Article 1 – Definitions
Service Provider: Driftly Digital, the company that provides services and/or goods.
Client: the natural or legal person who has entered into an agreement with the Service Provider.
Agreement: any mutual acceptance, confirmed in writing or by email, of delivery of one or more products or services of the Service Provider.
Services: all work and other activities that are the subject of the closed agreement.
Goods: all items that are the subject of the closed agreement.
Quotation: all offers and price quotes from the Service Provider.
In Writing: all offers and price quotes from the Service Provider. In Writing: both traditional correspondence and digital correspondence, directed to the email address that the Service Provider has made known.
Payment Obligation: the obligation of the Client to pay the price and the other amounts that result from the General Terms and Conditions and the Agreement.
Obligation of Effort: an obligation of the Service Provider to endeavor to the best of their ability to achieve a certain result.
Obligation of Result: an obligation of the Service Provider to achieve an agreed-upon result.
Intellectual Property Rights: all rights of intellectual property and related rights, such as copyright, trademark rights, patent rights, design rights, trade name rights, database rights, and neighboring rights, as well as rights on know-how.
Article 2 – Applicability of general terms and condition
- These conditions apply to all quotations, offers, activities, agreements, and deliveries of services or goods by or on behalf of the service provider.
- Deviation from these conditions is only possible if explicitly agreed upon in writing by both parties.
- The agreement always contains obligations of effort for the service provider, not obligations of result.
Article 3 – Payment
- The Client pays the Service Provider a monthly amount as agreed in the Service Agreement. This amount is exclusive of the actual costs of campaigns charged by external platforms.
- Costs incurred by the Service Provider in executing the assignment that are not included in this agreement are not eligible for compensation, unless the Client has approved these in advance in writing.
- Depending on what has been agreed upon, the Service Provider sends the Client an invoice for the services or authorizes the Client to allow the Service Provider to debit the due amount monthly from the Client’s account via SEPA direct debit.
- The Service Provider sends an invoice to the Client for the work performed. The invoice will meet the legal requirements and will serve as proof of the automatically debited payment.
- It is the Client’s responsibility to ensure that there is sufficient balance in the account at the time of the direct debit.
- If the direct debit cannot be completed due to insufficient funds or for other reasons, the Client will be charged an interest of 1.5% per month on the outstanding amount of the invoice(s).
- In the event that the direct debit cannot be completed after a reminder, the Client will be charged extrajudicial collection costs amounting to 15% of the outstanding amount of the invoice(s), with a minimum of €250.00.
- If the Service Provider has to take legal action due to non-compliance with the payment obligations by the Client, the actual costs incurred by the Service Provider (such as costs for a lawyer, bailiff, and court fees) are for the Client’s account, on top of the costs mentioned in the previous points.
- Payments made by the Client will first be applied to cover all outstanding costs and interest and then to pay the oldest outstanding invoices, even if the Client indicates that the payment is intended for a later invoice.
Article 4 – Offers and Quotations
- Offers made by the service provider are valid for a maximum of 2 months unless a different acceptance term is stated in the offer. If the offer is not accepted within that set term, the offer expires.
- Delivery times in quotations are indicative and do not give the client the right to dissolve the agreement or claim damages in case of exceeding them, unless expressly and in writing agreed upon otherwise by the parties.
- Offers and quotations do not automatically apply to repeat orders. This must be expressly and in writing agreed upon by the parties.
Article 5 – Prices
- Prices mentioned in the service provider’s offers, quotations, and invoices are exclusive of VAT and any other government levies unless explicitly stated otherwise.
- The prices of goods are based on the cost prices known at that time. Increases in these that the service provider could not have foreseen at the time of making the offer or the conclusion of the agreement may lead to price increases.
- Regarding the provision of services, parties can agree on a fixed price at the conclusion of the agreement.
- If no fixed price has been agreed upon, the fee regarding the service provision can be determined based on the actual hours spent. The rate is calculated according to the service provider’s usual hourly rates, applicable for the period in which the work is performed, unless a different hourly rate has been agreed upon.
- If no rate based on the actual hours spent has been agreed upon, a target price for the provision of services is agreed upon, where the service provider is entitled to deviate by up to 10%. If the target price is going to exceed more than 10%, the service provider must inform the client in time as to why a higher price is justified. In that case, the client has the right to cancel the part of the order that exceeds the target price plus 10%.
Article 6 – Execution
- The Service Provider will perform the agreement to the best of their ability and from a professional point of view.
- The Service Provider cannot guarantee that the performed work will always achieve the desired result by the Client. This means that the Service Provider is not responsible for the number of appointments and/or clients that result from the collaboration.
- The Service Provider maintains a guarantee policy that is only valid when carrying out a campaign if this has been agreed upon in a Service Agreement signed by both parties.
- If a guarantee policy has been agreed upon, it is only valid when a regular lead generation campaign is conducted. If the Client wishes to receive more information from interested parties (other than name and/or company name, email address, and telephone number), this 2 Versie 1.1 – eindversie oktober 2023 guarantee is void. Finally, the guarantee is only valid when the campaign is active for 30 days without interruptions, the entire advertising budget is used, and the Service Provider is given full freedom in the design and approach of the advertising campaigns.
- The deadlines that apply to the Service Provider are not binding unless explicitly and in writing agreed upon otherwise in the agreement. A deadline agreed upon for the Service Provider does not commence until after the agreement’s conclusion and after all necessary information for the execution of the agreement is in the possession of the Service Provider. A deadline agreed upon for the Service Provider is extended at least by the number of days between the agreement’s conclusion and the moment the necessary information for the execution of the agreement has been obtained by the Service Provider.
- The Service Provider reserves the right to have the assignment carried out in whole or in part by third parties.
- If it has been agreed that the agreement will be executed in phases, the Service Provider can suspend the execution of subsequent phases until the Client has approved and/or paid for the results of the preceding phase.
Article 7 – Price Indexation
- The prices and hourly rates agreed upon at the inception of the agreement are based on the price level in effect at that time. The service provider has the right to adjust the fees charged to the client annually as of January 1.
- Adjusted prices, rates, and hourly wages will be communicated to the client as soon as possible.
Article 8 – Information Provision by the Client
- The client shall make available all information relevant to the execution of the assignment to the service provider.
- The client is obliged to provide all data and documents that the service provider believes are necessary for the correct performance of the assignment in a timely manner and in the desired form and manner.
- The client guarantees the accuracy, completeness, and reliability of the data and documents provided to the service provider, even if they come from third parties, unless the nature of the assignment dictates otherwise.
- The client indemnifies the service provider against any damage in any form resulting from non-compliance with the requirements set out in the first paragraph of this article.
- If and insofar as the client requests, the service provider will return the relevant documents.
- If the client does not, not timely, or not properly provide the data and documents demanded by the service provider, and the execution of the assignment is delayed as a result, the resulting additional costs and extra fees will be charged to the client.
Article 9 – Withdrawal of Assignment
- The client is free to terminate the assignment to the service provider at any time.
- When the client withdraws the assignment, the client is obliged to pay the due salary and the expenses incurred by the service provider.
Article 10 – Execution of the Agreement
- The service provider will execute the agreement to the best of their knowledge and ability and in accordance with the requirements of good workmanship.
- The service provider has the right to have work performed by third parties.
- The execution will take place in mutual consultation and after written agreement and payment of the possibly agreed upon advance.
- It is the client’s responsibility that the service provider can start on the assignment in a timely manner.
Article 11 – Duration of the Assignment Contract
- The agreement between the client and the service provider is entered into for an indefinite period unless the nature of the agreement dictates otherwise, or the parties have expressly and in writing agreed otherwise.
- If parties have agreed upon a term for the completion of certain activities within the duration of the agreement, this is never a strict deadline. In the event of an overrun, the client must formally notify the service provider in writing.
Article 12 – Modification of the Agreement
- If during the execution of the agreement it appears necessary for the proper execution of the assignment to modify or supplement the work to be performed, the parties will adjust the agreement accordingly in a timely manner and by mutual agreement.
- If the parties agree that the agreement will be modified or supplemented, this may affect the completion time of the execution. The service provider will inform the client of this as soon as possible.
- If the modification or supplement to the agreement has financial and/or qualitative consequences, the service provider will inform the client about this as soon as possible in writing.
- If a fixed fee has been agreed upon by the parties, the service provider will indicate to what extent the modification or supplement to the agreement will result in exceeding this fee.
Article 13 – Force Majeure
- In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by the service provider to fulfill any obligation towards the client cannot be attributed to the service provider in the event of a circumstance independent of the service provider’s will, which partially or fully prevents the fulfillment of their obligations towards the client or because of which the fulfillment of obligations cannot reasonably be demanded of the service provider. Such circumstances include defaults by suppliers or other third parties, power failures, computer viruses, strikes, adverse weather conditions, and work interruptions.
- If a situation as referred to above occurs resulting in the service provider being unable to meet its obligations towards the client, those obligations will be suspended for as long as the service provider is unable to meet them. If the situation mentioned in the previous sentence has lasted for 30 calendar days, both parties have the right to dissolve the agreement in whole or in part in writing.
- In the event referred to in the second paragraph of this article, the service provider is not obliged to compensate any damage, even if the service provider benefits from the force majeure situation.
Article 14 – Setoff
- The client waives the right to offset any debt to the service provider with a claim against the service provider.
Article 15 – Suspension
- The client waives the right to suspend the performance of any obligation arising from this agreement.
Article 16 – Transfer of Rights
- Rights of a party from this agreement cannot be transferred without the prior written consent of the other party. This provision serves as a clause with property-law effect as referred to in Article 3:83 paragraph 2 of the Dutch Civil Code.
Article 17 – Expiry of Claims
- Any right to compensation for damage caused by the service provider shall in any event expire 12 months after the event from which the liability directly or indirectly arises. This does not exclude the provisions of Article 6:89 of the Dutch Civil Code.
Article 18 – Guarantee
- The parties have entered into an agreement with a service-providing character, which contains only an obligation of effort for Driftly Digital and therefore no obligation of result, unless explicitly agreed otherwise.
Article 19 – Insurance
- The client is obligated to adequately insure and keep insured the goods delivered that are necessary for the execution of the underlying agreement, as well as goods of the service provider that are present with the client and goods delivered under retention of title, against risks including fire, explosion, and water damage as well as theft.
- The client shall provide the policy of these insurances for inspection upon first request.
Article 20 – Liability for Damage
- The service provider is not liable for damage arising from this agreement, unless the service provider has caused the damage intentionally or through gross negligence.
- In the event that the service provider is liable to pay damages to the client, the damages will not exceed the fee.
- Any liability for damage arising from or related to the performance of an agreement is always limited to the amount paid out in the respective case by the professional indemnity insurance(s). This amount will be increased by the amount of the deductible according to the respective policy.
- The limitation of liability also applies if the service provider is held liable for damage that directly or indirectly results from the malfunctioning of the equipment, software, data files, registers, or other items used by the service provider in the execution of the assignment.
- Liability of the service provider for damage resulting from intentional misconduct or deliberate recklessness of the service provider, its management, or subordinates is not excluded.
Article 21 – Liability of the Client
- In the event an assignment is provided by more than one person, each of them is jointly and severally liable for the amounts due to the service provider under that assignment.
- If an assignment is given directly or indirectly by a natural person on behalf of a legal entity, then this natural person can also be the client in a private capacity. This requires that the natural person can be considered as the (co-)policymaker of the legal entity. In case of non-payment by the legal entity, the natural person is personally liable for the payment of the invoice, regardless of whether it has been issued, at the request of the client, in the name of a legal entity or in the name of the client as a natural person or both.
Article 22 – Indemnification
- The client indemnifies the service provider against all third-party claims related to the goods and/or services provided by the service provider.
Article 23 – Complaint Obligation
- The client is obliged to report complaints about the work performed directly in writing to the service provider. The complaint must contain as detailed a description of the deficiency as possible so that the service provider can respond adequately
- A complaint does not under any circumstance lead to an obligation for the service provider to perform work other than agreed upon.
Article 24 – Retention of Title, Suspension Right, and Right of Retention
- Goods and parts delivered to and present with the client remain the property of the service provider until the client has paid the full agreed price. Until that time, the service provider can invoke its retention of title and take back the goods.
- f the agreed advance payments are not made or not made on time, the service provider has the right to suspend the work until the agreed part has been paid. In that case, there is a creditor’s default. A late delivery cannot be attributed to the service provider in that case.
- The service provider is not authorized to pledge the items under its retention of title nor to encumber them in any other way.
- If goods have not yet been delivered but the agreed advance payment or price has not been paid according to the agreement, the service provider has the right of retention. The item will not be delivered until the client has paid in full and in accordance with the agreement.
- In geval van liquidatie, insolventie of surseance van betaling van opdrachtgever zijn de verplichtingen van opdrachtgever onmiddellijk opeisbaar.
Article 25 – Intellectual Property
- Unless otherwise agreed upon in writing by the parties, the service provider retains all intellectual property rights (including copyright, patent right, trademark right, design rights, etc.) on all designs, drawings, writings, data carriers or other information, quotations, images, sketches, models, mock-ups, etc.
- The intellectual property rights mentioned may not be copied, shown to third parties, made available, or otherwise used without the written permission of the service provider.
- The client is obliged to maintain the confidentiality of the confidential information provided by the service provider. Confidential information includes, at least, what this article pertains to, as well as company data. The client is obliged to impose a written confidentiality obligation on their personnel and/or third parties involved in the execution of this agreement, to the extent of this provision.
Article 26 – Client’s Property
- Campaigns developed and executed by the Service Provider during the term of this agreement are the exclusive property of the Service Provider. The intellectual property rights concerning these campaigns are vested in the Service Provider.
- Upon termination of the agreement, for any reason, the Client is not allowed to reuse, reactivate, reproduce, distribute, make public, or otherwise use or allow the use of the campaigns developed and executed by the Service Provider, including copying campaigns for use elsewhere, without the express written permission of the Service Provider.
- During the term of the agreement, the Client is not allowed to copy, reproduce, distribute, make public, or otherwise use or allow the use of the campaigns developed and executed by the Service Provider for other purposes or at other locations, without the express written permission of the Service Provider.
- The Client is aware that any unauthorized copy or use of the campaigns constitutes a breach of the agreement and may lead to further legal steps.
- If the Client terminates the agreement, the Service Provider has the right, unless explicitly agreed otherwise, to immediately stop, reverse, and/or remove all ongoing campaigns. This includes, but is not limited to, deactivating campaign expressions, removing online content, and retracting all related marketing materials.
- The Service Provider reserves the right to request compensation for the transfer of ownership rights or usage rights of the campaigns to the Client if such a transfer is agreed upon.
- Any damage resulting from the unlawful use of the campaigns by the Client after the termination of the agreement will be fully at the expense and risk of the Client. The Service Provider reserves the right to take legal action against the Client in such cases.
Article 27 – Confidentiality
- Each of the parties shall keep confidential any information they receive (in any form) from the other party and all other information concerning the other party that they know or should 6 Versie 1.1 – eindversie oktober 2023 reasonably suspect to be secret or confidential, or information that they can expect to cause damage to the other party if disclosed, and takes all necessary measures to ensure that his personnel also maintain the confidentiality of the said information.
- The confidentiality obligation mentioned in the first paragraph of this article does not apply to information:
- a. that was already public at the time the recipient received this information or subsequently became public without a breach of confidentiality obligation by the receiving party;
- b. that the receiving party can prove was already in their possession at the time it was provided by the other party;
- c. that the receiving party has received from a third party who was entitled to provide this information to the receiving party;
- d. that is made public by the receiving party due to a legal obligation.
- The confidentiality obligation described in this article applies for the duration of this agreement and for a period of three years after its termination.
Article 28 – Penalty for Violation of Confidentiality Obligation
- If the client violates the confidentiality clause of these general terms and conditions, they shall forfeit an immediately due and payable penalty of €5,000 for each violation to the service provider, plus an additional amount of €500 for each day the violation continues. This applies regardless of whether the violation can be attributed to the client. Furthermore, the forfeiture of this penalty does not require any prior notice of default or judicial proceedings, nor does it require the occurrence of any form of damage.
- The imposition of the penalty mentioned in the first paragraph of this article does not affect the other rights of the service provider, including the right to claim damages in addition to the penalty.
Article 29 – Non-solicitation of Personnel
- The client shall not employ any employees of the service provider (or of companies that the service provider has called upon to execute this agreement and who have been involved in the execution of the agreement), nor shall they have them work for them in any other direct or indirect way. This prohibition is valid for the duration of the agreement until one year after its termination. There is one exception to this prohibition: parties can make different arrangements in good business consultation with each other. These arrangements are valid to the extent that they have been recorded in writing.
Article 30 – Modification of General Terms and Conditions
- Driftly Digital is entitled to modify or supplement these general terms and conditions.
- Changes of minor importance can be implemented at any time.
- Driftly Digital will discuss major substantive changes as much as possible in advance with the client.
Article 31 – Applicable Law and Competent Court
- Dutch law exclusively applies to every agreement between the parties.
- The Dutch court, in the district of the client’s choice, is exclusively competent to hear any disputes between the parties, unless the law prescribes otherwise mandatorily.