In these Terms, the following definitions apply:
- Bannerconnect: Bannerconnect BV, a private limited liability company having its registered office at Poststraat 12, 6135 KR Sittard, The Netherlands, recorded in the Trade Register at the Chamber of Commerce for Limburg, file number 14080785;
- Customer: any legal entity or private individual that has engaged Bannerconnect to manufacture and/or supply any Products and/or provide any Services, as described in the Order Confirmation.
- Product(s): any Product to be manufactured by Bannerconnect for the Customer, as described in the Order Confirmation, including without limitation campaign proposals, advertisements, impressions, clicks, conversions, reports, analyses, banners, advice and other materials or (electronic) files.
- Service(s): any Service to be provided by Bannerconnect to the Customer, as described in the Order Confirmation, including without limitation, campaign proposals, delivery of campaigns, optimizing of campaigns, creation of advertisements, implementation of advertisements, media buying, software development, consultancy, training, support, reporting, measure pixels, hosting, impression trackers, click trackers, view-time trackers, ad tags, data warehousing, big data.
- Order Confirmation: A document (digitally) signed by the Customer and Bannerconnect confirming that the order as included in the Order Confirmation has been accepted at the price and under the terms as communicated by Bannerconnect to the Customer.
- Agreement: The Agreement between Bannerconnect and the Customer, consisting of the (digitally) signed Order Confirmation, these Standard Terms of Business and any other appendices to same.
- Offer: Any Offer made by Bannerconnect in a quotation but not yet confirmed in an Order Confirmation.
- These Standard Terms of Business apply to all Offers and Agreements made by Bannerconnect to manufacture Products and/or provide Services, and all other legal relationships that may ensue.
- Any references by the other party to its standard terms of business do not apply and are expressly excluded.
- Variations apply only to the extent that they have been accepted by Bannerconnect in writing, and only to the agreement that includes the variation.
- If any of these Standard Terms or any of the terms of the Agreement with Bannerconnect proves to be legally invalid, the other terms of the Agreement remain in full force and affect.
- Without prejudice to any act on the part of Bannerconnect to monitor compliance with these Standard Terms of Business, no act or omission by Bannerconnect will preclude the applicability of any of these Standard Terms of Business or Bannerconnect’s right to demand specific performance.
3. Offer and acceptance
- All Offers made by Bannerconnect in any form whatsoever are free of obligation, unless expressly stated otherwise.
- An Offer will be valid for a limited period of thirty (30) days, unless otherwise stated in the quotation. Bannerconnect may withdraw the Offer as long as it has not been accepted. An Offer will not be considered accepted until Bannerconnect has sent a written Order Confirmation to the Customer, after the Customer has accepted Bannerconnect’s offer in writing.
- Bannerconnect cannot be required to adhere to its Offer if the Customer should reasonably understand that the Offer, or any part of it, contains an apparent mistake or typing error.
- If the Offer includes a compound price quote, Bannerconnect is not required to perform any part of the order at a prorated part of the price quote.
- Once it has sent an Order Confirmation, Bannerconnect will start work on the order, provided that it has all the necessary resources available.
- The performance of the Agreement concerns a reasonable efforts obligation [inspanningsverplichting], one that Bannerconnect will perform to the best of its knowledge and ability.
- The Customer shall ensure that all information required by Bannerconnect (to be specified by Bannerconnect or which the Customer should reasonably understand is required to perform the Agreement) is submitted to Bannerconnect in full within (7) days of the Order Confirmation. If this obligation is not met (properly/in full), Bannerconnect may suspend performance of the Agreement and/or charge the Customer for the additional costs arising from the delay. Any loss or damage arising from any incorrect and/or incomplete information submitted by the Customer will also be at the Customer’s risk and expense.
- If, in the course of the performance of the Agreement, it turns out that any alterations or extra work is needed, the parties shall consult in a timely fashion and adjust the Agreement accordingly. Bannerconnect is not liable for any delay in the performance of the Agreement caused by any such alterations or extra work.
- If the parties agree that the Agreement is to be performed in phases, the Customer shall approve the results of each such phase within 14 days of completion. Bannerconnect may suspend any further performance of the Agreement until such approval is granted.
- The Agreement does not cover conducting tests, applying for permits, or assessing whether the Customer’s instructions comply with statutory standards. Bannerconnect is not liable for any ensuing loss or damage or costs or interest. The Customer shall indemnify Bannerconnect from any and all third-party claims against it for costs, damages or interest arising from work performed for the Customer.
5. Third parties
- If and to the extent that Bannerconnect considers this necessary to perform the Agreement, Bannerconnect may, on behalf and at the expense of the Customer, arrange for any work to be carried out by a third party, after Bannerconnect has given the Customer an opportunity to object to the use of such a third party within seven (7) days of being notified by Bannerconnect of its firm intention to engage the services of a third party. Sections 7:404 et seq. of the Dutch Civil Code [Burgerlijk Wetboek] are hereby expressly excluded.
- If, at the Customer’s request, Bannerconnect draws up a budget for third-party costs, this budget will be an estimate only, on the basis of which the Customer can assert no rights. At the Customer’s explicit request, Bannerconnect may request a proposal on behalf of the Customer.
- Bannerconnect will not be liable for any loss, damage, costs or interest arising from any act or omission by a third party. The Customer shall indemnify Bannerconnect from any and all third-party claims against it for costs, damages or interest arising from work performed for the Customer.
6. Delivery terms
- Any term quoted by Bannerconnect for (amongst other things) completion of the Agreement will be an estimate only. If this term is exceeded, the Customer is not entitled to claim any damages or cancel the order in question and/or any previous or subsequent order, or terminate the underlying Agreement.
- In order for Bannerconnect to be in default, the Customer must send Bannerconnect written notice of default in accordance with the statutory rules, allowing it a reasonable grace period.
7. Term and termination
- Unless otherwise stated in the Order Confirmation, the Agreement is made for an indefinite period of time.
- In the event of early termination of all or any party of the order, for any reason whatsoever, the Customer will be required to pay Bannerconnect that portion of the total price that covers the work already performed by Bannerconnect or by a third party engaged by Bannerconnect, plus 15 per cent of the total price.
8. Force majeure
- For the purposes of this Article, force majeure is defined as any circumstance not attributable to Bannerconnect which prevents the Agreement from being performed or Bannerconnect from meeting its obligations under the Agreement (in a timely fashion) (unless Bannerconnect were to make what it considers to be an onerous extra effort and/or incur onerous extra costs). In addition to the definition used in statute and case law, it includes without limitation (civil) war, threat of war, riots, Bannerconnect staff falling ill, non-performance, late or improper performance by a third party on which Bannerconnect depends to perform the Agreement, measures taken by the government, perils of war, fire, water damage, flooding, strike action, sit-in protests, defective equipment, disruption to energy supplies, technical failures, natural disasters, power outages, server problems, etc. Force majeure may be invoked if the circumstances referred to above occur on the part of Bannerconnect or on the part of any third party engaged by Bannerconnect.
- In the event of force majeure, Bannerconnect may (i) suspend performance of or terminate all or any part of the Agreement, (ii) postpone completion of the Agreement until a new time/date, or (iii) have the order carried out by a third party of equivalent standing. The (extra) costs associated with (ii) and/or (iii) will be payable by the Customer.
- If the period in which Bannerconnect is prevented from performing its obligations due to force majeure lasts longer than two months, both Bannerconnect and the Customer may terminate all or any part of the Agreement, without the Customer being entitled to any costs, damages or interest on that basis.
- In so far as Bannerconnect, at the time when the force majeure occurred, had already performed or was able to perform part of its obligations, and the part performed or capable of being performed has independent value, Bannerconnect may invoice the part performed or capable of being performed separately. The Customer must pay those invoices as if they were a separate agreement. Amounts invoiced will not be credited.
- Bannerconnect may also invoke force majeure if the circumstance preventing performance of the Agreement and not attributable to Bannerconnect first occurred after it should have performed its obligations.
- Unless expressly stated otherwise, all prices quoted are in euros and exclusive of VAT and any other statutory charges. Prices quoted are free of obligation in terms of any subsequent orders. If, after conclusion of the Agreement, any of Bannerconnect’s cost components, such as exchange rates, wage costs, social insurance contributions and similar, should increase, Bannerconnect may increase the agreed price accordingly. Bannerconnect may also adjust the agreed price annually to reflect the rise in inflation.
- If changes of any nature whatsoever are made to the original order, giving rise to higher costs, Bannerconnect may increase the agreed price accordingly.
- Unless expressly agreed otherwise, the costs quoted do not include the prices for products or services to be supplied by a third party. Any such additional costs for products or services supplied by a third party will be payable in full by the Customer.
- Unless otherwise agreed, payment must be made into a bank account specified by Bannerconnect within thirty (30) days of the invoice date, without entitlement to any discount, setoff or postponement. In the event of late payment, the Customer shall be in default without any notice of default being required. From the time of default until the time of full payment, the Customer shall owe Bannerconnect interest at a rate of 1.5% a month (any part of a month counting as a full month), unless the statutory rate of interest is higher, in which case it shall owe the statutory rate of interest.
- Bannerconnect will not be required to alert the Customer when an invoice falls due.
- Unless otherwise agreed in writing, the agreed price is to be paid in full. An initial invoice will be sent within 14 days of the Order Confirmation. Bannerconnect will send monthly invoices for the Products and/or Services provided each foregoing month.
- Unless otherwise agreed in writing, Bannerconnect is entitled to request prepayment by the Customer and/or payment guarantees before delivery of the Products/Services, depending on the specific circumstances and to the sole decision of Bannerconnect.
- Unless otherwise agreed in writing, Bannerconnect shall send its invoices by email.
- (Partial) payments will be used first to pay any (internal and external collection) costs, then to pay any interest and, finally, to pay the oldest invoice.
- Bannerconnect’s claim against the Customer becomes immediately payable if, for example, the Customer is declared bankrupt, makes an application for bankruptcy, a suspension of payments, a debt restructuring plan for private individuals or the appointment of a receiver, or if any of the Customer’s assets or receivables are attached or a guardian is appointed to manage any of the Customer’s property, or if the Customer (being a private limited liability company or a general partnership) is dissolved or liquidated or another partner is appointed to the Customer.
- Bannerconnect will also be entitled, over and above the principal and interest, to claim reimbursement for all collection costs (judicial and extra-judicial) arising from the Customer’s failure to pay, to be set at 15% (plus VAT) of the total amount due, subject to a minimum of EUR 200.
- Bannerconnect will also be entitled to suspend its work if the Customer, although asked to do so, fails to provide security for its payment and other obligations arising from the Agreement, without prejudice to the Customer’s obligation to pay for any work already performed by Bannerconnect and reimburse the costs already incurred by it.
- If the Customer fails to pay (in a timely fashion) or to perform any of its other obligations arising from the Order Confirmation, Bannerconnect may:
- suspend any further performance of the Agreement;
- in so far as Bannerconnect has already performed any part of its obligations under the Agreement, and the part performed has independent value, invoice that particular part separately. The Customer must pay that invoice as if it were a separate agreement;
- demand immediate payment of the outstanding invoices, plus any costs and disbursements not yet invoiced;
- terminate the unperformed part of the Agreement, without any notice of default or court order being required, and without prejudice to Bannerconnect’s right to be reimbursed for any loss or damage arising from the termination of the order(s).
- Bannerconnect publishers are paid on a NET60 basis, unless otherwise agreed upon and explicitly specified in writing.
- The Customer is responsible for the information it supplies to Bannerconnect and warrants that the information is accurate and complete. The Customer recognises that, in terms of the details stated in the Order Confirmation, there may be the usual margins and minor changes to the Products and/or Services delivered by Bannerconnect.
- The Customer must report any complaints about defects in the Products and/or Services that are outwardly visible and/or otherwise detectable to Bannerconnect within three (3) days of discovery. The Customer must do so in writing, giving a clear and precise description of the complaint and referring to the invoice sent for the goods in question. The Customer must check the goods carefully and in a timely fashion.
- The Customer must report any defects which were not outwardly visible at the time of delivery, or could not be detected when checked carefully and in a timely fashion, to Bannerconnect in the manner as stated in Article 11.2 within three (3) days of those defects materialising.
- Unless the Customer objects to Bannerconnect’s invoice within three (3) business days from invoice date, the amount invoiced shall be final and binding. The Customer may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent the Customer intends to dispute an invoice, the Customer shall provide a written report to Bannerconnect, within three (3) business days identifying, in detail, the discrepancies, between the invoiced amount and the Customer’s evidence. Bannerconnect may consider such report, but shall have final authority in determining the correct amount.
- Any claim which the Customer may have against Bannerconnect in connection with any defects in the Products and/or Services lapses if:
- the defects were not reported to Bannerconnect within the time period or in the manner stated in Articles 11.2 and 11.3;
- the Customer fails to cooperate with Bannerconnect in investigating whether the complaints are founded, or fails to do so to a sufficient extent;
- the Customer fails to properly set up, handle, use, store or maintain the Products and/or Services and all the information which the Customer supplied to Bannerconnect for the purpose of manufacturing the Products and/or implementing the Services, or uses or handles the Products in conditions or for purposes other than those expected by Bannerconnect;
- the Customer continues using the Products and/or Services about which the complaints were made.
12. Intellectual property rights
- Unless otherwise agreed in writing, Bannerconnect is the sole proprietor of all intellectual property rights, including without limitation design rights and copyrights. To the extent that such a right can only be acquired by means of an application or registration, only Bannerconnect will be authorised to arrange for same. If and to the extent that it is necessary for all or any part of the Customer’s rights to be transferred and delivered, the Agreement is to be regarded as the appropriate instrument, and the Customer agrees to provide any further cooperation needed.
- Unless otherwise agreed in writing, the Order/Agreement will not include Bannerconnect investigating or arranging for an investigation into the existence of any patents, trademarks, trade names, design rights, copyrights, image rights and/or other intellectual property rights of any third party. The same applies to any investigation into the availability of any such types of protection to the Customer. Bannerconnect is not liable for any ensuing loss, damage, costs or interest. The Customer shall indemnify Bannerconnect from any and all third-party claims against it for costs, damages or interest arising from work performed for the Customer.
- Bannerconnect may at all times have its name stated in or on the Product or have its name removed. Without prior written permission, the Customer shall not manufacture, publish or reproduce the Product without stating Bannerconnect’s name. Similarly, without Bannerconnect’s prior written permission, the Customer shall not manufacture, publish or reproduce the Product with Bannerconnect’s name added in or on the Product.
- The Product created by Bannerconnect in connection with the Order/Agreement remains the property of Bannerconnect, regardless of whether the Product is delivered to the Customer or any third party. Without Bannerconnect’s prior written permission, the Products delivered and/or published by Bannerconnect may not be used for any media other than those agreed and selected by Bannerconnect and other than on the instructions of Bannerconnect.
- The information and materials included in the quotations submitted by Bannerconnect remains the property of Bannerconnect and must be returned at its request, and may not be copied and/or made available to any third party without its prior written permission.
13. Use and licence
- If the Customer fully meets its obligations, including without limitation its payment obligations, under the Agreement with Bannerconnect, the Customer acquires a non-transferable, non-exclusive licence to use the Product in the country in which the Customer is located for one year after delivery of the final Product, with the number of users to be determined in a separate agreement, in so far as it concerns the right of publication and reproduction in accordance with the intended use as agreed in the Agreement, unless otherwise agreed in writing. If nothing is agreed about the intended use, the licence is limited to the use of the Product as actually intended at the time of conclusion of the Agreement. Bannerconnect must be notified of those intentions in writing prior to the conclusion of the Agreement.
- Without Bannerconnect’s written permission, the Customer shall not reuse the Product or use it for a wider purpose than that stated in the Order Confirmation or otherwise agreed with Bannerconnect in writing. For each use of the Product for which no permission was granted, Bannerconnect is entitled to a penalty, immediately payable upon demand, of no less than three times the usual fee for such use, subject to a minimum of EUR 5,000 (five thousand euros), and to reimbursement for any loss, damage, other costs and interest incurred by Bannerconnect.
- Without Bannerconnect’s prior written permission, the Customer shall not alter the (preliminary or final) Product.
- Bannerconnect is free to use the Customer’s name and the Product developed for the Customer for its own publicity, promotional and other purposes.
- Bannerconnect will not be liable to the Customer or any third party for:
- any loss or damage of any nature whatsoever arising from the fact that Bannerconnect relied on (incorrect and/or incomplete) information supplied by the Customer;
- any loss or damage resulting (in part) from an act or omission by the Customer;
- any loss or damage caused by any error and/or misunderstanding on the part of a third party engaged by or on behalf of the Customer;
- any loss or damage not due to any intentional act or omission or deliberate fault on the part of Bannerconnect;
- any loss or damage caused by any error in the Products and/or Services if, in accordance with Article 4.5, the Customer granted its approval, after being given an opportunity to inspect the goods and indicating that it did not require such an inspection and/or the Customer failed to submit a written complaint within eight (8) days of the loss or damage first occurring;
- any loss or damage arising after delivery of the Products and/or Services and not due to any intentional act or omission or deliberate fault on the part of Bannerconnect;
- any (indirect) loss or damage, including without limitation consequential damages, non-financial damage, loss of profits or income, work and/or business stagnation, loss of commercial and/or other data (files) or any other loss of business or financial losses possibly connected with the use of the Products and/or Services delivered by Bannerconnect.
- The order referred to in the Order Confirmation remains valid if the appearance or display of the reserved medium changes.
- Bannerconnect is in no event liable if the failure is due to force majeure.
- Nor is Bannerconnect liable for any loss or theft of and/or damage to any goods or funds (belonging to the Customer and/or used or necessary to perform the Agreement).
- Bannerconnect is in no event liable for any loss or damage caused by a third party, including suppliers and others.
- Bannerconnect is neither responsible nor liable for the content of any (promotional) materials supplied by the Customer.
- The Customer is liable for any and all losses or damage sustained by Bannerconnect as a result of any attributable failure by the Customer to perform its obligations arising from the Agreement and these Terms.
- The Customer shall notify Bannerconnect immediately of any changes in the Customer’s details in writing. Failure to do so will render the Customer liable for any loss or damage which Bannerconnect may sustain as a result.
- The Customer shall, if reasonably possible, keep copies of the materials and data supplied by it until the Agreement has been fully performed. If the Customer fails to do so, Bannerconnect cannot be held liable for any loss or damage which would not have occurred had copies been made.
- Liability (if any) lapses on expiry of thirty (30) days from the time of completion of the Agreement, unless Bannerconnect has acknowledged liability. If and to the extent that the Agreement has not yet been completed, Bannerconnect’s liability lapses on expiry of thirty (30) days from the time when the loss or damage first arose, with a series of incidents counting as a single (1) incident.
- Notwithstanding the foregoing, if Bannerconnect is liable for any direct loss or damage, its total liability is limited to that part of the Agreement to which its liability relates, in all cases subject to the amount paid by Bannerconnect’s insurance company.
- The Customer itself shall assess whether the services provided by Bannerconnect and/or goods delivered by Bannerconnect are in conformity with applicable laws and commercial/trade practices in the Customer’s country/place of business.
- Bannerconnect may suspend all or any part of its work or terminate the Agreement, without any notice of default being required, if:
- the Customer fails to meet its obligations under the Agreement (including the timely payment of the agreed price, including any interest and costs due);
- the Customer fails to take receipt of the Products/Services delivered;
- any circumstances of which Bannerconnect became aware after conclusion of the Agreement provide good cause to fear that the Customer will not meet its obligations, including the Customer proving to be insufficiently creditworthy;
- the Customer is declared bankrupt or granted a suspension of payments or a debt restructuring plan for private individuals, or makes an application for same; or
- the Customer does not have (or no longer has) the power to dispose of its assets; or
- if the Customer (being a private limited liability company or a general partnership) is dissolved or liquidated or another partner is appointed to the Customer.
- Any arrangements which Bannerconnect is required to make as a result of the suspension or termination, and any loss or damage which Bannerconnect may sustain as a result of/arising from the suspension or termination, must be paid for or reimbursed by the Customer.
- If the Agreement is terminated on the grounds of this Article 15, the Customer shall immediately owe Bannerconnect a penalty, immediately payable upon demand, of 50% of the agreed price, without prejudice to the Customer’s obligation to pay for all of the work already performed and costs already incurred by Bannerconnect (including any materials ordered and manpower booked/scheduled), without prejudice to Bannerconnect’s right to be fully reimbursed for any loss or damage sustained.
The Customer shall indemnify Bannerconnect from all claims (by third parties), including claims for damages in connection with the Products and/or Services which Bannerconnect has delivered to the Customer, except to the extent that mandatory rules of Dutch law provide otherwise. Any loss or damage will be reimbursed only to the extent that it is reimbursed by Bannerconnect’s insurance company.
17. Assignment of rights and obligations
The parties shall not assign their rights and obligations arising from the Agreement to a third party without the other party’s prior written permission.
18. Disabled use/Suspension
- Bannerconnect may (temporarily) disable the Products and/or Services delivered and/or limit or suspend their use during the term of the Agreement if the Customer fails to meet any of its obligations to Bannerconnect under the Agreement or acts in violation of these Standard Terms of Business. Bannerconnect shall so notify the Customer simultaneously with the disablement/suspension.
- The obligation to pay the amounts due remains valid during the disablement/suspension.
- Bannerconnect will re-enable the Products and/or Services once the Customer has met its obligations within a period set by Bannerconnect and has paid a stated amount for enablement (EUR 5,000).
19. Amendments to these Terms
- Bannerconnect reserves the right to amend or add to these Terms. Amendments will also apply to agreements previously made, provided that thirty (30) days’ written notice is given, unless the Customer objects to the amendment in writing within thirty (30) days of such notice and Bannerconnect agrees with the Customer not to proceed with the amendment.
- If any of the provisions in these Standard Terms of Business are declared invalid by the courts, the other provisions of these Terms will remain in full force and effect and Bannerconnect and the Customer shall consult to replace the void or avoided provisions with ones that approximate the purport and scope of the void or avoided provisions as closely as possible.
20. Written/In writing, Signed
In these Standard Terms of Business, “written” or “in writing” includes email unless otherwise stated. In these Terms, “signed” includes the electronic (digitally) signing of any Order, Order Confirmation and/or Agreement by any party. The foregoing means that in case of a written acceptance by the other party of a proposal, the written confirmation of an Order and/or an Order Confirmation and the signing of an Agreement, this is possible and valid in all cases when done by email and/or electronically/digitally signed.
- The Customer obliges to, both during and after the term of the Agreement, confidentiality regarding all that is known, becomes known or shall become known in relation to the conclusion and execution of the Agreement, regarding among others, the conduct of business in and around Bannerconnect and the enterprise operated by it. The Customer obliges not to disclose these data and information to third parties without prior permission in writing of Bannerconnect. Except for when on the basis of a mandatory prescription by law, an obligation to making statements exists, in which case those statements will only be made after mutual consultation and approval of Bannerconnect.
- The obligation to confidentiality does not exist with regard to data and information that:
- was already known upon the start of the Agreement to the Customer, unless this information and data have been provided under confidentiality;
- has been legally collected or obtained independent of Bannerconnect by the Customer;
- has been obtained by the Customer legally without obligation to confidentiality from a third party;
- has already been disclosed and multiplied by the rightful owner.
- For each breach of this confidentiality clause Bannerconnect is entitled to a penalty, immediately payable upon demand, of EUR 5,000 (five thousand euros) per event, as well as a penalty of EUR 1,000 (one thousand euros) for each day that the violation lasts, notwithstanding the obligation of the Customer to fully compensate Bannerconnect’s damages.
22. Survival clause
Expiry, termination or cancellation of the Agreement shall not affect any right or obligation, which expressly or by its nature survives such expiry, termination or cancellation, including but not limited to payment obligations, confidentiality obligations, intellectual property rights and accrued rights.
23. Governing law
All Offers made by Bannerconnect and all Agreements made by and with Bannerconnect are governed exclusively by Dutch law.
24. Dispute resolution
- Any disputes arising from (the performance of) an Agreement made between Bannerconnect and the Customer will be submitted for resolution to the competent court in the judicial district of Maastricht, The Netherlands, unless the Customer is based outside Europe.
- If and to the extent that the Customer is based outside Europe, all disputes arising from the Agreement or any further agreements ensuing from the Agreement will be resolved in accordance with the Arbitration Rules of the Netherlands Arbitration Institute [Nederlands Arbitrage Instituut]. More specifically:
- the arbitration tribunal will consist of three arbitrators;
- the arbitration venue will be Maastricht, The Netherlands;
- the arbitration proceedings will be conducted in Dutch, unless otherwise agreed.