Terms & conditions

Effective date: October 05, 2022

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY SALESSOURCE (PART OF ECHO TREE BV).

Definitions

In these General Terms and Conditions (“Terms and Conditions”) the following words have the following meanings:

The “Agency”: means Echo Tree BV, a company incorporated under the laws of the Netherlands, with its registered office at Van Kretschmar Van Veenlaan 8, Hilversum, 1222LZ, the Netherlands;

The “Client”: means any natural or legal person with whom the Agency has concluded an Agreement or with whom the Agency has entered into negotiations to conclude an Agreement;

The “Services”: means consultancy services, including advertising and development, marketing and digital consultancy services, which may be provided by an Agency, more specifically described in the Statement of Work;

The “Deliverables”: means all final and selected copy, layouts, artwork, storyboards, scripts, presentations, drawings, documents, charts, graphics, photographs, films and/or other final and selected materials produced by or on behalf of the Agency for Client in the course of providing the Services, on any media, whether digital or physical and whether any media existing at the Effective Date or subsequently developed), in each case to the extent identified as deliverables to be produced by or on behalf of the Agency in a Statement of Work;

The “Statement of Work”: means the document containing a general description of the Services provided by the Agency to the Client and the Deliverables to be performed, which may be annual or project based, as further detailed in the Agreement;

The “Assignment”: means any assignment ordered by a Client in connection to the Services and Deliverables provided by the Agency;

The “Agreement”: means the assignment agreement established between the Agency and a Client and any amendment or addition thereto.

Applicability

These Terms and Conditions shall form a part of all Assignments to the Agency.

Any deviations from, and additions to, these Terms and Conditions shall only be valid if they have been explicitly agreed in writing, for example in the Agreement. This deviation shall only apply to that particular Agreement, unless explicitly stated otherwise.

If any provision in these Terms and Conditions and the Agreement were to conflict, the provision set out in the Agreement shall be applicable.

The Agency rejects the applicability of any general terms and conditions used by the Client.

Offers; Establishment and Contents of Agreements

An offer or price quote shall not bind the Agency, and only serves as an invitation to the Client to requisition an Assignment

Offers by the Agency remain valid for 30 days unless the Agency states another term in the offer.

An Agreement is only established insofar as the Agency accepts an Assignment from a Client in writing or when the Agency performs the work for the Assignment. If the Agency at the Client’s request, performs any work before the Agreement has been established, the Client shall pay the Agency for such work according to the Agency’s then applicable rates.

The Agency and Client shall agree on a case-by-case basis which work shall form part of the Agreement.

Offers for one Assignment do not automatically apply to future assignments.

Prices

The Agency applies the prices as agreed upon by the Agreement between the Agency and the Client.

All the Agency’s prices shall be expressed in Euros and exclusive of Turnover Tax. Unless explicitly agreed otherwise, all fees or taxes imposed or levied for the Services shall be borne by the Client

Any changes to factors that may be of influence to the Agency’s price, including but not limited to the prices of third parties, currency rates, insurances rates and other fees or taxes, may be charged through by the Agency to the Client.

Remuneration of the Agency

The Agency shall charge the Client for the Services to be performed by the Agency according to the Agreement. The remuneration for the performance of the Services is not dependent on the result of the Services, unless otherwise agreed.

In addition to the remuneration for the performance of the Services, the Client will also be charged for any expenses, including but not limited to travel and accommodation, incurred by the Agency in the course of providing the Services under the Agreement.

If the remuneration owed to the Agency for performance of the Services has been estimated in advance, this estimate shall at all times only represent a general indication of the remuneration ultimately owed. The Agency shall, to the extent possible, always inform the Client in advance of any potential extra work.

Payment

Unless agreed otherwise, the applicable payment period for the Client is 15 days after the invoice date

If the Client has not made payment within the term specified in clause 6.1 above, the Client shall be in default by operation of law, and the Agency shall be entitled to charge the statutory (commercial) interest.

Invoices sent by the Agency are not binding, in the sense that, if erroneous amounts are stated on such invoices by mistake, the Agency shall be entitled to send a corrected invoice.

The Agency is entitled to demand from the Client advance payment of the amount owed or that the Client provide reliable security, before performance or further performance of the work.

Consequences of default

The Client shall be in default, without any further notice of default, merely upon expiry of the payment period, as referred to in Clause 6.1. In such a case, all the Agencies claims vis-à-vis the Client, for any reason whatsoever, are immediately due and payable

If the Client is in default, Agency is entitled, without any further notice of default, to suspend performance of the Agreement until payment has been sufficiently secured and/or to dissolve the Agreement with the Client partially or in full. If the Agency makes use of its power to dissolve the Agreement the Agency is authorized to offset any potential amount paid to the Client in restitution with a fee for work already completed.

The Client shall, without any further notification of default, owe the applicable statutory (commercial) interest on all amounts that have not been paid on the last day of the payment period, from that day on, as referred to in Book 6, Article 119 and Book 6, Article 119(a) respectively of the Dutch Civil Code.

If the Client is in default with the entire payment of the amounts Agency has invoiced the Client, then the Client shall owe the Agency extrajudicial costs.

Reminders or overviews of outstanding invoices expressed in principal sums sent to the Client shall never indicate forfeiture of rights in the matter of default interest and/or costs, even if the principal sums of the invoices have been paid and such sums no longer appear in the said reminders or overviews.

Regardless of any statement to the contrary, payments shall be deemed to be paid by the Client in the following order: interest, (extra) judicial collection costs, principal sums owed (from earlier to later).

Performance of Agreements

The Agency’s performance of an Assignment shall take place on the basis of the applicable circumstances at the time the Agreement was concluded, and, insofar as dependent on the performance of third parties, on the basis of the information provided by those third parties to the Agency.

All Assignments must be sent to the Agency in writing. Changes to Assignments already issued must be communicated to the Agency in a timely manner and in writing. Changes communicated orally shall be at the Client’s own risk.

The Client shall make available to the Agency all the information and material necessary for execution of the Agreement, including but not limited to information carriers, in a timely manner, and is responsible that this information and material is correct and complete. All costs associated with delivery shall be at the Client’s own expense.

Unless agreed otherwise in writing, the work performed for Assignments shall be conducted during normal business hours and under normal circumstances.

Force Majeure

“Force Majeure” shall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including war, riot, civil commotion, fire, flood, storm, strikes, industrial action, lock outs, internet downtime, accidents, blockade, import or export embargo, terrorism or threat of terrorism, natural catastrophes, malicious acts of third parties, death of a leader, virus infections or any other circumstance that results in unusual disruption to media demand and supply, such as the reduction of, or removal from, any media supply in respect of any significant media owner.

If the Agency is prevented from performance of any of its obligations under the Agreement by Force Majeure, that party (the “Claiming Party”) shall serve written notice on the other party specifying the nature and extent of the circumstances giving rise to Force Majeure, and shall subject to service of such notice have no liability in respect of any delay in performance or any non-performance of any such obligation (and the time for performance shall be extended accordingly) to the extent that the delay or non-performance is due to Force Majeure.

If the Agency is prevented from performance of substantially all of its obligations by Force Majeure for a continuous or aggregate period of more than [1] [(one)] month in total, the client may terminate the Agreement immediately on service of written notice upon the party so prevented, in which case neither party shall have any to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.

Liability

The Client explicitly accepts that the Agency is not liable for any Third-Party Materials or any goods or services that are not developed or provided by the Agency. If the Client brings legal action against any third party, the Client shall indemnify the Agency against any claims by such third party in connection with such liability claim as well as against all expenses to be incurred by the Agency.

Should the Agency be liable despite the provisions of Clause 10.2, the liability of the Agency shall at all times be limited to sum insured that shall be paid in such case under the Agency’s corporate liability insurance and/ or professional liability insurance. Should no payment be made by virtue of aforementioned insurance policies, the liability of the Agency shall at all times be limited to the amount of the Fees paid by the Client during the [six] ([6]) months preceding the date of the event leading to the liability occurred, up to a maximum liability of € [10.000] ([ten thousand Euro]).

The Agency and the Client shall each use commercially reasonable efforts to mitigate any losses or other liabilities they may suffer or incur arising under or in connection with the Agreement.

Termination

Agreements are concluded for the duration of the project or for ongoing services.

Agreements concluded for the duration of the project, terminate when the Assignment has been carried out. The Client is not entitled to terminate (“opzeggen”) the Agreement prior to the expiry of the term of the Agreement. The Agency has the right to terminate (“opzeggen”) the Agreement at any time for any reason upon [three] ([3]) months prior written notice to the Client.

Agreements concluded for ongoing services can be terminated by the Client and the Agency upon [three] ([3]) months prior to the end of the term as specified in the Agreement. If the Agreement is not terminated by the Client prior to the expiry of the term, taking the notice period into account, the Agreement will automatically renewed for an additional similar term.

Without prejudice to Clause 11.1, 11.2 and 11.3, the Agency may dissolve (“ontbinden”) the Agreement immediately in whole or in part by notice in writing to the other if:

The Client is in material breach of any of the terms of the Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 30 (thirty) days of receipt of written notice giving full particulars of the breach; or

the Client becomes bankrupt or an insolvent person (within the meaning of the Dutch Bankruptcy and Insolvency Act), proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets; or if any petition shall be presented, order shall be made or resolution passed for its winding up (except for the purposes of a bona fide amalgamation or reconstruction), bankruptcy or dissolution; or if it shall otherwise propose or enter into any composition or arrangement with its creditors or any class of them; or if it ceases to carry on business; or if it claims the benefit of any statutory moratorium; or if anything analogous to the foregoing insolvency events occurs in any applicable jurisdiction.

Intellectual property rights and confidentiality

The execution of the Agreement by the Agency does not constitute the assignment of intellectual or industrial property rights vested in the Agency to the Client. All intellectual or industrial property rights to Deliverables rest solely with the Agency and/or, where applicable, its subcontractors.

The Client shall keep confidential and shall not disclose to any person any information, whether in written or any other form, which has been or may be disclosed to it by or on behalf of the Agency in the course of the discussions leading up to or the entering into or performance of the Agreement and which is identified as confidential or is clearly by its nature confidential including the terms of the Agreement, information regarding the Agency’s pricing and methodologies, all marketing and sales information, statistics and marketing and business plans relating to either Party’s business which one Party may supply to the other Party in the course of any work undertaken between the Parties (“Confidential Information”) except insofar as the Confidential Information:

is required by a person engaged by or on behalf of the receiving Party in connection with the proper performance of the Agreement;

is required to be disclosed by applicable law or by regulation (whether or not having the force of law) by the receiving Party, provided that the receiving Party shall notify the disclosing Party of the information to be disclosed and the circumstances in which the disclosure is alleged to be required as early as reasonably possible before such disclosure must be made and shall take all reasonable action to avoid and limit such disclosure; or

is developed by or for the receiving Party independently of the information disclosed by the disclosing Party.

Confidential Information does not include information which:

is or becomes generally available to the public otherwise than as a direct or indirect result of disclosure by either Party or a person employed or engaged by either Party contrary to its obligations of confidentiality; or

is or was made available or becomes available to either Party otherwise than pursuant to the Agreement and free of any restrictions as to its use or disclosure.

Subcontracting and assignment

The Agency is permitted to sub-contract or otherwise outsource certain Services to subcontractors unless the Client raises objections against a specific subcontractor.

The Client is not entitled to assign, encumber or delegate any rights or obligations from any Agreement to a third party without the prior written consent of the Agency.

Expiry of Rights

All rights of action, liabilities and other powers of the Client, whether arising from a shortcoming in fulfilment of an Agreement by the Agency, or arising from an illegal act of Agency, or on any other grounds, expire as soon as a period of one year has lapsed from the day on which the Client had been informed or should reasonably have known the existence of such rights, liabilities and powers.

In addition, the expiry period referred to in Article 12.1 applies from the time any Agreement has been established in which all rights of action, liabilities and other powers of the Client are subject to these Terms and Conditions, which the Client is aware of at that time or should reasonably have known to exist.

Exclusivity

For the duration of the Agreement the Agency shall be the exclusive agency in the for the Client with respect to the Services listed in the Agreement, unless the Agency has given the Client its prior written consent.

In case the Client wishes to let a third party carry out any services equal or comparable to the Services listed in the Agreement, the Client will inform the Agency upfront. Parties will discuss and the Agency has the right to refuse the Client consent to let the concerning company perform services on reasonable grounds.

Entire agreement

An Agreement – including these Terms and Conditions – is a complete representation of the rights and obligations of the parties and replaces any prior written and oral agreements, statements, expressions or behaviour patterns of the parties.

Governing law and jurisdiction

These Terms and Conditions as well as all Agreements shall be governed by the laws of the Netherlands.

All disputes arising in response to an Agreement or these Terms and Conditions shall, unless provided otherwise under mandatory law, be subject to the judgment of the competent court of Amsterdam.

Conversion

If and to the extent that any provision of these Terms and Conditions or the Agreement cannot be invoked on the grounds of a mandatory law, or on the grounds of the unreasonable character of these Terms and Conditions or the Agreement, or on the grounds of reasonableness or fairness, the provision in question shall be accorded a meaning corresponding as closely as possible to its original meaning and purpose so that this provision can nevertheless be invoked.

Amendments to the Terms and Conditions

These Terms and Conditions may be amended by communications issued by the Agency to the Client. In the absence of any objection within 30 days of communication, the amended parts of the Terms and Conditions shall apply from the date of communication to all new Agreements as well as to all current Agreements, insofar as these are being executed after the date of communication.