General Terms and Conditions of Ada Beta

Version: November 2019

These General Terms and Conditions will apply to all quotes and the formation, content and performance of all agreements to be concluded between Ada Beta as the contractor and clients. Deviations from these Terms and Conditions will only be valid if they have been agreed on in writing.

If there are questions about these Terms and Conditions, please contact us as indicated below:

E-mail: info@AdaBeta.nl

Offers and quotes

All of our quotes will be without obligation, will apply for at most six weeks and will only be binding on Ada Beta if they have been recorded in writing and agreed on with the client in a signed service agreement confirmation or signed offer (offerte).

Continuing performance contracts

For our services pertaining to SEO, SEA, social media campaigns, website maintenance, target marketing data analytics, online marketing setting management and the use of data analysis time, Ada Beta will work with continuing and self-renewing contracts in which agreements are made with the client that we will carry out a project for a specified period which will continue to roll with a 12 month contract maturity. The details of this project will be specified out in consultation for deliverables specified in the quote, which will be spent on the project during a the contracted period.

Such a contract may be terminated in writing in each case up to twelve calendar months before the contract ends. As soon as notice has been received the contract will terminate on the last calendar day of the twelfth month following the notice.

Advertising sales rules

When advertisements are sold, an option will be to use cookies. If cookies must be placed and/or read out for clients, the clients themselves will be fully responsible for complying with any relevant laws and the clients will indemnify Ada Beta in the event of any assertions of liability or penalties.

Clients will undertake to fully comply with the applicable laws about cookies and data analysis included, for example, in the Dutch Telecommunications Act, the Dutch Personal Data Protection Act and/or the European General Data Protection Regulation. At Ada Beta’s request, this will be demonstrated in writing.

We will not be responsible or liable for the content of advertisements or campaigns devised by the client. Ada Beta has the right to refuse to support or facilitate any campaigns that she believes to be in bad taste, are hateful or discriminatory in nature, solicit or advocate violence, are dangerous for people, animals and otherwise in conflict with applicable laws. As Ada Beta operates internationally these applicable laws can be taken from any of the areas where Ada Beta operates in, or has the ambition to do so. To ensure Ada Beta is never responsible for the content of the campaigns and does not have a duty, statutory or otherwise, to vet, verify or otherwise provide a quality control on the content or form of any content or advertisements. 

Delivery periods, modifications, contract extras and outsourcing

Assignments will usually be performed in phases. A phase will be considered completed if the client has approved it or if the client has failed to reject the phase within the period furnished by Ada Beta. From that time, it will no longer be possible to implement changes in a previous phase. This may only occur after consultation and approval for any contract extras.

Ada Beta will do its very best to meet the agreed delivery periods, except if instructions, cooperation or materials necessary for performance are not forthcoming or consultation with the client takes longer than anticipated, or in the event of illness or situations of force majeure. If an agreed period threatens to be exceeded, the client will be notified.

If an assignment (or major portion thereof) needs to be modified at the client’s request, the client must pay for this, the current assignment will then be terminated and a new quote will be drawn up. A new price for the additional work will be agreed on as well.

If contract extras are involved, the client will be contacted. Agreements will then be made on the amount of contract extras, the costs and the payment terms.

Ada Beta will reserve the right to outsource work to third parties. Ada Beta will act as the principal contractor in that case.

If the product delivered by Ada Beta contains deviations that are minor compared with what was agreed on, the client will not be entitled in principle to reject the product or to obtain a discount, compensation or rescission of the agreement. After performing the assignment, Ada Beta need not save the data or materials used.

Warranty

Ada Beta will warrant the products and/or services for three (3) months after delivery. ‘Warranty’ will mean that any apparent and/or non‑apparent defects will be fixed by Ada Beta at no cost. A Service Level Agreement (‘SLA’) or time card may be agreed on after this period. If there are defects, we will, at the client’s request, do everything that we can to fix these within a reasonable period. The client may not invoke the warranty if:

• the defects observed have resulted from incorrect use by the client or third parties;
• changes have been made in any way to our products and/or services by the client or third parties;
• the client has not fulfilled its obligations under the agreement concluded with Ada Beta (or has not timely or fully done so);
• data has been lost due to incorrect use by the client or third parties;
• products and/or services are involved for which a warranty cannot be given, such as work relating to external design;
• Ada Beta has been indemnified by the client against any third-party claims in the case of defects;
• the defective items fall under the category ‘contract extras’, such as new functionalities.

Third parties

In providing services, Ada Beta must sometimes depend on third-party services, the functionalities of these services and the degree to which these are compatible.

Such services or functionalities may not work optimally with Ada Beta’s own services. We will do everything possible to avoid this, but will not give any guarantee in this respect. Ada Beta will not be responsible for this, such that we will not be obliged to find a solution for this non-optimal operation at no cost. We will not offer any warranties in this regard.

Complaints and support

If the client has a complaint, the client must report this to Ada Beta as soon as possible. We will then do our best to resolve the complaint. Submission of a complaint will not in any way change the payment obligations, which the client has assumed towards us (or the applicability of these obligations).

Retention of title

Any items that Ada Beta creates and/or delivers for the client will remain its property until all amounts that the client owes Ada Beta for our products and/or services have been paid in full.

The client may not grant any pledges on items falling under this retention of title or otherwise encumber these items. If third parties attach items falling under the retention of title or want to create or assert certain rights to these items, the client must provide written notice to Ada Beta within seven (7) days.

Intellectual property rights

Ada Beta will own any intellectual property rights (‘IP rights’) attached to or arising with regard to any products or services delivered. If the IP rights are held by third parties, which have given us permission to use them, these IP rights will always be held by the third parties in question.

If there is any breach of IP rights by the client without Ada Beta’s permission, Ada Beta will be entitled to compensation which amounts to at least three (3) times the normal rate and which is reasonably proportional to the particular use. This will not affect any other rights, such as the right to payment of compensation for the entire damage suffered as a result of this use.

If our products and our services come with designations indicating that the relevant IP rights are held by Ada Beta or third parties engaged by it, these designations may not be removed and/or impaired. Ada Beta will have the broadest right imaginable to state or remove its name (or have its name stated or removed) for or concerning publicity pertaining to an assignment and may indicate the result of the assignment on its own website or through other channels.

The client may not file or register IP rights concerning Ada Beta’s products and/or services without prior written permission.

Confidential Information

The parties will agree to take as many preventive measures as possible to ensure that confidential information is kept secret.

Rates and payment terms

Ada Beta will only conclude agreements if a fixed periodic or other rate, including but not limited to a performance fee and/or success fee, has been agreed on beforehand or if a fixed price applies. Agreements made with Ada Beta will not automatically apply to future follow-up or other assignments from the client outside of the continuation of the existing contract.

With a fixed price or rate for a specific product or service Ada Beta will not begin the work until payment of an advance invoice in the amount of 100% of the agreed fixed price has been received. If there is a continuing performance contract, the monthly costs will always be charged to clients at the start of each calendar month.

If Ada Beta procures certain items and/or services to perform the assignment from third parties, all of the associated costs must be paid in full by clients beforehand. This payment obligation will also apply to creating printed matter.

The rates used by Ada Beta will always be exclusive of VAT.

Ada Beta’s hourly and other rates may be set again by it in January of each year. This may only be different if agreed on in writing by the parties.

Payment must be made in full no later than fourteen (14) days after the invoice date. Amounts invoiced by Ada Beta may not be set off. If the 14-day period is exceeded, the client will automatically be in default without a notice of default. From that time, statutory interest on the amount outstanding must be paid. Any costs ensuing from, or associated with late payment or non-payment by the client will be fully paid by the client. Such collection costs will always be at least 10% of the total invoice amount, with a minimum of €500, exclusive of VAT.

If payment is made in installments, Ada Beta may, in the event of late payment, temporarily or otherwise suspend the delivery of services or products. In such instances, Ada Beta may apply a ‘freeze’, with the client being denied access to or disposal of certain services and/or products. The freeze will not be lifted until the parties have consulted with each other and agreements have been made about the follow-up.

Ada Beta has the right to transfer any part of the collection process to third parties who specialize in this matter. Unless the client is in breach of its payment obligations Ada Beta must give at least 1 (one) month notice to the client of any changes such as a transfer to a third party or from one third party to another.

Client’s obligations

If Ada Beta performs an assignment, the client must:

• timely provide Ada Beta with any necessary data or information;
• fully cooperate with Ada Beta;
• follow any explicit instructions given to it by Ada Beta;
• offer Ada Beta access to relevant third-party accounts, such as CRM systems, Google Adwords, Google Analytics accounts and the like;
• keep Ada Beta fully apprised in writing of any regulations relevant to performing the assignment.

Termination options

If contact cannot be obtained with the client while the assignment is being performed, Ada Beta will be entitled to terminate the agreement after having made three (3) attempts within at least two weeks to make contact in writing. The entire amount of all fees incurred up to that point and to be incurred under the contract until the first maturity date (12 months after this point), will then be charged in accordance with the agreed contractual terms. The client may no longer derive any rights from the agreement with Ada Beta after termination.

If the client does not furnish Ada Beta the necessary data and information, or furnishes this late or not in accordance with the agreements, or if the client otherwise does not fulfill its obligation, Ada Beta may, after having given the client written notice of this with a remedy period of fourteen (14) days, suspend performance (or further performance) of the assignment. If Ada Beta must incur costs in connection with this, Ada Beta may charge these costs at the hourly rate of Euro 350,00 (to be reset every January).

Data furnished

Ada Beta will not be responsible for the content, accuracy, layout or number of copies of materials delivered by the client to Ada Beta. In addition, Ada Beta cannot be expected to be fully aware of all the laws that are applicable within the client’s specific industry. Ada Beta will assume that the materials delivered by the client are in accordance with the laws and regulations. The client will indemnify Ada Beta against any claims by third parties or the authorities in this respect.

If newsletters, mailings or the like are sent, the client will warrant the accuracy or validity of the e-mail or other addresses which have been provided by it to which these items are sent.

Use of music, images and videos

If products developed by us, such as websites or applications, music, visual materials and/or videos, are played and/or displayed, costs will usually be charged by collective management organizations, such as Buma/Stemra and/or SENA. These additional costs will not be included in our rates and prices and will always be paid separately by the client. Clients will indemnify Ada Beta against these.

Exclusivity

Assignments provided to Ada Beta will always be exclusive and will not be provided simultaneously to other parties, too. In the event that clients engage Ada Beta for the management of their settings for online marketing Ada Beta will have full control of these in every way. No setting adjustment can take place without written permission from Ada Beta, any breach of the foregoing will be viewed as a potential breach of the entire contract and will entitle Ada Beta to compensation which amounts to at least three (3) times the normal rate and which is reasonably proportional to the particular use. This will not affect any other rights, such as the right to payment of compensation for the entire damage suffered as a result of this use.

Non-solicitation clause

Further, the client will not enter into any contractual relationships with Ada Beta’s employees while the assignment is being performed or for one year after this, and will therefore also not directly or indirectly employ them. This may only be deviated from with Ada Beta’s prior written approval.

If the client violates the aforementioned provision, it will owe an immediately due and payable penalty of €20,000 for each violation and a penalty of €2,500 for each day that such a violation continues. The fact that penalties become owed will not affect Ada Beta’s right to seek full compensation. This will also include enforcement costs, irrespective of whether legal measures are instituted.

Privacy rules

The client will agree with Ada Beta that it will comply with the applicable privacy rules as included in the Dutch and European laws specifically formulated for this, such as the Personal Data Protection Act and, from May 2018, the General Data Protection Regulation. Ada Beta will not be responsible for any violations of the provisions under these regulations if it produces and sends newsletters, mailings or the like at the client’s request. Clients will indemnify Ada Beta against these.

This will mean, for example, that the client will sufficiently inform third parties, will allow them to inspect data and, if necessary, correct or delete data, and will keep data technically and organizationally protected, doing so for no longer than necessary for the purpose for which the data was obtained. This purpose must always be disclosed to third parties prior to obtaining permission and may not be changed in the interim without renewed permission.

Ada Beta will be prepared at all times to cooperate in whatever manner and where possible in order to conform to the aforementioned requirements and will enter into separate data processing agreements with the client to make this even more consistent with the laws and regulations.

By involving Ada Beta in the processing of personal data, clients will thereby acknowledge that they have ascertained that our technical and organizational security measures are in order based on the state of the art, and they will thereby state that they will not hold Ada Beta liable if a security incident nonetheless occurs.

If the Dutch Data Protection Authority imposes a penalty on Ada Beta as a result of processing of personal data at a client’s instruction, Ada Beta will be fully indemnified by the client. Ada Beta will also reserve the right to charge the client costs for work in connection with any penalties fees or otherwise, including – but not limited to – associated legal fees and increased insurance premia as a result of this.

Liability by Ada Beta

If there is a culpable breach of performance (Section 6:74, Dutch Civil Code), Ada Beta will only be obliged to compensate damage insofar as this ensues from the law.

In those instances, the amount that Ada Beta which must pay in compensation will never exceed the amount that Ada Beta has received from the client to perform the agreement. This will not include VAT. If there is a continuing performance contract, the amount that Ada Beta must pay in compensation on account of a breach of performance will never exceed the amount agreed on for our goods/services in the period three (3) months before Ada Beta committed the breach.

If Ada Beta, one or more of its employees, or a subordinate for which it is responsible has committed a general wrongful act (Section 6:162, Dutch Civil Code) towards the client, Ada Beta will only be liable for the damage caused if this results from willful misconduct or gross negligence by Ada Beta. In this situation, Ada Beta will not provide compensation for each event (or series of related events) in excess of the amount that it has received to perform the agreement. VAT will not fall under this. This amount will never exceed €5,000.

Ada Beta cannot be held liable for matters that are outside its control. This will also include disappointing results from advertising campaigns. If Ada Beta has made forecasts in this connection, these will always have been non‑binding estimates and Ada Beta will not be liable for this.

Liability must be asserted against third parties for damage resulting from their acts or omissions. If Ada Beta is engaged to fix such damage, additional work for this will be charged separately.

Any amounts that Ada Beta may have to pay the client in the form of damages will be subtracted from any debits furnished by Ada Beta to the client previously.

Supplementary to the aforementioned items, Ada Beta will never be liable for consequential damage, damage due to delays, damage as a result of lost profits, lost savings or business interruptions, the loss of data, damage as a result of not meeting a delivery period because of changed circumstances, damage as a result of insufficient cooperation or compliance with our instructions, or the provision of incorrect data or information.

In all instances, Ada Beta cannot be liable for damage until it has been given written notice of the damage as soon as reasonably possible after the damage arises. Ada Beta’s liability will also not extend further than the amount that the insurer pays as benefits to it. Ada Beta’s liability will be limited for everything in excess of this.

Any liability will be extinguished after one year (twelve calendar months) has passed since the assignment ended through completion, termination or rescission.

Force majeure

‘Force majeure’ will refer to any external causes which were not reasonably foreseeable and which result in Ada Beta’s not being able (or no longer being able) to fulfill its agreements in whole or in part.

This will include strikes, sickness by both Ada Beta’s own personnel and third parties which have been utilized, personnel shortages, fire, operational and technical breakdowns within the office or at the external parties engaged by the client, not having sufficient data or having incorrect data, and insufficient cooperation being provided.

Ada Beta’s delivery and other obligations will be suspended during the period of force majeure. If the period during which performance because of force majeure lasts longer than four (4) weeks, the parties may rescind the agreement without court intervention and without one of the parties thereby owing compensation to the other party.

If Ada Beta has already performed work when the force majeure situation arises and/or rescission occurs, it may separately invoice this, with the client also being obliged to pay the invoice concerned. This invoice will then be deemed to ensue from a separate agreement with Ada Beta.

Early termination of assignments

Independently of the right to compensation, either party may, without notices of default or decisions by courts being necessary, terminate the agreement in writing in some situations, in the event of:

• a suspension of payments;
• liquidation or a request for liquidation;
• winding‑up or cessation of the business.

This will not apply to mergers, acquisitions or the like.

Independently of the right to compensation, either party may, without a decision by the court being necessary, terminate the agreement immediately in writing or suspend performance (or further performance) of the work if the other party has – always after having received a notice of default with a period of fourteen (14) days to remedy the situation – culpably breached its material obligations under the agreement.

Independently of the right to compensation, Ada Beta may, without a decision by the court being necessary, terminate the agreement immediately in writing or suspend performance (or further performance) of the work if the client has transmitted false and/or incorrect personal data or concluded the agreement under false pretences.

Rescission, whether by the parties themselves or by the court, will never apply retroactively. Both if we suspend the work and if the agreement is rescinded, the client must compensate the preparatory and other work reasonably performed by us, which will also include obligations entered into with third parties. If a down payment has been made, this will be set off against the costs of such performance.

None of this will affect the rights accruing to Ada Beta under the law or this agreement, including the right to compensation based on lost profits or damage ensuing from the rescission. Any claim that Ada Beta has or will obtain against the client on this account will be immediately due and payable.

If the assignment is rescinded or terminated, any quantity discounts given will no longer apply. Specifically, these discounts will have been based on the fact that Ada Beta would be given multiple assignments. In such cases, Ada Beta may separately charge the client for the discount given.

Applicability

These General Terms and Conditions will apply to any offers made by us, quotes, assignments, agreements and work which occurs or is exchanged between Ada Beta and the client. Ada Beta’s ‘services’ will include all data analysis, algorithm development, application of artificial intelligence or machine learning as well as designs (such as logos and house styles), advertising, marketing (for example, SEO and online advertising), copywriting, printed matter, web development, hosting and consultancy services.

Ada Beta will, as a rule, reject any purchasing or other terms and conditions which clients have. Deviations from these Terms and Conditions will only be possible in writing.

If, for whatever reason, a portion of these Terms and Conditions turns out to be invalid or is voided, all the other portions will remain in full force. The parties will consult with each other in that case to draw up an alternative provision. The point of departure will be that the purpose and effect of the portion no longer valid will be taken into account as much as possible.

Ada Beta may modify or supplement these General Terms and Conditions, or delete portions from them, at any desired time, without announcing this beforehand. Changes will be indicated in writing or by e-mail and will take effect one month after such notice is given.

If clients do not wish to accept the General Terms and Conditions announced in this manner, they may terminate the agreement, but only up to the date on which the new Terms and Conditions take effect. Notice of termination must be given by registered letter at Ada Beta’s business address.

Disputes and applicable law

Dutch law will apply to all of Ada Beta’s services and the agreements that it makes in this regard. Disputes must be presented to the competent court in Amsterdam. Dutch law will apply. Disputes must be presented to the competent court in Amsterdam.