Danatica Terms and Conditions
Date of last modification: 15-12-2021
Article 1. Definitions.
In the General Conditions, the following terms are used in the following sense, unless explicitly stated otherwise:
Contractor or Danatica: the provider of the service;
Customer: the party with whom Danatica has made an agreement or to whom Danatica has provided an offer;
Agreement: the agreement between Customer and Danatica to which these General Conditions apply.
Article 2. Applicability of these terms and conditions
These conditions apply to every offer, quotation and every agreement between Danatica and a Customer, to which Danatica has declared these conditions applicable, insofar as these conditions have not been expressly deviated from by the parties.
Any deviations from the provisions of these General Conditions shall only be valid if expressly agreed in writing.
Any purchase and/or other conditions of the Customer shall not apply to the services of Danatica unless Danatica has expressly accepted them in advance in writing. Without such prior written acceptance, these General Terms and Conditions shall apply.
If one or more provisions of these General Terms and Conditions are void or voided, the remaining provisions shall remain in full force and effect. The Contractor and the Customer will then consult to agree on new provisions to replace the null and void or annullable provisions, taking into account the purpose and intent of the original provision as much as possible.
Article 3. Offer / Agreement
All offers and/or quotations by Danatica are entirely without obligation and are based entirely on the information provided by Customer for that purpose, whereby Customer warrants that essential information has been provided for the purpose of setting up the order. An agreement between Danatica and Customer is formed when Customer has signed an offer made by Danatica for approval or has indicated by e-mail that it agrees with an offer made by Danatica.
An agreement between Danatica and Customer also comes into being because Danatica has started to carry out or has carried out the assignment given by Customer. An agreement also comes into being when the Customer has paid the first invoice from Danatica. In the aforementioned cases, the content of the agreement is determined by the quotation issued by Danatica.
Amendments to an established agreement are only effective if agreed upon in writing by Customer and Danatica.
The agreement between Customer and Contractor is entered into for a minimum of six months. After the expiry of this six-month period, the agreement is for an indefinite period, unless the nature of the agreement dictates otherwise or if the Client and the Contractor explicitly agree otherwise in writing.
Article 4. Execution of the Agreement
Danatica shall execute the Agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. The obligation of Danatica is an effort, not a result obligation.
If and to the extent required for proper execution of the Agreement, Danatica has the right to have certain activities performed by third parties. However, Customer shall not give any assignments, orders or instructions to the third parties engaged by Danatica without first consulting Danatica about this.
During the execution of the order, regular consultation with Customer will take place about the state of affairs and the way the order is being carried out. From Danatica, 1 person will be designated as contact person for the Customer. The Customer is entitled to replace this contact person by one or more other persons with the same qualifications.
The Customer shall ensure that all information which Danatica indicates is necessary or which the Customer should reasonably understand is necessary for the execution of the agreement shall be provided in a timely manner to Danatica. If the information required for the execution of the Agreement has not been provided to Danatica in a timely manner, Danatica has the right to suspend the execution of the Agreement and/or charge the Customer for the additional costs resulting from the delay according to the usual rates.
Danatica is not liable for damages of any kind arising because Danatica has relied on incorrect and/or incomplete information provided by Customer.
If it is agreed that the Agreement will be executed in phases, Danatica is entitled to suspend the execution of the parts belonging to a next phase until Customer has approved in writing the results of the preceding phase.
Article 5. Term of Execution and Term of Delivery
If within the term of the Agreement a period has been agreed for the completion of certain work or the provision of services, this shall not be a deadline, unless expressly agreed otherwise in writing. If the term for execution or delivery is exceeded, Customer must therefore give Danatica written notice of default.
The performance or delivery period shall commence as soon as the agreement has been made and all information necessary for the commencement of the performance of the work or delivery of the services is in the possession of Danatica. Customer is obligated to provide Danatica with
all information and choice provisions, which are necessary for the progress of the work, in a timely manner.
If no time of commencement of the work has been agreed, Danatica shall be free to determine the time of commencement at its own discretion. Customer warrants that, at its chosen time of commencement, Danatica will have access to the place where the agreed work is to be performed and/or the data necessary to perform the work.
If Customer does not provide Danatica with access or data or otherwise does not allow Danatica to perform the agreed upon work, Customer is in default by operation of law and Customer is obligated to reimburse Danatica for all damages incurred by Danatica as a result of its inability
to perform the agreed upon work, including in any event but not limited to the costs of third parties engaged by Danatica.
Article 6. Additional Work
If, at the request or with the prior consent of Customer, Danatica has performed work or services that are outside the content or scope of the agreed services, such work or services shall be compensated by Customer in accordance with Danatica’s usual rates.
Customer accepts that activities or services as referred to in paragraph 1 of this article may affect the agreed or expected time of completion of the services, and the mutual responsibilities of Customer and Danatica. The fact that (the demand for) additional work arises during the execution of the Agreement shall never be a ground for Customer to dissolve or terminate the Agreement.
To the extent that a fixed price has been agreed for the services, Danatica will, if requested, inform Customer in advance in writing about the financial consequences of such additional work or services.
Article 7. Cancellation or modification of the Agreement
If Customer cancels the agreement concluded with Danatica, Customer is due to pay to Danatica a penalty in the amount of 30% of the agreed price, without prejudice to Danatica’s right to compensation for all damages suffered by Danatica as a result of the cancellation, such as costs incurred by Danatica and loss of profits to the extent that these exceed the 30% mentioned above.
If during the execution of the Agreement it becomes apparent that for a proper execution it is necessary to change or supplement the work to be performed by Danatica, the parties shall in a timely manner and in mutual consultation adjust the Agreement accordingly. If the parties agree that the Agreement will be changed or supplemented, this may affect the time of completion of the execution. Danatica will inform Customer of this as soon as possible. If the change or supplement to the Agreement has financial and/or qualitative consequences, Danatica will inform Customer thereof. If a fixed fee has been agreed upon, Danatica will indicate to what extent the amendment or supplement to the Agreement will result in an increase of this fee.
Article 8. Completion, approval and complaints
Customer is required to check the work performed by Danatica immediately after completion. The work performed by Danatica shall be deemed to have been completed in accordance with the Agreement, if and to the extent that Customer has not complained to Danatica within eight days of the performance of this work.
Complaints by Customer about the work performed shall not suspend Customer’s payment obligation.
Customer must enable Danatica to investigate the complaint and in this context provide Danatica with all information relevant to the complaint. If it is necessary for the investigation of the complaint for Danatica to come and investigate the complaint on site, the costs associated
with this are at the expense and risk of the Customer, unless the complaint turns out to be well-founded.
Article 9. Termination and dissolution
The agreement between Customer and Contractor is entered into for a minimum of six months. Premature termination during the first six months is not possible. After expiry of the six-month period, each of the parties may terminate this long-term agreement at the end of a calendar month, subject to one month’s notice.
Without prejudice to Danatica’s right to claim full compensation, the Contractor shall be entitled to suspend the performance of its obligations and/or terminate the Agreement if: Customer does not comply or does not fully comply with the obligations under the agreement; Circumstances brought to Danatica’s knowledge after the conclusion of the agreement give Danatica good reason to fear that Customer will not meet its obligations; At the conclusion of the agreement Danatica has asked Customer to provide security for the performance and this security is not provided or is insufficient;
Customer applies for a suspension of payment, is declared bankrupt or transfers parts of its business to third parties, liquidates or shuts down.
Furthermore, Danatica is authorized to dissolve the Agreement if circumstances arise of such a nature that unaltered performance of the Agreement is impossible or can no longer be demanded of Danatica in accordance with the requirements of reasonableness and fairness. If the Agreement is dissolved, all claims of Danatica shall be immediately due and payable. In the event of a dissolution, the Contractor shall remain entitled to payment by the Client of the invoices for the work performed up to the moment of dissolution.
Article 10. Management of Google Ads accounts and other advertising platforms.
If Danatica will perform advertising campaigns for Customer on advertising platforms (including, but not limited to, Google Ads, Facebook, LinkedIn, Instagram and Remarketing), Danatica will always perform its work/services from Customer’s account or Danatica’s account linked to it. For the purpose of the ad campaign and/or management, Customer must first set up its own Google Ads account (or account of another ad platform). An advertising campaign or account management cannot and will not take place until an advertising account has been set up. Parties will agree in advance on a start date for the start of the ad campaign and/or management. The period for the campaign and/or management will commence on the first day on which Danatica has performed the initial work.
If Customer has not or not correctly set up the necessary accounts, as a result of which the advertising campaign and/or management cannot be started, this does not discharge Customer from its payment obligation.
Customer must ensure payment of the invoices from Google (or other advertising platforms) each time. In no event shall Danatica advance them or otherwise make payments to third parties for or on behalf of Customer.
Customer shall ensure the necessary permission for, among other things, the placement of tracking cookies and advertising cookies.
If Danatica is not allowed to advertise on the basis of cookies, Customer must inform Danatica in writing in advance.
Article 11. Intellectual Property
Danatica expressly reserves all rights of intellectual property and any powers resulting from them. Designs, drawings, sketches, plans, budgets, estimates, reports, quotations and other documents made by Danatica within the scope of the Agreement remain its exclusive property, regardless of whether they have been made available to Customer or to third parties. Danatica has, to the exclusion of all others, the right to reproduce and/or publish and repeat its designs, drawings, sketches, plans, budgets, estimates, reports, quotations and other documents, irrespective of whether they have been made available to Customer or to third parties and irrespective of whether they have been prepared together with Customer. To the extent necessary, Customer hereby assigns any intellectual property rights to jointly developed documents, such as reports, advice, quotations, sketches, drawings, software, etc., to Danatica for no consideration.
All documents provided by Danatica, such as reports, advice, tenders, sketches, drawings, software etc., are exclusively intended to be used by Customer and may not be reproduced, disclosed or brought to the knowledge of third parties by Customer without prior consent of Danatica. Customer is not permitted to (have) perform or (have) repeat the performance of an offer of Danatica, or any part thereof, by third parties without the express written consent of Danatica.
Customer who acts in violation of the provisions of this article shall owe Danatica an immediately payable penalty of €5,000.00 for each violation and shall also owe Danatica, as liquidated damages, an amount equal to 50% of the amount of the quotation made by Danatica with the offer, which amount Customer shall pay to Danatica at its first request. This payment does not transfer ownership and possible intellectual property rights to Customer. These will therefore remain with Danatica.
Article 12. Fee
The parties may agree to a fixed fee when the Agreement is concluded. The fixed fee is exclusive of VAT and other government levies, as well as any expenses to be incurred in the context of the Agreement, office expenses, travel and accommodation expenses, third-party expenses, consultants, postage costs and the like. These costs will always be charged to the Customer separately and, as far as possible, specified.
If no fixed fee is agreed, the fee will be determined on the basis of the number of hours worked. The fee will be calculated according to Danatica’s usual hourly rates, applicable to the period in which the work is performed, unless a different hourly rate has been agreed upon. The hours worked by Danatica will be charged on a monthly basis.
Danatica is entitled to adjust the agreed rate when renewing an assignment or as of January 1 of any year.
Article 13. Payment
Invoices sent by Danatica must be paid by the Customer within 14 days after the invoice date by transferring the amount due to the bank account number specified on the invoice in the name of Danatica.
After the expiry of 14 days from the invoice date, Customer is legally in default. From the moment Customer is in default, Danatica has the right to suspend its obligations under the Agreement.
From the moment that Customer is in default, it shall owe interest on the amount due at a rate of 1.5% per month, or 18% per year, unless the statutory commercial interest rate is higher, in which case the statutory commercial interest rate shall apply.
Payments made by the Client shall first be applied to settle all costs and interest owed and then to settle due and payable invoices which have been outstanding the longest, even if the Client indicates that the settlement relates to a later invoice.
Customer is not entitled to set off claims of Customer against any counterclaims Customer may have against Danatica. This also applies if Customer has requested (temporary) suspension of payment or is declared bankrupt.
Article 14. Collection costs
If Customer is in default, then all reasonable costs for obtaining extrajudicial satisfaction are at the expense of Customer.
All extrajudicial collection costs incurred by Danatica in order to achieve compliance with Customer’s obligations are for the account of Customer. These costs are calculated according to the following collection rates, advised by the Netherlands Bar Association, with a minimum of € 40,00 per unpaid invoice:
15% of the amount of the principal sum of the claim over the first € 2.500,00 of the claim; 10% of the amount of the principal sum of the claim over the next € 2,500.00 of the claim; 5% of the amount of the principal sum of the claim over the next € 5.000,00 of the claim; 1% of the amount of the principal sum of the claim over the next € 190.000,00 of the claim; 0,5% over the amount of the principal sum with a maximum of € 6.775,00. The Client shall also owe the statutory commercial interest on the collection costs incurred.
Article 15. Liability
If certain parts of the Agreement are performed by third parties, Danatica is not liable for these parts and for the actions of these third parties.
Danatica is not liable for any damages of any nature whatsoever, which the Customer claims to have suffered as a result of or in connection with any agreement entered into with Danatica, except in the case of intent or gross negligence of Danatica.
If, despite the provisions in paragraph 2 above, Danatica is liable, only the damages for which Danatica is insured or should reasonably have been insured are eligible for compensation. If, at the time of entering into the Agreement, it is not possible for Danatica to take out an insurance policy as referred to in paragraph 3, or not at reasonable conditions, or not at reasonable conditions to renew it thereafter, compensation for damages is limited to the amount charged by Danatica for the Agreement (excluding VAT).
If in any case the insurer does not pay out or the damage is not covered by the insurance, Danatica’s liability is limited to a maximum of the amount of the fee owed by the Customer to Danatica for the period in which the damage arose.
Notwithstanding the second paragraph, for assignments with a duration of more than six months, liability shall be further limited to the fees owed over the last six months. Danatica can only be liable for direct damage. Direct damage is understood to mean: – the reasonable costs incurred in determining the cause and extent of the direct damage; – the reasonable costs incurred to have the defective performance of Danatica conform to the agreement, unless these costs cannot be attributed to Danatica;
– the reasonable costs incurred to prevent or limit the damage, to the extent that Customer demonstrates that these costs have actually resulted in limiting the direct damage. Danatica is never liable for indirect damages, including consequential damages, lost profits, lost savings and damage due to business interruption.
Article 16. Force Majeure
Force majeure means circumstances that prevent the performance of the Agreement and which cannot be attributed to Danatica. These circumstances (if and insofar as these circumstances make the performance impossible or unreasonably difficult) include but are not limited to: strikes at the Contractor’s company, lack of personnel at the Contractor’s company, lack of timely/perfect supply by third parties from whom the Contractor obtains goods and/or services, measures by the government and/or government agencies, failure in the power supply and/or communication connections and/or (computer) equipment of the Contractor and/or third parties whose services the Contractor uses.
Danatica also has the right to invoke force majeure if the circumstance preventing (further) performance arises after Danatica should have performed its obligation.
During the period of force majeure, the obligations of Danatica shall be suspended. If the period in which due to force majeure fulfillment of the obligations by Danatica is not possible lasts longer than 2 months, both parties are authorized to dissolve the agreement without any obligation for compensation in that case.
If Danatica has already partially fulfilled its obligations when the force majeure occurs, or can only partially fulfil its obligations, it is entitled to separately invoice the part already performed or to be performed, and Customer is obliged to pay this invoice as if it were a separate order.
Article 17. Privacy
Danatica considers it of great importance to treat the privacy of its Client with care. For the way Danatica does that, please refer to the privacy statement on the website of Danatica. Danatica processes personal data in a careful and proper manner and in compliance with the applicable laws and regulations on privacy and data protection, including (but not limited to) the General Data Protection Regulation (GDPR). To the extent that Customer collects and provides personal data to Danatica, Customer warrants to Danatica that such collection and provision is lawful.
Danatica shall enter into a separate processing agreement with Customer where necessary.
Article 18. Dispute Resolution
Notwithstanding the legal rules for the jurisdiction of the civil court, any dispute between Customer and Danatica shall be settled by the District Court Zeeland West Brabant.
Article 19. Applicable law
All agreements between Danatica and Customer are exclusively governed by Dutch law.
Article 20. Amendment
Changes in the agreement and deviations from these General Conditions shall only be effective if agreed upon in writing between Danatica and Customer.
Danatica reserves the right to change the contents of these terms and conditions at any time. Amended General Terms and Conditions shall not become applicable until after these amendments have been made known to Customer and Customer has not objected to them in writing within five days, stating reasons.