Terms and Conditions
Company name: MarketingLenses B.V.
Managing Directors: Stan Lenzen / Éléonore Frère
Address: Keizersgracht 391 A, 1016 EJ Amsterdam, Netherlands
Chamber of Commerce number: 80568718
VAT number: NL861719608B01
Telephone: +31 61 53 06 463
Article 1 Definitions
In these Conditions:
1.1 Client: means the natural person or the legal entity that has engaged MarketingLenses to perform the Services.
1.2 MarketingLenses: means MarketingLenses B.V. located in Amsterdam, the Netherlands.
1.3 Agreement: means the Offer and Agreement and/or addendum and/or supplement thereto, signed by both parties wherein an agreement is formed concerning the services which MarketingLenses undertakes to provide to Client.
1.4 Services: means all the services to be provided by MarketingLenses on Client’s behalf for which an assignment has been designated and which has been accepted by MarketingLenses as well as all Work for MarketingLenses ensuing from such Services.
1.5 Documents: means all information or data made available by Client to MarketingLenses, whether or not contained on material or nonmaterial carriers and whether or not entrusted to third parties as well as all data produced or compiled by MarketingLenses in connection with the execution of the Agreement.
Article 2 Applicability
2.1 These general terms and conditions apply to: all offers, quotations, engagements, legal relationships, and agreements, by any name, whereby MarketingLenses undertakes/will undertake to provide Services to Client as well as to all Work for MarketingLenses ensuing from any of the above.
2.2 Any deviations from, and additions to, these general terms and conditions shall only be valid if they have been explicitly agreed in writing in, for example, a (written) Agreement or engagement confirmation letter.
2.3 If any provision in these general terms and conditions and the Agreement were to conflict, the provision set out in the Agreement shall be applicable regarding the contradiction.
2.4 The applicability of Client’s general terms and conditions is explicitly excluded by MarketingLenses.
Article 3 Offers and fees
3.1 All offers made by MarketingLenses are entirely without obligations.
3.2 Signing an offer issued by MarketingLenses results in an Agreement with MarketingLenses.
3.3 Offers by MarketingLenses remain valid for 30 days unless MarketingLenses states another term in the offer.
3.4 Changes to the originally concluded Agreement between the Client and MarketingLenses are only valid from the moment that these changes have been accepted and signed by both parties by means of an additional or amended Agreement.
3.5 Offers or fees for one assignment do not automatically apply to future assignments.
Article 4 Execution of the Agreement
4.1 The Agreement between MarketingLenses and Client is for an indefinite period unless parties expressly agree otherwise in writing.
4.2 MarketingLenses shall perform the Agreement to the best of its ability and with due regard for the applicable rules (of professional practice) and laws.
4.3 MarketingLenses will provide the Services for the benefit of the Client solely for the purposes set out in the Agreement. Third parties cannot derive any rights from the Services performed on behalf of or rendered to the Client.
4.4 MarketingLenses shall determine the manner in which the Agreement will be executed and by which employee(s).
4.5 MarketingLenses may have the Services provided by a third party to be designated by MarketingLenses.
4.6 The Client is obliged to make available to MarketingLenses all the Documents which MarketingLenses considers to be necessary to enable it to correctly provide the Services in the required manner and in good time. MarketingLenses shall determine what required form, required manner and in good time shall be understood to mean.
4.7 The Client warrants the accuracy, completeness, and reliability of the Documents provided by it, even where such Documents originated with third parties.
4.8 MarketingLenses may suspend the execution of the Agreement until such time as Client has fulfilled the obligations referred to in clause 6 and 7 above.
4.9 The Client indemnifies MarketingLenses against any loss or damage due to inaccurate or incomplete Documents.
4.10 Any additional costs incurred and hours spent by MarketingLenses as well as any other loss or damage sustained by MarketingLenses due to the Client’s failure to provide the Documents required for the execution of the Agreement, or its failure to deliver such Documents in good time or properly, shall be for the account and risk of the Client.
Article 5 Intellectual property
5.1 The execution of the Agreement by MarketingLenses does not constitute the assignment of intellectual property rights vested in MarketingLenses to Client. All intellectual property rights that are created during, or which arise from, the execution of the Agreement shall belong to MarketingLenses.
5.2 The Client is explicitly prohibited from reproducing, publishing, or otherwise exploiting the products incorporating intellectual property rights of MarketingLenses or products in which intellectual property concerning the use of which MarketingLenses has acquired rights of use, including in this connection in any event, but not confined to: computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros, and other intellectual products.
5.3 Client is not permitted to submit the products referred to in clause 5.2 above to any third party or to publish this in a public domain without the prior consent in writing of MarketingLenses.
5.4 MarketingLenses will inform Client and a third party if it uses intellectual property from that third party. The Client indemnifies MarketingLenses against any claim by a third party due to a (possible) infringement of an intellectual property right of that third party.
5.5 Client agrees that any conversation, whether related to cooperation and/or negotiation between MarketingLenses and its partner webmasters and/or partner bloggers, will remain private and will not, under any condition, need to be shared with Client.
Article 6 Force Majeure
6.1 MarketingLenses is entitled to suspend its obligations during the period that MarketingLenses is prevented from doing so due to force majeure, without being in any way liable for compensation to the Client or a third party.
6.2 Force majeure includes but is not limited to: company occupation, government measures, malfunctions or defects to computers, in software or hardware on the internet, intranet or network or at hosting companies, delays during transport or at suppliers, illness, incapacity for Work or loss of personnel, everything in the company of MarketingLenses, of the Client as well as of third parties who MarketingLenses must involve to provide the Services.
6.3 The Client is entitled to dissolve the Agreement by registered letter if the suspension referred to in clause 6.1 continues for more than 3 consecutive months.
6.4 If MarketingLenses has already started performing the Work on the occurrence of a force majeure, it is and will remain entitled to invoice the Work performed separately and the Client is obliged to pay this invoice as if it concerned a separate Agreement.
Article 7 Fees and costs
7.1 Client will be charged for the Services provided by MarketingLenses based on the amount of time spent and the costs incurred by MarketingLenses. The payment of the fee is not dependent on the result of the Services unless otherwise agreed.
7.2 In addition to the fee, Client will also be charged for any expenses, including but not limited to travel and accommodation, incurred by MarketingLenses and any third parties engaged by MarketingLenses in the course of providing the Services under the Agreement.
7.3 MarketingLenses may ask Client for an advance payment.
7.4 MarketingLenses reserves the right to amend the agreed-upon fee, should the fees or expenses connected to the provision of the Services change at any point before the Agreement has been fully executed.
7.5 Where statutorily required, turnover tax (‘omzetbelasting’) will be charged separately on all amounts payable by the Client to MarketingLenses.
Article 8 Payment
8.1 Unless otherwise agreed, Client shall ensure that the amounts owing to MarketingLenses are paid, without Client being entitled to any deduction, discount, or set-off, within 14 days after the date of invoice. The date of payment shall be the date on which the amount due is credited to MarketingLenses’ bank account.
8.2 If Client has not made payment within the term specified in clause 8.1 above, Client shall be in default by operation of law, and MarketingLenses shall be entitled to charge the statutory (commercial) interest from that moment onward.
8.3 If the Client has not made payment within the term specified in clause 8.1 above, the Client shall be obliged to reimburse all judicial and extrajudicial (collection) costs incurred by MarketingLenses. The reimbursement of the incurred costs shall not be limited to any order for costs given by any court.
8.4 In the event of a jointly awarded Agreement, the Clients shall be mutually liable for the payment of the invoice amount and the interest (payments) and costs due.
8.5 If MarketingLenses believes that Client’s financial position or payment record gives it reasons to do so, or if Client fails to make an advance payment or to meet an expense claim within the specified term of payment, then MarketingLenses may demand that Client immediately provide (additional) security in a form to be determined by MarketingLenses. If Client fails to provide the required security, MarketingLenses shall be entitled, without prejudice to its other rights, to suspend the further execution of the Agreement forthwith and all amounts owed to MarketingLenses by Client of whatever nature and for whatever reason shall become immediately due and payable.
Article 9 Liability and indemnities
9.1 MarketingLenses is not liable for any loss or damage sustained by the Client due to the fact that the Client has provided inaccurate or incomplete Documents.
9.2 MarketingLenses is not liable for any consequential loss or damage, business interruption loss or indirect loss or damage due to MarketingLenses’ failure to perform, failure to perform in good time, or failure to ensure proper performance.
9.3 MarketingLenses is not liable for any potential reputational loss, brand damage (e.g., negative reviews or social media publication, etc.) and/or loss in rankings in search engines/ visibility.
9.4 MarketingLenses makes every effort to realize an optimal position in the Google search engine and to maintain it during the term of the Agreement. MarketingLenses does not guarantee any result under any circumstances, nor is it liable for (damage resulting from) the result. MarketingLenses is also not liable for all direct or indirect damage that is / will be caused by backlinks created by MarketingLenses.
9.5 MarketingLenses shall strive to have links callable from the linked page for at least 12 months. Should it transpire that placed links are no longer callable within that period, MarketingLenses shall promptly strive for a comparable link. MarketingLenses has no duty to check placed links. If the Client changes the target pages of links, MarketingLenses has no duty to arrange for the rerouting or the creating of new links. If MarketingLenses acts for the Client in such cases, remuneration as per the agreed per diem rates shall be owed.
9.6 MarketingLenses makes no warranty, express, implied, or statutory, with respect to the services provided, including without limitation any implied warranty of reliability, usefulness, merchantability, fitness for a particular purpose, non-infringement, or those arising from the course of performance, dealing, usage or trade. By signing the Agreement, Client acknowledges that MarketingLenses neither owns nor governs the actions of any search engine or the Client’s full implementations of recommendations provided by MarketingLenses. Client also acknowledges that due to non-responsibility over full implementations, fluctuations in the relative competitiveness of some search terms, recurring changes in search engine algorithms, and other competitive factors, it is impossible to guarantee number one rankings or consistent top ten rankings, or any other specific search engines rankings, traffic or performance.
9.7 MarketingLenses is only liable to Client for loss or damage resulting directly from gross negligence or intent on the part of MarketingLenses in the execution of the Agreement. This liability is limited to the amount which, according to MarketingLenses’ liability insurer, is payable for the case concerned, plus any policy excess for MarketingLenses under the terms of the insurance.
9.8 If, for whatever reason, the liability insurer does not pay out, then MarketingLenses’ liability shall be limited to the amount of the fee charged for the execution of the Agreement.
9.9 Client is obliged to take measures to mitigate any loss or damage. MarketingLenses is entitled to rectify or limit the damage by carrying out repairs or improving the performed Services.
9.10 Client indemnifies and will hold MarketingLenses harmless from any and against any claims by third parties with respect to loss or damage caused by Client’s failure to provide MarketingLenses with any Documents, or its failure to provide MarketingLenses with fully accurate or complete Documents.
9.11 Client indemnifies and will hold MarketingLenses harmless from any and against any claims by third parties (also including employees of MarketingLenses and any third party engaged by MarketingLenses) who sustain loss or damage in connection with the execution of the Agreement due to any action taken or omitted by Client or due to unsafe situations in its company or organization.
Article 10 Termination
10.1 Client and MarketingLenses may (prematurely) terminate the Agreement at any time with due observance of a three (3) month notice period. If the Agreement ends before the Services have been completed, Client shall be liable to pay the fee in accordance with the hours and/or units specified by MarketingLenses for Services performed on behalf of Client.
10.2 Notice of termination must be given in writing.
10.3 If the Client has effected (premature) termination, MarketingLenses shall be entitled to compensation for utilization losses that have arisen and which can be demonstrated as well as to the reimbursement of any additional costs already incurred by MarketingLenses and any costs resulting from any cancellation of the services of third parties who have been engaged (such as – amongst other things – any subcontracting-related costs).
10.4 If MarketingLenses has effected (premature) termination, Client shall be entitled to receive MarketingLenses’ assistance in transferring Work to third parties, unless in the event of wilful misconduct or gross negligence committed by Client as a result of which MarketingLenses feels compelled to effect termination. The entitlement to assistance as provided in this clause is dependent on the Client having made all underlying outstanding advance payments or having met all expense claims.
10.5 MarketingLenses can also suspend the Services or terminate the Agreement with immediate effect, both in respect of any specific Services or generally, if an event arises that, were the Agreement to continue might unreasonably burden or affect MarketingLenses, such as reputation damage, not receiving clear and timely instructions from Client, non-compliance with any applicable laws or regulations by Client, unreasonably refusing to settle MarketingLenses’ invoice, insolvency or a continued impairment of the moral, legal or financial integrity of Client, to be determined at the sole discretion of MarketingLenses.
10.6 Upon termination (a), the Client shall reimburse or pay MarketingLenses for any fees, charges, and expenses accrued up to and including the date of termination and not previously reimbursed or paid and (b) Client shall not wrongfully represent itself as continuing to retain the services of MarketingLenses.
Article 11 Confidentiality
11.1 Parties agree to treat as confidential and use only for the benefit of the other party, all confidential information which one party discloses to the other or permits the other to observe or which is generated by the Services. Parties further agree that they will take every reasonable precaution to preclude disclosure of such information for such period as such information remains confidential.
11.2 This provision will survive the termination of this Agreement, irrespective of the reason for such termination.
Article 12 Electronic communication
12.1 During the execution of the Agreement, Client and MarketingLenses can, at Client’s request, communicate with one another using electronic means.
12.2 Client and MarketingLenses shall not be liable towards one other for any loss or damage that may be sustained by either or each of them as a result of the use of electronic means of communication, including – but not restricted to – loss or damage due to non-delivery or delayed delivery of electronic communication, interception or manipulation of electronic communication by third parties or by software/equipment used for transmitting, receiving or processing electronic communication, transmission of viruses and the failure or poor functioning of the telecommunications network or other resources required for electronic communication, unless the loss or damage is the result of gross negligence or intent on the part of the other party.
12.3 Client and MarketingLenses will both do or omit to do everything that may reasonably be expected of each of them in order to prevent the risks referred to above from occurring.
12.4 The data abstracts from the sender’s computer systems shall constitute conclusive evidence of (the content of) the electronic communication sent by the sender until such time as evidence to the contrary is furnished by the receiver.
Article 13 General Data Protection
13.1 For the purposes of performing the Services and complying with statutory requirements, MarketingLenses may, from time to time, collect, compile and keep certain data (” Data”) whether within or outside of the jurisdiction of the Applicable Law in accordance with the measurements taken in the Privacy Statement of MarketingLenses, which can be found on the website of MarketingLenses or through the following link: https://www.marketinglenses.com/privacy-cookies-disclaimer/.
Article 14 Other provisions
14.1 If MarketingLenses performs Services on the location of Client, Client shall ensure that a suitable place of work is provided which meets the statutory occupational health and safety standards and complies with other applicable regulations in the field of OH&S. Client shall ensure that MarketingLenses is in that case provided with office space and other facilities which MarketingLenses considers to be necessary or useful to execute the Agreement and which comply with all the (statutory) requirements to be made in that regard. With regard to any (computer) facilities made available, Client is obliged to ensure continuity, amongst other things by means of adequate back-up, security, and virus control procedures.
14.2 Client will not hire any employees involved in the provision of the Services or approach them with a view to offering them direct or indirect employment, temporary or otherwise, with Client or asking them to perform Work directly or indirectly for the Client, in salaried employment or otherwise, during the term of the Agreement or any extension thereof and during the 12 months thereafter.
14.3 Client agrees that MarketingLenses can refer to Client on its website and/or promotional documentation, even in the event that a Non-Disclosure Agreement between the parties has been signed.
Article 15 Applicable law and jurisdiction
15.1 The Agreement and these Terms and Conditions shall be governed by Dutch law.
15.2 MarketingLenses is committed to providing Client with the highest quality of service. If the Client has any concern or complaints about any of the Services provided, MarketingLenses wishes to discuss and try to resolve them with Client as soon as possible.
15.3 Any dispute will be settled by the competent court in the district in which MarketingLenses has its registered office.
Article 16 Repair clause in respect of nullities
16.1 If any provision from these Terms and Conditions or the underlying Agreement should be wholly or partly void and/or invalid and/or unenforceable as a result of any statutory provision or regulation, court judgment or otherwise, then this will have no effect whatsoever on the validity of all other provisions in these Terms and Conditions or the underlying Agreement.
16.2 If any provision in these Terms and Conditions or the underlying Agreement should not be valid for a reason referred to in the preceding clause, but would be valid if it had a more limited scope or intention, then such provision will – firstly – automatically apply with the most far-reaching or most extensively more limited scope or intention with which or within which it is valid.
16.3 Without prejudice to the provisions in clause 14.2 above, the parties may, at their discretion, consult one another with the aim of agreeing on new provisions that will replace the void or nullified provisions, with every possible attempt being made to ensure they are as close as possible to the object and purport of the void or nullified provisions.