Terms of services

Version: January 2020

These general terms and conditions apply to all offers and the formation, content and fulfillment of all agreements to be concluded between & Brands as contractor and clients. Deviations from this are only valid if they have been agreed in writing.

1. Offers and quotations

All our offers are without obligation, valid for a maximum of four weeks and only bind & Brands when they have been recorded in writing and agreed with the client in a signed order confirmation or a signed offer online.

2. Duration agreements

For certain services such as SEO, SEA, Social Media campaigns, website maintenance and purchasing design hours & Brands works with long-term agreements in which it is agreed with the client that we carry out a process for a certain period. In consultation, this process is completed for a number of hours specified in the quotation that will be spent on the process in a certain period.

These agreements can always be canceled in writing up to one month before the end thereof. If not canceled on time, they will continue with a new period of three (3) months each time, until they are canceled in time.

3. Advertising sales rules

It is possible to use cookies when selling advertisements. If cookies must be placed and / or read for clients, clients are themselves fully responsible for complying with all applicable legislation and & Brands is indemnified by clients in the event of any liability claims or sanctions.

Clients undertake to fully comply with the applicable legislation on cookies and data analysis, as included in the Telecommunications Act, the Personal Data Protection Act and / or the General Data Protection Regulation. This will be demonstrated in writing at & Brands’ request.

We are not responsible or liable for the content of advertisements or campaigns devised by the client.

4. Delivery times, adjustments, additional work and outsourcing

In the execution of assignments, work is usually done in phases. A phase is completed when there is an agreement from the client, or when the client has failed to reject the phase within the period provided by & Brands. From that moment on, the possibility of making changes in an earlier phase ends. This is only possible after consultation and agreement on any additional work.

& Brands does its utmost to comply with the agreed delivery terms, except in the absence of instructions, cooperation or materials required for the fulfillment, longer consultation with the client than anticipated, illness or force majeure. If an agreed term is likely to be exceeded, this will be reported to the client.

If (a large part of) an assignment has to be changed at the request of the client, the client must pay for this, the current assignment will then be closed and a new quotation will be drawn up. A new price will also be agreed for the additional work.

If there is additional work, the client will be contacted. Agreements are then made about the amount of additional work, the costs and the payment conditions.

& Brands reserves the right to outsource work to third parties. & Brands will then act as the main contractor.

If there are minor deviations in the product delivered by & Brands compared to what has been agreed, the client is in principle not entitled to rejection, discount, compensation or dissolution. After execution of the assignment, & Brands is not obliged to keep the data or materials used for this.

5. Design approval

For design assignments, we agree a maximum number of proposals in the assignment confirmation or quotation. The client must make a choice from these proposals. Designing more proposals will result in additional work, for which the client will have to pay.

We ask the client for a final approval of the design in question for each individual design (or for websites and / or apps, per page template). An approval contains the following elements:

• a confirmation that the final design and all its individual elements have been seen and are thus approved;
• a confirmation that all adjustments that still have to be made by us after this approval are regarded as additional work;
• a confirmation that all approved elements will be reflected in the final website (including: text blocks, space for videos, Social Media share buttons, Twitter feeds, menus, logos, fixed images, contact forms or social media buttons).

6. Warranty

& Brands offers a three (3) month guarantee after the delivery of the products and / or services. A guarantee is understood to mean that any identifiable and / or unknowable defects will be repaired by & Brands free of charge. After this period, a Service Level Agreement (SLA) or timesheet can be agreed. If it appears that there are defects, we will do everything within a reasonable period of time at the request of the client to repair them. The client cannot invoke the guarantee if:

• the defects found are the result of user errors of the client or third parties;
• changes have been made to our products and / or services by the client or third parties in any way;
• the client does not, not timely or not fully comply with its obligations under the agreement concluded with & Brands;
• data has been lost as a result of user errors of the client or third parties;
• it concerns products and / or services for which no guarantee can be given, such as activities relating to external design;
• & Brands is indemnified by the client against any claims from third parties in the event of defects.
• points that fall under additional work such as new functionalities.

7. Third Parties

When providing services & Brands sometimes depends on the services of third parties, the functionalities of these services and the extent to which they are compatible.

It is possible that these services or functionalities do not optimally combine with & Brands’ own services. We will do everything we can to prevent this, but we do not guarantee this. & Brands is not responsible for this insofar as we are not obliged to find a solution free of charge for this non-optimal functioning. We do not offer any guarantees for this.

8. Complaints and support

If there is a complaint, it must be reported to & Brands as soon as possible. We will then make every effort to resolve any complaints. Submitting a complaint does not change (the validity of) the payment obligations that the client has entered into with us.

9. Retention of title

All goods that & Brands makes and / or delivers for the client remain its property until all amounts that the client owes & Brands for our products and / or services have been paid in full.

The client is not permitted to grant pledge rights on goods subject to this retention of title or to encumber them in any other way. If third parties seize the goods falling under the retention of title or wish to establish or assert certain rights thereon, the client must notify & Brands of this in writing within seven (7) days.

10. Intellectual Property Rights

& Brands owns all intellectual property rights (“IP rights”) that rest or arise on or around all products and services supplied. If the IP rights lie with third parties who have given us permission to use them, those IP rights will at all times remain with the third parties concerned.

In order to nevertheless enable reasonable use of the products and services, & Brands grants the client a non-exclusive and non-transferable right to use IP rights on or around those products and / or services.

This is always done under the resolutive condition that the client adheres to the obligations under this agreement. Only in certain exceptional cases and after payment of an additional fee can & Brands transfer IP rights,

Without the prior written permission of & Brands it is not permitted to adjust the result of an assignment, to use it more broadly or in a different way than agreed, or to enable third parties to do so. & Brands has the right to request an additional fee for this in such cases.

If the foregoing takes place without permission from & Brands, & Brands is entitled to compensation for this that amounts to at least three (3) times the normal rate and which is in a reasonable proportion to the use in question. This does not affect any other rights, such as the right to payment of compensation for the full damage suffered as a result of this use.

If there are indications on our products and around our services that indicate that the IP rights concerned are held by & Brands or third parties engaged by it, then it is not permitted to remove and / or affect these indications. & Brands has the widest conceivable right to have its name mentioned or removed during or around publicity surrounding an assignment and may state the result thereof on its own website or via other channels.

The client is not permitted to deposit or register IP rights with regard to the products and / or services of & Brands without prior written permission.

11. Confidential Information

The parties agree to take as many precautions as possible so that confidential information is kept secret.

12. Rates and payment terms

& Brands only enters into agreements if a fixed (hourly) rate has been agreed in advance, or if there is a fixed price. Agreements made with & Brands do not automatically apply to future (follow-up) assignments from the client.

In the case of a fixed price, & Brands will in principle only start the activities after receipt of an advance invoice of 40% of the agreed fixed price. During the work – depending on the progress or the phase the assignment is in – a new bill is drawn up by & Brands. The last part of a fixed price must always be paid prior to delivery. Each project is concluded with a specified final invoice.

In the event of a continuing performance contract, the monthly costs will always be charged to clients at the beginning of each calendar month.

If & Brands purchases certain items and / or services from third parties for the execution of the assignment, the full costs associated with this will have to be paid in advance for 100% by clients. This payment obligation also applies to printing.

The rates used by & Brands are always exclusive of VAT.

The (hourly) rates of & Brands can be determined by it every year in January. This can only be different if this has been agreed in writing between the parties.

Payment must be made in full and no later than fourteen (14) days after the invoice date. Settlement of amounts invoiced by & Brands is not permitted. If the period of fourteen days is exceeded, the client is automatically in default and without notice of default. From that moment on, statutory interest will have to be paid on the outstanding amount. All costs resulting from the late or non-receipt of payment by the client are for the account of the client. Such collection costs always amount to at least 10% of the total invoice amount with a minimum of € 150.00 ex VAT.

When payment is made in installments, & Brands has the right to (temporarily) suspend the service or the delivery of products in the event of late payment. In such a case, & Brands can apply a “freeze”, denying the client access to or disposal of certain services and / or products. The freeze will only be lifted after the parties have entered into consultation about this and have made agreements about the follow-up.

13. Obligations of the client

When & Brands carries out an assignment, client & Brands must:

• provide all necessary data and information in a timely manner;
• cooperate fully;
• to follow all directions explicitly given to it;
• provide access to relevant third party accounts such as CRM systems, Google Adwords, Google Analytics accounts, etc .;
• fully and in writing of any regulations relevant to the performance of the engagement.

14. Options for cancellation

If there is no contact with the client during the execution of the assignment, & Brands has the right to cancel the agreement after three (3) attempts to contact us in writing within at least two weeks. The hours spent up to that moment on the assignment in question will then be charged in accordance with the usual hourly rates. After termination, the client can no longer derive any rights from the agreement with & Brands.

If the client & Brands does not supply the necessary data and information, or does not deliver it in accordance with the agreements or if the client does not comply with their obligation in any other way, & Brands will have this after the client has been notified in writing with a recovery period of fourteen (14) days , the right to suspend the (further) execution of the assignment. If & Brands has to incur costs in connection with this, & Brands has the right to charge these costs at the usual hourly rates.

15. Information provided

& Brands is not responsible for the content, correctness, topicality, layout and circulation of material supplied to & Brands by the client. In addition, & Brands cannot be expected to be fully aware of all legislation that applies within the specific sector of the client. & Brands assumes that what is supplied by the client is in accordance with laws and regulations. Client indemnifies & Brands against any claims from third parties or authorities in this regard.

When newsletters, mailings and the like are sent, the client guarantees the correctness or validity of the (e-mail) addresses it supplies to which it is sent.

16. Use of music, images and videos

If via the products developed by us, such as websites or applications, music, images and / or videos are played and / or shown, costs are usually charged for this by collective management organizations, such as Buma / Stemra and / or SENA. These extra costs are not included in our rates and prices and are at all times for the account of the client. Clients indemnify & Brands against this.

17. Relationship clause

In addition, during the execution of an assignment and up to one (1) year thereafter, the client will not enter into contractual relationships with employees of & Brands and they will therefore not employ them directly or indirectly. This is only possible with prior written approval by & Brands.

Violation of the aforementioned point by the client is subject to an immediately payable fine of € 20,000 per violation and a fine of € 2,500 per day that such violation continues. The fact that fines become owed does not affect & Brands’ right to claim full compensation. This also includes enforcement costs, regardless of whether legal action is taken.

18. Privacy rules

The client agrees with & Brands to comply with the applicable privacy rules as included in the specific Dutch and European laws such as the Wbp and, from May 2018, the AVG. & Brands is not responsible for any violation of provisions of these regulations if they produce and send newsletters, mailings and the like at the request of clients. Clients indemnify & Brands against this.

This means, among other things, that the client informs third parties sufficiently, gives them access, corrects or removes the data if necessary and keeps them technically and organizationally secure and does not do this longer than necessary for the purpose for which they were obtained. That purpose must always be made known to third parties prior to obtaining permission and may not be changed in the meantime without renewed permission.

& Brands is at all times willing to cooperate in any way whatsoever and where possible in order to meet the aforementioned requirements and to enter into separate processing agreements with the client in order to bring things even better in accordance with laws and regulations.

By involving us in the processing of personal data, clients acknowledge that they have been informed that our technical and organizational security measures are in order according to the state of the art and they declare that they will not hold & Brands liable if a security incident should nevertheless occur. .

In the event that & Brands would be fined by the Dutch Data Protection Authority as a result of processing personal data on behalf of a client, we will be indemnified by the client. In addition, & Brands reserves the right to charge costs to the client for work on this point.

19. Liability

In the event of an attributable shortcoming in compliance (Article 6:74 BW), & Brands is only obliged to compensate damage insofar as this ensues from the law.

In those cases, the amount that & Brands must pay in compensation will never exceed the amount that & Brands has received from the client for the execution of the agreement. The VAT is not included here. In the case of a continuing performance contract, the amount that & Brands must pay in compensation on the basis of a shortcoming in the performance of damages will never exceed the amount that has been agreed for our services in the period of three (3) months prior to the moment that & Brands has failed to comply.

If & Brands, one or more of its employees or a subordinate for which it is responsible is guilty of a general unlawful act towards the client (art.6: 162 BW), & Brands is only liable for the damage caused if it is the result is intentional or gross negligence by & Brands. In that case, & Brands will never pay more per (series of related) event (s) than the amount it received for the execution of the agreement. VAT is not included here. This amount is never higher than € 5,000.

& Brands cannot be held liable for matters beyond its control. This also includes disappointing results from advertising campaigns. If & Brands has made forecasts in this context, these have always been estimates without obligation and & Brands cannot be held accountable for this.

These third parties must be held liable for damage resulting from acts or omissions by third parties. When & Brands is engaged to repair such damage, additional work will be charged separately.

All amounts that & Brands may have to pay to the client in the form of compensation will be reduced by any debits previously issued by & Brands to the client.

In addition to the aforementioned items, & Brands is never liable for consequential damage, damage due to delay, damage due to loss of profit, lost savings or business interruption, loss of data, damage as a result of not meeting a delivery period as a result of changed circumstances, damage that is the result of insufficient cooperation or following our instructions, or the provision of incorrect data or information.

& Brands can in all cases only be liable for damage if they have been informed of this in writing as soon as reasonably possible after the damage has occurred. In addition, the liability of & Brands never extends further than the amount that the insurer pays it out. For everything else, & Brands’ liability is limited.

Any liability will lapse two years after the assignment has been terminated by completion, cancellation or dissolution.

20. Force majeure

Force majeure: all external causes that cannot reasonably be foreseen and which have the consequence that & Brands is no longer able to (fully) fulfill its agreements.

This includes: strikes, illness of both our own people and third parties engaged, staff shortages, fire, business and technical malfunctions within the office or at the external parties engaged by the client, lack of sufficient or incorrect data, or when insufficient cooperation is granted.

During force majeure, all delivery and other obligations of & Brands are suspended. If the period in which fulfillment due to force majeure lasts longer than four (4) weeks, the parties are authorized to dissolve the agreement without the intervention of a court, without this meaning that one of the parties is liable to pay compensation to the other.

If & Brands has already performed work when the force majeure occurs and / or dissolution, it has the right to invoice this separately and the client is also obliged to pay the relevant invoice. This invoice is then deemed to arise from an independent agreement with & Brands.

21. Premature termination of the assignment

Apart from the right to compensation, both parties can in some cases terminate the agreement in writing without notice of default or rulings of a judge. This is the case with:

suspension of payment;
bankruptcy (s application);
liquidation or termination of the company.
This does not apply to mergers, acquisitions and the like. Apart from the right to compensation, both parties can terminate the agreement in writing with immediate effect or suspend the (further) performance of work without a court ruling if the other – always after a notice of default with a period of fourteen (14) days for recovery – attributable failure to fulfill his essential obligations under the agreement.

Apart from the right to compensation, & Brands can terminate the agreement in writing with immediate effect or suspend the (further) execution of work without a court ruling if the client has provided false and / or incorrect personal data or has concluded the agreement under false pretenses.

A dissolution, by the parties themselves or by the judge, never has retroactive effect. Both when we suspend the work, as well as when the agreement is dissolved, the client is obliged to pay for the (preparatory) work reasonably performed by us, including the obligations entered into with third parties. If there is a down payment, it will be deducted from the costs for these transactions.

All this does not affect the rights accruing to & Brands on the basis of the law or this agreement, including the right to compensation on the basis of loss of profit or the damage resulting from the dissolution. Any claim that & Brands has or will receive on the basis of this on the client will be immediately and immediately due and payable.

When the assignment is dissolved or canceled, any quantity discounts granted will lapse. Those discounts are After all, those discounts are based on the fact that & Brands has been awarded several orders. In such a case & Brands has the right to charge the provided discount separately to the client.