GENERAL TERMS & CONDITIONS
Applicability
Brand Works Amsterdam (hereinafter BWA) shall provide its services exclusively on the basis of the following General Terms and Conditions. They shall apply to all legal relationships between BWA and the Client, even without having to expressively refer to it.
The version applicable at the time of the conclusion of the contract shall be considered as relevant. Any deviations from this GTC or additional agreements should only be effective if they have been confirmed by BWA in writing.
Any terms and conditions document referred to by the Client is considered non-accepted by default, unless explicitly confirmed by BWA in writing.
BWA’s offers shall be subject to change without notice and non-binding.
These Terms shall apply to all agreements concluded between the BWA and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Definitions & Interpretation
‘Contract’ means the contract between BWA and the Client for the supply of Services governed by these Terms and the Order.
‘Client’ means the individual or business entity who purchases Services from BWA and whose details are set out in the Order.
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Order’ means the order placed by the Client through counter-signing the Company’s Quotation form.
‘Order Form’ means a Quotation form counter-signed by the Client which together with these terms and conditions shall form a binding contract.
‘Quotation’ means the written quotation prepared by the Company which contains its proposals for providing Services to the Clients.
‘Services’ means the services the Company will provide to the Client as specified in the Order.
‘Specification’ means the description or specification of the Services in the Order.
‘Terms’ means these terms and conditions as updated from time to time by the Company.
‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax.
Protection of Intellectual Property
Any potential Clients who invite BWA to develop any concept prior to concluding any principal contracts acknowledge that all linguistic and graphic parts of all concepts developed by BWA and its partners and subcontractors are subject to European copyright law protection. The main applicable copyright directives are the Copyright Term Directive, the Information Society Directive, and the Directive on Copyright in the Digital Single Market. Further applicable international conventions are the TRIPS Agreement, and the Berne Convention.
The potential Client is not allowed to use any parts of the presented concepts without the written approval of BWA.
Confidentiality and Personal Data
The Client shall keep in strict confidence all technical and commercial know-how, specifications, inventions, processes or initiatives which are of confidential nature and have been disclosed to the Client by BWA; and any other confidential information concerning BWA’s business, or its products and services that the Client may obtain. The Client shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Client. This clause shall survive termination of the Contract.
Consultancy Services
The scope of services to be rendered shall be based on the terms presented to the Client in the written agency agreements and project proposals. Any modifications to this scope need to be acknowledged by BWA in a written confirmation and be remunerated with the same applicable rate as the remaining elements of the proposal, unless explicitly stated otherwise by BWA, also in writing.
The Client shall make all required documents available for the rendering of the contracted services to BWA. The Client also needs to notify BWA of all circumstances that are relevant to the execution of the order, even if they become known during the project delivery phase. The Client incurs any costs resulting from the incomplete, incorrect, or subsequently modified project specifications.
The Client is responsible for clearing any content that needs to be shared of copyrights, trademark rights, marks and any third party rights of the same categories or of similar nature for the execution of the project.
Obligations & Warranties
BWA warrants that it will provide the Services as stipulated in the Order or any similar written agreements using reasonable care and skill to conform in all material respects with the Specification.
BWA shall use all reasonable endeavors to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. BWA shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide BWA with adequate delivery instructions or any other instructions relevant to the supply of the Services.
BWA shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
Client’s Obligations & Indemnities
The Client shall provide assistance and technical information to BWA, as reasonably required by BWA in sufficient time to facilitate the execution of an Order or similar written agreement in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to BWA and warrants and undertakes to BWA that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms, web and graphic material submitted by BWA. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by BWA.
The Client shall be obliged to inform BWA immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by BWA.
External Services & Commissioning of Third Parties
BWA shall be entitled to render its services itself, or employ expert third parties as agents, or commission a third party to render such services. Commissioning of third parties shall be done in BWA’s own name, or in the name of the Client. BWA shall select the relevant third party with care, and ensure that it is appropriately qualified.
Fees
Unless otherwise agreed, BWA’s entitlement to fees shall arise for any specific service once the same has been rendered. BWA shall be entitled to ask for advances to cover its expenses. Any stated fees should be stated as net fees plus statutory value added tax. All services which are not expressly covered by the agreed fees shall be paid for separately. All cash expenses incurred by BWA shall be reimbursed by the Client.
The price stated in estimates is based on a qualified estimate of the number of hours required to provide the Services. This is an estimate only and Services shall be invoiced in accordance with the actual number of hours spent in accordance with the price set out in the Order or Quotation and in the event that the price is not so stipulated, the Client shall be charged at the hourly rate specified in BWA’s then current price list. BWA shall be obliged to update the estimate and budgets on an ongoing basis following, among other things, changes made to an Order.
If the Client unilaterally cancels or modifies the previously agreed scope of work without involving BWA, the Client shall pay for all the already provided services according to the agreed rates; and reimburse all costs incurred.
The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a license directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licenses from third party owners and licensors.
Payment
BWA shall invoice its clients monthly, either in advance, or following the services delivered. The Client shall pay each invoice submitted by BWA within 15 days of the date of the invoice. In the event of overdue payment, interest rate shall be accrued on the invoice at the rate of 2 per cent. Late payment shall be considered as constituting a material breach of the Contract, entitling BWA to cancelling the Contract or any other agreement with the Client.
Liability
Except as expressly stated in this Clause, BWA shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.
BWA shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
- Any indirect or consequential loss arising under or in relation to the Contract even though BWA was aware of the circumstances in which such loss could arise;
- Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
- Loss of data; and
- Fraudulent clicks on any of the Client’s accounts managed by BWA.
To the extent such liability is not excluded by this clause or any force majeure, the BWA’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.
Other Limitations of Liability
BWA shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. BWA shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at BWA’s discretion) BWA’s price list applicable from time to time.
BWA shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup etc. and affecting the Services delivered by BWA. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of BWA’s price list applicable from time to time at BWA’s discretion.
BWA shall use all reasonable endeavors to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, BWA shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond BWA’s control and reserves the right to make changes to Services as a result of the same. In addition, BWA shall not be liable for other changes or discontinuation of search engines.
BWA shall not be liable for Services relating to search engine optimization, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, BWA shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like.
BWA shall not be responsible for URLs dropped or excluded by a search engine for any reason.
If the Client does not implement some or all of BWA’s recommendations, BWA shall not bear any liability for any lack of success experienced by the Client relating to the Services.
Force Majeure
Neither party should be held liable for a force majeure event. If a party believes that a force majeure event has occured, such party should immediately inform the other party of the start and end date of the force majeure event.
Miscellaneous
BWA reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and BWA shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
BWA shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
During the term of the Contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by BWA to work on the Services.
The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Law & Jurisdiction
BWA and the Client shall be obliged to attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Contract through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
These terms and conditions and all agreements to which they apply shall be governed by the laws of the Netherlands.
