Article 1: General/Definitions
1.1 These general terms and conditions are filed with the office of the Chamber of Commerce in Amsterdam (hereinafter referred to as: the “General Terms and Conditions”).
1.2 In these General Terms and Conditions the following terms have the following meaning: (a) Client: any party that concludes an agreement with Echo Marketing (b) Echo Marketing established in Haarlem (Ch. of Comm.: 50591045).
1.3 In all events when, in these general terms and conditions, “in writing” is mentioned, this is intended in the broadest sense of the words, therefore also including email.
Article 2: Applicability
2.1 These General terms and conditions apply to all offers and agreements that are related to the services offered by Echo Marketing, as well as to all legal relationships between Echo Marketing and the Client.
2.2 If any derogation from these General Terms and Conditions is made in writing, the other provisions will retain their validity.
2.3 Amendments of these General Terms and Conditions made in writing only apply for the events determined in that specific agreement.
2.4. Following the initial acceptance of the General Terms and Conditions, these are not required to be expressly agreed anew, but are deemed to be accepted tacitly. This applies to all further (legal) acts between parties.
2.5 If Echo engages third parties, these General Terms and Conditions will also apply.
2.6 The applicability of the General Terms and Conditions applied by the Client are expressly rejected by Echo Marketing.
Article 3: Offer
3.1 All offers and/or tenders from Echo Marketing are without obligation, unless – and in that case only insofar as – stated otherwise in writing by Echo Marketing.
3.2 The prices in the offers and/or tenders referred to are excluding VAT, unless stated otherwise. The prices are adjusted annually when necessary, to be determined by Echo Marketing.
3.3 An agreement only comes into effect after Echo Marketing has accepted an assignment in writing by means of a confirmation of the assignment related thereto. The Client is entitled to respond to this in writing within 8 days after receipt of the confirmation of the assignment. In the event of the absence of a response in writing on the part of the Client within the period referred to, the agreement between the Client and Echo Marketing will come into effect in accordance with the confirmation of the assignment.
Article 4: Execution of the Assignment and Provision of Service
4.1 Echo Marketing will endeavour to achieve a good result for the Client, but can never guarantee this result.
4.2 The Client is responsible for providing in a timely manner all data, which Echo Marketing states are necessary, or of which the Client reasonably ought to understand are necessary, for the performance of the agreement, to Echo Marketing. If the data necessary for the performance of the agreement is not provided in a timely manner to Echo Marketing it will have the right to suspend the performance of the agreement and/or in that case to charge the Client for the extra costs ensuing from the delay in accordance with the usual rates.
4.3 If it has been agreed that the performance of the agreement will be executed in stages Echo Marketing can suspend the execution of those parts that belong to the following stage until the Client has approved in writing and/or paid the results of the prior stage.
Article 5: Extra work
5.1 Echo Marketing has the right to adjust its prices in the event of amendments of that which has been agreed.
5.2 Echo Marketing has the right to charge the Client for extra costs, such as those for addendums, tests, discussions and/or executions, which take place on the request from the Client.
Article 6: The Assignment
6.1 If Echo Marketing expects that it will not be able to meet a delivery period set out in an offer or an agreement, Echo Marketing will inform the Client of this as soon as possible.
Article 7: Analysis Reports
7.1 Analysis Reports will be drawn up by Echo Marketing in conformity with the project proposal, offer, or agreement.
7.2 If no manner of reporting is specified the reporting will take place in Dutch and/or English.
7.3 The amounts and/or numbers stated in the analysis reports from Echo Marketing with regard to the media usage are purely of an indicative nature and no rights can be derived from these amounts and/or numbers. If the reported amounts and/or numbers with regard to the media usage derogate from the amount and/or numbers that are charged by Echo Marketing in an invoice, the amounts and/or numbers in the invoice will apply as the actual amounts and/or numbers.
Article 8: Interim amendments of the agreement
8.1 Interim amendments of the agreement can be agreed exclusively by mutual consent. Echo Marketing does not accept any responsibility and liability for amendments that are implemented unilaterally by the Client.
8.2 In spite of the provision stated above in 8.1, Echo Marketing has the right, in the interest of the provision of service, to change the adverts and search words at its discretion and without prior permission from the Client.
8.3 If parties agree that the agreement is to be amended or added to, the time of completion of the performance may be impacted as a result. Echo Marketing will inform the Client of this.
8.4 If the amendments of, or addendums to, the agreement have financial and/or qualitative consequences, Echo Marketing will be entitled to charge the costs thereof to the Client. Echo Marketing will inform the Client of this in advance.
8.5 If a fixed amount is agreed, Echo Marketing will state to what extent the amendment of, or addendum to, the agreement results in exceeding of this fee.
8.6 In derogation from subclause 4, Echo Marketing will not be able to charge additional costs if the amendment or addition is the result of circumstances which can be attributed to it.
Article 9: Responsibility of the Client
9.1 The Client is personally responsible for the facilities and equipment of the Client and the consequences ensuing therefrom.
9.2 The Client must be personally responsible for ensuring the payment of the communication costs incurred by the Client.
9.3 The Client is personally responsible for the accuracy of the data delivered by the Client to Echo Marketing.
9.4 The Client guarantees the accuracy of the tests and/or drafts accepted by the Client, or for the tests and/or drafts, for which corrections are not, or not in a timely manner, sent by the Client to Echo Marketing.
9.5 The texts, images, or other data compiled by the Echo for the benefit of the Client are deemed to have been accepted by the Client, unless within a period of fourteen (14) days after publication the required changes are reported in writing by email.
9.6 The Client guarantees, at all times, that the materials delivered by the Client to Echo Marketing do not infringe the rights of third parties, including intellectual property rights.
9.7 The Client is always obliged to provide full cooperation, data and information, which are necessary or useful for the execution by Echo Marketing of the agreed services.
Article 10: Confidentiality
10.1 Parties are obliged to maintain confidentiality of all confidential information that they, in the context of the agreement, have acquired from each other or from another source.
10.2 Echo Marketing retains the right to use the name of the Client, or customer of the Client, as a reference and to publicise these in that capacity.
10.3 The (personal) data that is provided to Echo Marketing will be treated with confidentiality in a manner as prescribed by the Data Protection Act. The provided data will be recorded in a file. This data will not be made available to third parties.
Article 11: Exclusivity and Non-Competition Clause
11.1 The Client grants to Echo Marketing the exclusive right to execute the assignment for the duration of the agreement and with due regard to the provisions of the agreement.
11.2 During the term of the agreement and during a period of one (1) year after the termination thereof, the Client is not permitted to directly or indirectly employ an employee of Echo Marketing, or to enter into a contractual relationship with an employee of Echo Marketing, unless Echo Marketing has provided approval in writing for this.
11.3 The Client will incur for each breach of the provisions included in article 11.2 an immediately due and payable financial penalty of EURO 50,000 per breach, or as the case may be EURO 1,000 per day for each day during which the breach continues, without prejudice to the right of Echo Marketing to claim compensation in full. This compensation expressly includes any costs for enforcement of the rights of Echo Marketing judicially as well as extrajudicially – whereby in the first case these costs will not be limited to the recorded order for costs – as well as any costs to establish (have established) the breach and liability.
Article 12: Intellectual rights
12.1 All documents, of whatsoever nature, provided by Echo Marketing are exclusively intended to be used by the Client. The Client is not permitted to disclose and/or reproduce in whatsoever form the information acquired from Echo Marketing, also including selling, processing, making available, dissemination and integration into networks, whether or not after processing, unless such disclosure and/or reproduction is with permission in writing from Echo Marketing and/or such disclosure and/or reproduction ensues from the nature or the objective of the agreement with Echo Marketing.
12.2 Echo Marketing retains the right to use the knowledge acquired for the execution of the work for other purposes, insofar as no confidential information of the Client is brought to the knowledge of third parties hereby.
12.3 The Client indemnifies Echo Marketing against all possible claims by third parties related to intellectual property rights concerning the publication of the texts, images or other data provided by the Client or on the part of the Client.
12.4 If Echo Marketing, during the execution of the assignment, makes use of rights of third parties the Client will not become the owner of these rights, and these rights will remain the property of Echo Marketing, or as the case may be of the third party.
Article 13: Duration of contract and notice of termination
13.1 The agreement is entered into for the period which is included in the confirmation of the assignment and otherwise for an indefinite period.
13.2 An agreement for a fixed period is always automatically extended after the end of the period set out in the contract, by a period of one (1) month, except for in the event of notice of termination by registered letter with effect from the end of the (extended) duration of contract and with due regard to a notice of termination period of one (1) calendar month. Termination before the end of term is not possible.
13.3 Echo Marketing in addition has the right to cancel or terminate the agreement with immediate effect if: (a) The Client is declared insolvent, moratorium is granted to the Client, as well as in the event of dissolution or liquidation of the Client, or if prejudgment attachment or attachment under a warrant of execution is levied on the movable and/or immovable property of the Client;
(b) the Client is in default of the fulfilment of the obligations of the Client under the agreement.
Article 14: Fee
14.1 All prices and costs estimates are excluding VAT, unless stated otherwise.
14.2 If no fixed fee is agreed the fee will be recorded on the basis of the hours actually spent. The fee will be calculated in accordance with the usual hourly rates of Echo Marketing, applicable for the period during which the work will be executed, unless an hourly rate derogating therefrom has been agreed.
14.3 The costs for all assignments will be charged monthly in advance. Echo Marketing has the right to adjust its costs on the basis of external circumstances.
Article 15: Payment
15.1 Payment must be made within fifteen (15) days after the invoice date, in a manner to be stated by Echo Marketing.
15.2 Following the expiry of this payment term the Client will be in default without the requirement of further demand or notice of default; the Client will owe interest of 4% per month over the due and payable amount from the time of the occurrence of the default until the time of payment in full.
15.3 Echo Marketing will be entitled to stipulate a security deposit from the Client at the entering into of the agreement. The security deposit, as well as the level thereof, will be set out in the offer and/or the contract. Echo Marketing will be entitled, after informing the Client of this, to adjust the security deposit during the term of the contract in the event of (i) exceeding of payment terms by the Client and/or (ii) in the event of increase of the budget. The security deposit will be set off at the end of the contract against the last invoice to be paid by the Client. No VAT is owed over the security deposit.
15.4 If the Client fails to pay the security deposit stipulated in accordance with article 15.3 Echo Marketing will be entitled to withdraw the offer or tender, whereby the Client will be obliged to reimburse Echo Marketing for the setup costs incurred by Echo Marketing, as well as the subscription costs for the contract period referred to in the offer – with a maximum of six (6) months.
15.5 If the Client is declared insolvent, moratorium is granted to the Client, or in the event of dissolution or liquidation of the Client, or if prejudgment attachment or attachment under a warrant of execution is levied on movable and/or immovable property of the Client, all amounts owed by the Client to Echo Marketing will be immediately due and payable in full, without the requirement of any demand or notice of default.
15.6 The Client is not permitted to rely on set off on whatsoever basis.
If the Client believes to be able to enforce claims with regard to the agreement with Echo Marketing this will not release the Client from the payment obligations of the Client of payment in the agreed manner and the Client will not be entitled to suspension of the payment obligation.
Article 16: Complaints
16.1 Each complaint will lapse if this is not submitted in writing within 14 days after occurrence of the incident that the complaint relates to.
16.2 Submitting a complaint will not affect the other obligations of the Client.
Article 17: Liability
17.1 If Echo Marketing might be liable this liability will be limited to the amount that is covered for this by its insurer.
17.2 In the event of defects in the execution on the part of Echo Marketing no liability whatsoever will be accepted for the defects that arise as a result of acts or omissions on the part of the Client or third parties for which the Client is responsible, or which the Client uses.
17.3 Echo Marketing takes as a starting point that the data delivered by the Client is lawful and Echo Marketing does not accept any liability for the contrary.
17.4 Parties mutually exclude liability for damage or delay caused by breakdowns in the electronic provision of service by Echo Marketing and by third parties, such as providers, network operators or other telecommunication networks.
17.5 If at any time liability still arises for Echo Marketing for damage that the Client has suffered due to an attributable failure in the fulfilment of the obligations under the agreement with Echo Marketing, this liability will be in all cases limited to the maximum of the invoice amount of that specific part of the agreement, which the liability relates to, with a minimum of the set out amount as referred to in article 17.1.
17.6 Damage that Echo Marketing is liable for on the basis of the previous subclause will only be eligible for compensation if the Client has informed Echo Marketing of this within fourteen (14) days after the arising thereof, except for if the Client can make it plausible that the Client could not reasonably have reported this damage earlier.
17.7 The Client indemnifies Echo Marketing against liability towards third parties with regard to damage of whatsoever nature, caused by or related to the performance of the agreement.
Article 18: Force majeure
18.1 Echo Marketing will not be liable in the event of force majeure. Force majeure also covers instances when, at the assessment of Echo Marketing, it does not have sufficient data in its possession, or if incorrect data has been provided, or as the case may be if sufficient cooperation from the Client is lacking.
18.2 In the event of force majeure Echo Marketing will be entitled to terminate the agreement, wholly or in part, or to cancel the assignment without being obliged to any compensation toward the Client. Echo Marketing is obliged to immediately inform the Client of this.
Article 19: Concluding provisions
19.1 None of the parties will be entitled to transfer the rights and duties under this agreement without permission in writing from the other party.
19.2 Echo Marketing has the right to unilaterally amend these General Terms and Conditions. Amendments also apply with regard to agreements that have already been concluded. Amendments will be notified in writing to the Client and come into effect on the date that will be stated.
19.3 If a provision of the agreement or the General Terms and Conditions appears to be null and void this will not affect the validity of the entire General Terms and Conditions. In that event Echo Marketing will have the right to replace this with a provision that as closely as possible approaches the void provision, which replacement provision will not be unreasonably onerous for the Client.
19.4 In the event that these General Terms and Conditions and the confirmation of the assignment, or the agreement in writing, contain inconsistent provisions, the provisions in the confirmation of the assignment, or the agreement in writing, will prevail over these General Terms and Conditions.
19.5 All agreements between parties and all obligations ensuing therefrom or related thereto are exclusively governed by Dutch law.
19.6 Disputes will only be submitted to the ordinary court in Haarlem, unless Echo Marketing decides otherwise.