Terms and Conditions

Last updated on 13 March 2023

General Terms and Conditions of the “MARKETING ENGINEERS B.V.”

Article 1: Structure

These General Terms and Conditions, together with the applicable Statement of Work and any annexes (together the “Agreement”), form the contractual structure for the provision of Services by Marketing Engineers to Client.
For the purposes of this Agreement, “party” means either Marketing Engineers or Client.
If there is any inconsistency between provisions in different parts of this Agreement, those parts shall have precedence as follows unless expressly agreed otherwise: (a) the applicable Statement of Work and any annexes thereto, (b) these General Terms and Conditions, and (c) other annexes to this Agreement.

Article 2: Definitions

For the purpose of these general terms and conditions,

“Marketing Engineers” is understood as: The private company with limited liability Marketing Engineers, having its registered office and principal place of business in Rotterdam, registered with the Dutch Chamber of Commerce under registration number 89226984.
“Client” is understood as the person who awards a contract to Marketing Engineers or the person Marketing Engineers enters into an Agreement with.
“Deliverables” means any advice, communications, information, technology or other content that Marketing Engineers provides under this Agreement.
“Services”: activities to be performed by Marketing Engineers for Client in the context of this Agreement.

Article 3: Offers

Each offer made by Marketing Engineers is subject to contract, both as regards the price and delivery term mentioned in the offer and other aspects. All prices quoted by Marketing Engineers are excluding value added tax (VAT/BTW).

Article 4: Conclusion of the Agreement

Agreements are deemed to have been entered into on the day the Agreement was signed by Marketing Engineers or the day Marketing Engineers sent the written order confirmation or the day Marketing Engineers actually performed a contract awarded by the Client.
Once an agreement has been entered into between the Client and Marketing Engineers, the Client shall owe the full amount of the offer and/or the full fee payable to Marketing Engineers upon implementation of the Agreement and/or performance of the contract, whether or not the Client revokes and/or cancels its contract before, during or after performance of the contract by Marketing Engineers.

Article 5: Implementation of the agreement

Marketing Engineers shall at all times use its best efforts to implement the Agreement with the utmost care, to safeguard the Client’s interests to the best of its knowledge, and to pursue the best possible result for the Client. In so far as necessary and/or desired, Marketing Engineers shall keep the Client informed of the progress of the work performed under the Agreement.
If and in so far as Marketing Engineers deems it necessary for the implementation of the Agreement, Marketing Engineers has the right to unilaterally decide, on behalf and at the expense of the Client, to outsource work to third parties.
During the production of Deliverables, Marketing Engineers shall attempt to refrain from violating third party rights, applicable statutory requirements, rules of conduct, self-regulation rules and guidelines, insofar as they can or should be reasonably known to Marketing Engineers.
If the use by Marketing Engineers of the materials, programs and software is restricted or forbidden, Marketing Engineers shall, at its discretion: replace the materials, programs and software concerned to stop infringing third party rights; or to change or adjust the materials, programs and software to stop infringing third party rights; or acquire a usage right for the benefit and at the expense of the Client.
Without prejudice to the other provisions of these general terms and conditions, if a situation as referred to in 5.3 occurs, the Client is not authorized to withdraw, cancel or otherwise terminate the contract and/or Agreement or to suspend its payment on this ground.

Article 6: Terms

As regards delivery times or schedules agreed upon for the implementation of an Agreement and/or performance of a contract, Marketing Engineers shall, in any case, be entitled to extend the delivery term of the work, without Marketing Engineers owing any amount or being obliged to reduce its price, if Marketing Engineers cannot be required to deliver the work within the agreed term as a consequence of force majeure, circumstances caused by or attributable to the Client, or amendment of the Agreement or the terms and conditions pertaining to its performance.
Circumstances for which the Client is responsible and that lead to an extension of the aforementioned term include, but are not limited to, failure to provide the requested/correct information or failure to provide it in time. Failure to provide the requested/correct information or failure to provide it in time by fellow contractors shall fall under the responsibility of the Client and shall lead to an extension of the term.
Irrespective of the foregoing, exceeding the delivery times or failure to realize the agreed targets -due to any cause whatsoever- shall not make Marketing Engineers liable towards the Client for any compensation for damages, incurred by the Client or third parties, unless it can be clearly demonstrated that Marketing Engineers is to blame for exceeding the delivery times.

Article 7: Guarantee

Marketing Engineers provides no guarantees other than those given in these Terms and Conditions. Furthermore, Marketing Engineers cannot guarantee that the work performed by it shall lead to the result desired by the Client, although Marketing Engineers shall at all times use its best efforts to achieve the best result for the Client.
Nor does Marketing Engineers give any guarantee on the services supplied and rendered by it or on the services used by Marketing Engineers in the performance of its contract, although Marketing Engineers undertakes to use all available resources at the Client’s first request to attempt to solve any breakdowns and/or defects immediately.

Article 8: Payment

Unless otherwise agreed or stated in the invoice, payment of the agreed price must be made within thirty days of the invoice date into a bank account to be designated by Marketing Engineers. As a rule, this shall be the following bank account NL30BUNQ2086275137 in the name of Marketing Engineers B.V.. Without prejudice to the other provisions of this Agreement, Marketing Engineers shall always be entitled to demand a yet to be determined down payment from the Client. All contracts performed, i.e. work carried out by Marketing Engineers, can be invoiced at once.
If the Client fails to pay within the agreed terms, it shall owe the statutory commercial interest rate increased by a contractual interest rate of 2.5% per calendar month as from the invoice date, with a part of a month being deemed to be a full calendar month, as well as all legal and other costs incurred in respect of the collection of the debt.
The Client may not set off any amounts owed by Marketing Engineers with amounts owed to Marketing Engineers.

Article 9: Rescission and termination

Marketing Engineers may suspend the performance of the obligations or rescind the Agreement if: The Client fails to fulfill its obligations under the Agreement or fails to fulfill them in time. Circumstances Marketing Engineers has become aware of after entering into the Agreement constitute an odd reason to fear that the Client shall not fulfill its obligations. If there is good reason to fear the Client shall fulfill only part of its obligations or shall not fulfill its obligations properly, suspension is only permitted insofar as justified by the default. The Client, upon entering into the Agreement, was requested to furnish security for the fulfillment of its obligations under the Agreement and such security has not been furnished or is insufficient.
The Agreement is rescinded without court intervention, following a written declaration, when the Client is declared to be insolvent, applies for provisional suspension of payment, is placed under receivership, has its property attached or otherwise loses control of its assets or parts thereof unless the receiver or administrator acknowledges the obligations ensuing from this Agreement as estate debts and is able to furnish sufficient security demonstrating that Marketing Engineers shall be paid in full.
As a result of the rescission or termination, existing debts owed by either party shall immediately fall due. The Client is liable for any damage incurred by Marketing Engineers as a consequence of the rescissions, including, among other things, lost profit.
If, after entering into the Agreement, it emerges that the situation reported by the Client - without Marketing Engineers playing any clearly identifiable negative role - changes in part or in full (for example, the retirement of the entire board) and some or all of the targets assumed under the original Agreement shall not be realized within the agreed term, Marketing Engineers has the right to claim adjustment of the contract, in the form of an adjustment of the hours, price, targets or scope, in order to facilitate its performance.
Notice of termination of the Agreement between the Client and Marketing Engineers must be given in writing subject to a notice term of 1 month unless otherwise stated in the Agreement.
If the Agreement is terminated early by Marketing Engineers, it shall transfer the work to be performed to third parties in consultation with the Client, unless the termination is based on facts and circumstances attributable to the Client.
Any extra costs incurred by Marketing Engineers when transferring the work shall be charged to the Client.

Article 10: (Intellectual) Property

All copyrights, other intellectual property rights and powers as referred to in the Dutch Copyrights Act regarding services provided by Marketing Engineers, including advertising and marketing campaigns, are vested in Marketing Engineers, unless explicitly agreed otherwise in writing. The Client acknowledges these rights and shall refrain from infringing them.
All documents supplied by Marketing Engineers, such as (digital) reports, recommendations, designs, checklists, templates, software, applications etc. are solely intended to be used by the Client. The Client may not disclose and/or reproduce any information received from Marketing Engineers in any form whatsoever, unless Marketing Engineers gave written consent to the said disclosure and/or reproduction.
Marketing Engineers reserves the right to use the knowledge acquired in the performance of the work for other purposes, in so far as no confidential information is communicated to third parties.

Article 11: Confidentiality and Security

Information is confidential if it has either been deemed to be such by the one party or if the other party otherwise knows or should presume that such information is confidential.
Parties will use confidential information obtained from or made available by the other party only in accordance with the provisions in the Agreement, and will not provide third parties with such information either directly or indirectly or give permission to do so without the other party’s prior written consent. Parties will furthermore take all necessary precautions to protect such information against unauthorized use and disclosure.
The provisions in this article do not apply if a party is required to disclose confidential information by virtue of a judgement or a decision by a public authority.
Client is obliged to take measures to prevent unauthorized persons from having access to or from being able to access the Services and data. Marketing Engineers cannot be held liable for damage suffered by Client due to third parties making unauthorized or unlawful use of the Software and/or Service(s).
Marketing Engineers guarantees that it will secure its systems properly, taking the state of the art into consideration.
Parties will make every reasonable effort to properly secure the data or information provided to them by the other party. Parties undertake to use information obtained from the other party for no other purpose or in no other way than for the purpose for which and the way in which the information was provided or has become known to the other party in the execution of the Agreement.

Article 13: Liability

If Marketing Engineers is liable to Client (or any others for whom Services are provided) for loss or damage, either on the basis of non-performance or on the basis of a wrongful act and either by law or otherwise, Marketing Engineer’s liability is limited to the compensation of direct financial loss to a maximum of the amount of payments (excluding VAT) as received from client in respect of such Agreement in connection with the execution of services by Marketing Engineers. The overall liability of Marketing Engineers will never exceed the amount of €100.000,- (one-hundred-thousand euros).
The limitations set out in Section 12.1 above will not apply to losses or damages caused by Marketing Engineers’ intentional act or omission or gross negligence or to the extent prohibited by applicable law.
For the right to compensation to arise, it is required that the party incurring damage always reports the damage in writing to the party causing the damage as soon as possible after it arose.
Any claim for damages against Marketing Engineers will expire three (3) months after the issuing of such damage or sooner by virtue of law.
If and insofar such damage suffered by client (fully) relates to a breach of an Agreement of a third party supplier with whom Marketing Engineers has not or hardly been able to negotiate, including but not limited to a party such as Facebook or Google, then Marketing Engineers’ liability is limited to what Marketing Engineers has actually been able to recover from the relevant third party supplier. Immediately on request, Marketing Engineers will give its assistance in assigning (if and insofar possible) the claims against the aforementioned third party suppliers.

Article 14: No Responsibility to Third Parties

Unless specifically otherwise agreed with Client in writing, Marketing Engineers’ responsibility for performance of the services is to Client and Client alone. Should any Deliverable be disclosed, or otherwise made available, by or through Client or at Client’s request to a third party, Client agrees to indemnify Marketing Engineers against all claims by third parties, and resulting liabilities, losses, damages, costs and expenses (including reasonable external and internal legal costs) arising out of such disclosure.

Article 15: Applicability of the terms and conditions

The Terms and Conditions apply to all of Marketing Engineers’ offers, as well as to all Agreements and any ensuing Agreements between Marketing Engineers and Client under which Marketing Engineers provide Services to Client.
Applicability of the Client’s general purchase, delivery, and payment conditions or any other general or special terms and conditions of Client are explicitly excluded. Each individual stipulation to the contrary will only be valid if and to the extent that Marketing Engineers has accepted such stipulation to the contrary in writing.
If any provision of these Terms and Conditions is null and void or is voided, the other provisions of these Terms and Conditions remain in full force. Marketing Engineers and Client will in such cases consult with each other to agree on new provisions replacing void or voided provisions.

Article 16: Other provisions

The parties are held to handle facts and circumstances, which come to the knowledge of the parties in the context of the Agreement and/or the contract, confidentially. Third parties involved in the implementation of the Agreement shall be bound to the same confidentiality regarding such facts and circumstances pertaining to the Client.
Marketing Engineers reserves the right to amend and/or supplement its general terms and conditions. Amendments of and additions to the general terms and conditions also apply to existing Agreements.
If one or more provisions of these general terms and conditions are or shall be invalid or nullified, the other provisions shall remain in full force and effect. The parties undertake to replace an invalid or nullified provision by a valid provision that approaches the invalid or nullified provision as closely as possible.
The Agreement and any Agreements ensuing from it are governed by Dutch law. The competent court of the district in which Marketing Engineers holds its registered office is exclusively competent to take cognizance of the disputes between Marketing Engineers and the Client.
These terms and conditions will be sent free of charge on request. The terms and conditions can also be consulted at and downloaded from the website of Marketing Engineers.

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