TERMS & CONDITIONS – Edition 08-2022

In case of discrepancies our English Terms and Conditions prevail.

General Terms and Conditions apply to MediaPerformance a brand of Ecomresult BV (72946911) located at Professor J.H. Bavincklaan 2, 1183 AT Amstelveen, The Netherlands, hereinafter referred to as: MP.

  1. Definition of Terms
    1. “Agency”: refers to MediaPerformance providing Services to the Client.
    2. “Client”: refers to the individual or legal entity engaging MediaPerformance for Services.
    3. “Parties”: refers to the Agency and the Client together.
    4. “Services”: refers to the e-commerce, marketing, development and consultancy Services provided by the Agency.
    5. “Disclaimer”: refers to the disclaimer paragraph below that is applicable to all our activities.
    6. “Copyright”: refers to the generic copyright paragraph below, which is applicable to all our activities.
  2. Service Agreement
    1. By engaging the Agency Services, the Client agrees to be bound by these terms and conditions.
    2. Unless otherwise agreed upon in writing between the parties, the following articles apply to any offer, commission, or agreement with the Agency.
    3. The Agency reserves the right to modify these terms and conditions at any time without notice to the Client. Such changes will also apply to previously closed agreements. If the Client does not agree with the changed terms and conditions, the Client has the right to terminate the agreement but must do so in writing and within 14 days after this modification.
  3. Offer
    1. All quotes and estimates provided by the Agency are non-binding.
    2. The Agency is only bound to a quote if it is accepted in writing by the Client within 14 days.
  4. Prices
    1. All quoted prices are exclusive of VAT.
    2. Additional requests from the Client that were not previously agreed upon will result in additional work, for which the Agency will be remunerated.
    3. In case of an agreed lump sum payment the Agency reserves the right to re-evaluate the lump sum, in which case these Services may be postponed by the Agency until settlement of such evaluation. This will only be done in case the quoted time for the defined scope of work would need to be exceeded with more than 20%.
  5. Acceptance of order
    1. An agreement is established on the day that the following conditions are met: An oral or written confirmation of the order is received by the Agency.
  6. Payment
    1. The Client shall pay the Agency for Services in accordance with the payment schedule agreed upon between the Parties.
    2. In case no payment schedule is agreed, 100% payment is due at time of placing the order with a payment period of 14 days.
    3. The Agency reserves the right to suspend or terminate Services immediately if the Client fails to make timely payment.
  7. Agreement
    1. The Agency will carry out the agreement to the best of its ability and judgment. The Agency has the right to have certain tasks carried out by third parties.
    2. The Client ensures that all data that the Agency indicates necessary is provided in a timely fashion.
    3. The Agency is not liable for any damages of any nature caused by the Agency relying on incorrect or incomplete data provided by the Client.
  8. Delivery
    1. The delivery of the Services will start as soon as possible after the acceptance of the order.
    2. Intermediate information my be shared by the Agency (unilaterally decided by the Agency).
    3. All agreed delivery times are indicative. Delivery of the Services may be postponed by the Agency up to 45 days without mutual agreement. In case a longer delay is required, parties will discuss a mutually acceptable solution. Delays do not give the Client the right to suspend or offset payments. In case of force majeure on part of the Agency, the term will be extended by the duration of that force majeure.
  9. Defects/ complaints
    1. The Client has 14 days after delivery to report clearly defined defects in the Services delivered. If the complaint is valid, the Agency will try to rectify the defects within 60 days. If no defects are reported to the Agency within these 14 days, any possibility of complaints shall expire. Incorrect information provided by the Client that leads to defects in the delivered Services is not considered to be “defects.”
    2. Complaints do not give the Client the right to suspend or offset payments.
  10. For all Development services:
    1. The Agency is not liable for non-working functionality caused by, for example, incorrect settings at the Client’s hosting provider, while these functionalities function properly on the test domain.
    2. Delivery of a website will take place as soon as possible after the completion of the development of the website.
    3. Any adjustments made by the Client or on Client request by third parties, on the website, such as technical changes and or updates, can impact the proper functioning of the website and makes the Client fully responsible for any and all consequences.
    4. The Agency may use a variety of third party software to enhance the functionality of websites/ webshops/ portals etc, such as open source software like WordPress, WooCommerce, Elementor, plugins, and other (commercial) and/ or SAAS software. It is important to note that the Agency cannot be held accountable for the proper functioning of such software. These software are independently developed and maintained by third parties, and therefore, any issues or malfunctions are out of the Agency’s control. It is important to understand that the Agency can make an effort to ensure that the software is properly integrated and configured (depending on the Services agreement), but ultimately, the Agency cannot be held responsible for any issues that may arise.
  11. Notice period for Client
    1. All services are considered as recurring, unless agreed otherwise in writing. For such recurring services;
      1. The Agency shall invoice the Client on a periodical basis, and payment is due upon receipt of invoice.
        The notice period for termination of a recurring agreement is 6 months for Client.
      2. Non recurring services can not be terminated by Client after Clients’ after acceptance of the offer.
  12. Notice period for the Agency
    The Agency reserves the right to suspend or terminate Services with a notice period of 1 month.
  13. Late Payment
    1. Payment for the amounts invoiced by the Agency must be made without any deduction or offset, within 14 days after the invoice date. In case of non-payment within the aforementioned term, the Client shall be in default and will be liable for any and all debt collection costs (both extrajudicial as well as judicial costs), as well as interest payments per month, from the due date until full payment. Minimum costs:
      1. If the Client is a consumer, extrajudicial collection costs will be charged according to “the Decision on Compensation for Extrajudicial Collection Costs, as mentioned in section 4 of Article 6:96 of the Dutch Civil Code.
      2. If the Client is a legal entity or a natural person, a claim will be made for extrajudicial collection costs of 8% of the amount due per month (with a minimum amount of €250).
    2. If the Client does not fulfill their payment obligations to the Agency within 7 days after the first reminder, the Agency has the right to terminate any products/ services. The Agency may also cancel the Client’s domain names, website, assets developed by Agency and in some cases transfer them under Agency’s name, provided a warning has been issued of such nature.
  14. Intellectual Property
    1. All intellectual property rights, including but not limited to copyrights, concepts, designs, trademarks, and trade secrets, in any materials or work product created by the Agency in the course of providing Services shall be owned by the Agency.
    2. The Client shall not use any such intellectual property for any purpose other than as expressly authorized by the Agency in writing. The Agency may charge a penalty and or fee, such to the unilateral decision of the Agency in case of any violations.
  15. Confidentiality
    1. The Client shall keep confidential all non-public information and materials provided by the Agency, and shall not disclose such information to any third party without the express written consent of the Agency.
  16. Representations and Warranties
    1. The Agency represents and warrants that it has the right and authority to enter into this agreement and to perform the Services
    2. The Client represents and warrants that it has the right and authority to engage the Agency for Services and to use any materials or information provided to the Agency in the course of providing Services.
  17. (Limitation of) Liability
    1. The Agency shall not be liable for any indirect, special, incidental, or consequential damages arising out of or in connection with the Services or non delivery of such Services or faulty delivery of such Services.
    2. The Agency’s total liability for any and all damages arising out of or in connection with the Services shall in total be limited to the amount of 50% of the fees paid in the last 6 months by the Client to the Agency for Services. Agency’s liability can never exceed this amount.
    3. In case The Client provides designs, content, images, logo’s etc. the Client warrants that all rights associated with such element are owned by the Client and may be used. The Client will hold the Agency harmless, in full in case of any type of infringement. The Client indemnifies the Agency against any and all claims in this regard.
  18. Governing Law
    1. These terms and conditions shall be governed by and construed in accordance with the laws of the The Netherlands.
  19. Severability clause
    1. If a provision of any Agreement, Terms & Conditions, Disclaimer etc is held invalid under any applicable law, such invalidity will not affect any other provision that can be given effect without the invalid provision.  Further, all articles will be deemed enforceable to the fullest extent permissible under Dutch law, and, when necessary, the court is requested to reform any and all articles to give them such effect.

The following Copy Rights and Disclaimers are part of the terms and conditions:

COPY RIGHTS: All rights (including but not limited to; copyrights, intellectual-rights and usage-rights) relating to proposals for strategy and research, analyses of results, reporting templates/ formats and reports developed by or on behalf of MediaPerformance as well as any and all software developed by MediaPerformance, shall be vested in MediaPerformance, whereby we agree to transfer to the client the rights of non-exclusive usage and/or storage in a by the client owned (computerized) data base within the organization of the client. To prevent misuse of information, no part of any document concerned may be made public or shared with third parties in any way or in any form without the prior written consent of MediaPerformance. Distribution within companies and/or institutions affiliated to or associated with the client is deemed to be included in this publication restriction.

DISCLAIMER: All services and responsibilities taken by MediaPerformance are based on consultancy services and may reflect personal opinions. Clients remain solely responsible on how to act on recommendations provided by MediaPerformance and actions taken by MediaPerformance. Typing errors may have occurred. MediaPerformance does not accept any liability resulting from using our recommendations, (conceptual) contracts, concepts, thinking models, appendixes, analysis and/ or any other information issued by MediaPerformance. MediaPerformance does not make any warranty as to the completeness and correctness of such content. MediaPerformance does not provide any kind of insurance. MediaPerformance does not accept any liability for actions taken on behalf of its Clients. MediaPerformance conceptual contracts have not been checked for specific local legislation and MediaPerformance does not pertain to having legal expertise and knowhow. Offers made by (media, PR, creative, etc) agencies and/ or Vendors and/ or software suppliers and/or plug-ins and/ or internet service providers and/or any external supplier do not reflect an offer from MediaPerformance. By proceeding with any further actions Client confirms to agree with all stated conditions and Client gives-up all rights to hold MediaPerformance liable accordingly.