 Dept 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. The obligations of Dept 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
4.2 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.
4.3 If it has been agreed that the Agreement will be performed in phases, Dept
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.
4.4 Dept 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 Dept’s usual rates and Dept will
notify the Client of this situation.
4.5 Dept is entitled to have the Agreement carried out by third parties wholly or
in part, or to engage third parties for the performance of the Agreement.
4.6 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 Services provided do not fulfil the Agreement,
Dept 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 Dept are merely for information
purposes, and no rights or expectations may be derived from them. Only if
the Parties have so agreed is Dept obliged to inform the Client when a cost
estimate or estimate will be exceeded.
5.4 All prices indicated in writing or electronically by Dept are subject to programming
and typing errors or spelling mistakes. Dept is not bound by such errors
and/or spelling mistakes.
5.5 The Parties will set down in the Agreement the date or dates on which Dept
will charge the fee for Services to the Client. The 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, Dept 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.
5.8 Dept 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 Dept.
5.9 During the term of an Agreement, Dept 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%). Dept is entitled
to implement the cost increase at a later date if it finds this desirable from an
administrative point of view.
5.10 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
5.11 Dept 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
5.12 The Client agrees to electronic invoicing by Dept.
5.13 In the event that the financial position of the Client changes during the performance
of the Agreement, Dept will be entitled to forgo further execution
of the Agreement wholly or partially or to change the terms of payment.
6. CHANGES TO THE ASSIGNMENT AND/OR EXTRA WORK
6.1 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, Dept will report this as quickly as possible to the Client.
6.2 If on the basis of an alteration to the Agreement as a result of extra requests
or wishes on the part of the Client Dept 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
7 OBLIGATIONS OF THE CLIENT
7.1 The Client will ensure that all data and/or information that Dept 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 Dept that applies specifically
to the Client’s field of work, are disclosed to Dept in good time, and the Client
will cooperate with Dept insofar as the latter requires. Quotations and offers
issued by Dept as well as the Agreement concluded afterwards are based on
the information disclosed by the Client. Dept 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 Dept
in good time, Dept 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, Dept 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 Dept.
7.4 Insofar as Dept 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 Dept’s consent.
8 TERMINATION, 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.
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. If the Client terminates the Agreement prematurely, Dept is entitled
to charge cancellation costs.
8.3 Dept 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 reasonable 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 Dept has delivered and/or carried
out as well as the related payment obligation will not be undone, unless the
Client proves that Dept is in default with regard to the material part of those
Services. Amounts which Dept 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 all
other materials or information which Dept has made available will be vested
exclusively in Dept and/or its licensors.
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.
9.3 The Client is not permitted to remove and/or alter any identifiers concerning
IP Rights from the results of Services.
9.4 Dept explicitly does not relinquish its personality rights referred to in Article
25 of the Dutch Copyright Act [Auteurswet].
9.5 Dept 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
9.6 Dept 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.
10.1 If within the framework of performing the Services, Dept has to process
Personal Data of customers of the Client, Dept 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 Dept that the data are not unlawful and that they do
not infringe the rights of third parties. The Client indemnifies Dept against all
legal action or claims by third parties, including supervisory authorities and
data subjects, 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 data subjects
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, Dept will cooperate with the obligations to be
complied with by the Client, including transmitting 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 Dept 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. Dept will not process the
Personal Data obtained from the Client for its own purposes.
10.5 Dept 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 Dept 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
10.7 If, despite the fact that Dept has implemented the agreed appropriate
measures, a security incident occurs involving i) destruction, ii) loss, iii) falsification,
iv) unauthorised distribution of and/or access to, or v) any other
form of unlawful processing of Personal Data, the Client cannot hold Dept
liable for any damage sustained as a result of such incident.
10.8 If the Client explicitly requests measures which, in the opinion of Dept, cannot
be regarded as suitable technical and organisational measures, the implementation
thereof will be entirely for the account and risk of the Client, and
Dept does not accept any liability for any damage suffered by the Client or
10.9 The Client indemnifies Dept 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
Dept as referred to in Article 10.8 are not appropriate and/or are otherwise
11.1 The Parties will treat all information they obtain from one another, in any form
whatsoever – written, verbal, electronic or physical – including but not limited
to software, (source) codes, programs, applications, customer details, knowhow,
technical specifications, documentation (‘Confidential Information’) as
strictly confidential, and will keep it secret during the term of the Agreement
and for five (5) 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
i) was already known to it when it was received;
ii) was already publicly known when it was received;
iii) became publicly known after receipt and this is not attributable to the
iv) was received in a lawful manner from third parties along with the right to
communicate it publicly without any obligation to maintain secrecy;
v) 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;
vi) was made public with the approval of the Party disclosing it.
11.4 For the duration of the Agreement and 1 (one) year after it terminates, except
with the prior consent of the other Party, neither Party will employ employees
of the other Party who are or were involved in the implementation of the
Agreement, nor have them work for them in some other manner, directly or
12.1 Except in the event of intent or gross negligence by Dept, the total liability
of Dept due to an attributable failure as regards fulfilment of the Agreement,
illegal act or on any other account, explicitly including any failure to fulfil any
guarantee obligation agreed with the Client, is limited to the compensation of
the direct damage suffered by the Client up to no more than the amount paid
out by Dept’s insurance company. If and insofar as, for whatever reason, no
payment is made on account of the insurance referred to, any liability on the
part of Dept will be limited to compensation of direct damage up to a maximum
of 50% of the price stipulated for the Agreement in question (excluding 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 (excluding VAT and media
fees). However, on no account will be total liability of Dept 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.
12.2 The liability of Dept for damage by death, physical injury or material damage
to property will, in total, never exceed €1,000,000 (one million euros).
12.3 Dept is not liable for indirect damage, consequential 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 Dept by the
Client and damage relating to the engagement of third parties prescribed by
the Client to Dept. Nor is Dept liable due to deformation, destruction or loss
of data or documents.
12.4 Dept is not liable for damage which is covered by any insurance taken out by
12.5 The exclusions and restrictions of Dept’s liability, as described in the above
paragraphs of this Article 12, do not in any way prejudice the exclusions or
restrictions of Dept on account of this general part of these Conditions and
12.6 Unless fulfilment by Dept is permanently impossible, liability on the part of Dept
due to attributable failure in the fulfilment of an Agreement will only arise after
the Client has immediately placed Dept in default in writing, whereby a reasonable
deadline for rectification of such failure has been set and Dept 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 Dept has the opportunity to respond adequately.
12.7 Any right to compensation is always subject to the Client reporting the
damage as quickly as possible, but in any event within thirty (30) days after
it has arisen. If Dept is not informed by the aforementioned deadline, Dept
will be released from any liability in connection with said damage. Any claim
for compensation against Dept will cease to exist simply by the passage of
twelve (12) months after the claim arose.
12.8 The Client bears the full risk and responsibility for its use of the Services. Dept
does not accept any liability for use of the Services by the Client. The Client
indemnifies Dept 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.
12.9 The Client indemnifies Dept 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 Dept, unless and insofar as the Client proves that
the damage was caused by said equipment, software or other materials.
12.10 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 Dept serves during the performance of the Agreement.
13 FORCE MAJEURE
13.1 In the event of force majeure, no attributable failure will apply in the performance
of the Agreement by the Parties.
13.2 Force majeure includes, among other things, disruptions in the supply of
electricity, strikes, riots, government measures, fire, natural disasters, floods,
failure on the part of Dept’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
13.3 If the force majeure lasts at least thirty (30) days, the Parties are entitled to
dissolve the Agreement without being obliged to reimburse any damage,
undo any work or to pay any compensation for such dissolution.
13.4 If Dept 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.
14 TRANSFER OF RIGHTS AND OBLIGATIONS
14.1 Dept can license, sublicense or transfer the rights and obligations arising from
the Agreement to third parties. The Client is not authorised in this respect.
15 SETTLEMENT AND MEDIATION
15.1 If a dispute between the 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.
16 APPLICABLE LAW AND COMPETENT COURT
16.1 These Conditions, the Agreement and the Annexes are exclusively subject
to Dutch law.
16.2 The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
16.3 Disputes that arise between Dept 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 Amsterdam
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 Dept in the
field of consultancy (including but not limited to SEO and Analytics) and/or
training, for the hiring in on an hourly basis of professionals with a duty of
best endeavours, hereinafter referred to as ‘Consultancy’.
2.1 All Consultancy Services provided by Dept will be performed subject to the
provisions in the Agreement.
2.2 In performing the Services, Dept will exercise the greatest possible care with
regard to the Client’s interests. In particular, Dept will ensure the secrecy of
all the data and information made available by the Client to Dept within the
framework of the Agreement.
2.3 If the Agreement has been concluded for Consultancy Services provided by
a particular person, Dept 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 Dept 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) Dept in the provision of Consultancy
Services and will adequately provide (employees of) Dept with all
the information that is reasonably required in order to properly perform the
3 RATES AND WORKING HOURS
3.1 The hourly or daily rate charged by Dept for Consultancy Services is based on
eight-hour days. The Client will reimburse Dept for travel and other expenses
incurred in providing such Services.
3.2 The Client can also order training sessions from Dept (planned lessons
on location at Dept or on-site) at full rates and on days recorded in the
4.1 Supplementary to Article 12 of the General Terms and Conditions, Dept 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 Dept.
1.1 In addition to the general provisions of the General Terms and Conditions,
the provisions set out in this Annex apply if Dept develops, on the Client’s
instructions, a website (hereinafter referred to as the ‘Website’) or application
(hereinafter referred to as ‘App’) and/or executes a related Service
(hereinafter referred to as the ‘Service’). 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 Dept 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 Dept 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 Client’s usual rates until this agreement
has been received.
3 CLIENT’S RIGHT
3.1 Unless the Agreement provides otherwise, Dept grants the Client the exclusive,
transferable and sublicensable right to the Website and/or App and/or
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 will 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 Dept 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 Dept, 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.
4 DELIVERY, INSTALLATION AND ACCEPTANCE
4.1 Dept 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 Dept receives a test report before the end of the test period
as referred to in Article 4.5, 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, 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
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 Dept, 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
Dept of the errors by means of a detailed written test report no later than on
the last day of the test period. Dept will use its best endeavours to remedy
the errors within a reasonable period, whereby Dept is entitled to introduce
temporary solutions or software bypasses or problem-evading restrictions
into the Website and/or App and/or Service.
4.6 The Client may not withhold acceptance of the Website and/or App and/
or Service for (i) reasons other than those that are connected with the
specifications explicitly agreed between the Parties and/or (ii) 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
Dept’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 Dept is not obliged to rectify any errors as referred to in Article 4.5 and Article
4.6 if these have come about as a consequence of:
(i) a modification to the Website and/or App and/or Service, of any nature whatsoever,
which has not been made by Dept;
(ii) use of the Website and/or App and/or Service in a manner which is not
allowed on the basis of the Agreement;
(iii) incorrect use of the Website and/or App and/or Service, by the Client or
another party; or
(iv) 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.
5.1 After the Client has performed the acceptance test and has accepted the
Website and/or App and/or Service, Dept will charge costs for the performance
of (rectification) work unless agreed otherwise in writing.
5.2 Unless agreed otherwise in writing, Dept 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 Dept
guarantee that the Website and/or App and/or Service functions and/or is
accessible without malfunctions, interruptions, or other errors.
5.3 If Dept delivers a Website and/or App and/or Service to the Client which Dept
has obtained from its suppliers, Dept will not be obliged vis-à-vis the Client
to provide any additional guarantee than that which Dept can claim from its
supplier.parties fully cooperate with (employees of) Dept in the provision of
Consultancy Services and will adequately provide (employees of) Dept with
all the information that is reasonably required in order to properly perform
the Consultancy Services.
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 Dept 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, SEO and Analytics, hereinafter referred to
as ‘Advertisement Sales’.
2 PROGNOSES AND ADVICE
2.1 Insofar as Dept has given any advance prognoses regarding possible results
of advertising campaigns given, these are merely estimates and are not
binding upon Dept.
2.2 Services not related to Advertisement Sales, including but not limited to work
in the field of Consultancy, SEO and Analytics advice, are subject to the Annex
3 THE CLIENT’S OBLIGATIONS
3.1 The Client will provide all cooperation reasonably requested by Dept and will
promptly supply Dept 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 Dept 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
Dept, 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 intellectual property rights) of third parties. If the above
does not apply, the Client indemnifies Dept against all claims by third parties
and other damage which results from such claims.
3.3 If the Client supplies advertising material to Dept, via a third party or otherwise,
the Client guarantees that such advertising material meets the
technical specifications communicated by Dept 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 Dept
against all claims by third parties and other damage which results from such
3.4 All orders by the Client relating to Advertisement Sales must be paid, without
withdrawal or cancellation being possible. Dept will charge the cost of Advertisement
Sales in advance, unless the Parties agree otherwise. If no timely
payment has taken place, the Dept 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 Dept.
4 DEPT’S OBLIGATIONS
4.1 At the Client’s request Dept 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 Dept independently prepares advertising material on the Client’s instructions,
Dept will guarantee that the advertising material corresponds to the
applicable law and regulations, and that the advertising material does not
infringe any rights (including intellectual property rights) of third parties,
whereby any liability by Dept 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.
5 ACCESS TO THIRD-PARTY ACCOUNTS
5.1 Insofar as is necessary within the framework of execution of the Agreement,
the Client will provide Dept with all information required for read access to
the accounts with third-parties/service providers.
5.2 Dept will comply with reasonable instructions and guidelines provided by
the Client with regard to the use of the Client’s accounts with third-parties/
service providers. Dept will comply with reasonable instructions and guidelines
provided by the Client with regard to the use of the Client’s accounts
with third-parties/service providers.
5.3 Insofar as the Client uses accounts of Dept with third-parties/service providers,
the Client will always strictly comply with the instructions issued by
Dept in that regard, including but not limited to payment periods. The Client
is liable for and indemnifies Dept 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, Dept 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 (i) 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 (ii) provide end users with satisfactory information in the form of a cookie
policy, before the Client places and reads Cookies. At the request of Dept 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 Dept as a consequence
of the non-fulfilment of this Article 6 and/or violation by the Client of applicable
legislation and regulations, and indemnifies Dept completely against
all claims by third parties, including but not limited to penalties imposed by
supervisory authorities, which are the consequence and/or of are connected
to a violation by the Client of this Article 6.
7.1 Dept’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, presumable tampering with the measuring
systems or a discrepancy of more than 10% between the measuring systems
of Dept and the Client, Dept 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.
8.1 Surcommissions (Surcos), amounts still to be received, other discounts and/
or offsetting will accrue to Dept.
8.2 Dept is not, in any way, liable for any damage as a consequence of advertisements
placed on the Client’s instructions.
1.1 In addition to the General Terms and Conditions, the provisions set out in this
Annex apply if, on the Client’s instructions, Dept 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,
connections and other preconditions of the Client for making access to the
2.2 Arrangements regarding Service levels will be set out in a Service Level
2.3 Dept will endeavour to enable the Hosting Services to be used with as little
disruption as possible.
2.4 Dept 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 Dept’s control.
2.5 Dept 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, Dept
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 Dept, Dept will cooperate with a transfer to
third parties for the applicable Dept rates.
3 THE CLIENT’S OBLIGATIONS
3.1 The Client is expressly prohibited from distributing information or offering
facilities or functionalities through or via websites hosted by Dept if and
insofar as this information is contrary to:
(i) applicable laws and regulations, including regulations of self-regulating
(ii) the Agreement; or
(iii) reasonable directions and instructions issued by Dept.
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 in Articles 3.1,
3.2, 3.3 and/or if Dept receives notification from third parties that this is the
case, Dept 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,
Dept 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 Dept.
3.5 The Client indemnifies Dept 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 Dept resulting from
the non-fulfilment by the Client of one of its obligations from the Agreement,
more particularly from this Article.