General Terms & Conditions – Sales Optimization B.V.

Article 1 – General

  1. These are the General Terms and Conditions of Sales Optimization B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) with its corporate seat in Amsterdam, and its business address at Rhôneweg 20, 1043 AH Amsterdam (Netherlands), registered with the trade register of the Chamber of Commerce under number 88991229 (hereinafter referred to as: “SO”).
  2. SO provides services, including but not limited to prospecting, lead generation, and sales optimization (“Service”). Additionally, SO facilitates the recruitment of freelancers with the aim of establishing a direct relationship between a freelancer and CLIENT. These General Terms and Conditions apply to both freelancers and CLIENTS. For the sake of convenience, both freelancers and CLIENTS are hereinafter referred to as: “CLIENT”.

Article 2 – Applicability

  1. These General Terms and Conditions apply to all agreements concluded with SO (“Agreement”).
  2. Any deviations from and additions to these General Terms and Conditions shall only be valid if expressly and in writing agreed upon.
  3. If any provision forming part of these General Terms and Conditions and/or of the Agreement is or becomes void or voidable, the General Terms and Conditions and/or the Agreement shall remain in force to the extent possible and the relevant provision shall promptly be replaced by a provision agreed upon by the parties that as closely as possible achieves the purpose of the original provision.
  4. The general terms and conditions of CLIENT shall only apply to the agreements entered into with SO to the extent that they are not in conflict with the provisions of these General Terms and Conditions and the Agreement. In case of doubt as to whether such conflict exists, the General Terms and Conditions of SO shall prevail.

Article 3 – Agreements

  1. All agreements referred to in Article 2(1) will be accepted and performed exclusively by SO, excluding provisions of Sections 7:404 and 7:407(2) of the Dutch Civil Code. All those who are, have been, or will be working at or on behalf of SO will be bound in their capacity as private individuals. In the performance of professional services, all such persons act on account of and for the risk and benefit of SO.
  2. SO shall commence providing her services only subsequent to the signing of the Agreement and the sending of these General Terms and Conditions.

Article 4 – Recruitment services

  1. This Article is only applicable in the event that SO provides services by recruiting freelancers as mentioned in Article 1(2).
  2. SO will formalize the arrangements made with CLIENT and the freelancer in writing.
  3. CLIENT will owe a recruitment fee (“Recruitment Fee”), to be determined in the Agreement.
  4. SO is entitled to access the administration of CLIENT and to review the invoices issued by the respective freelancer.

Article 5 – Fees, payment and taxes

  1. CLIENT will owe a fee for alle services performed by SO under the Agreement (“Fee”). In the event that SO provides services by recruiting freelancers as mentioned in Article 1(2), CLIENT will owe the Recruitment Fee as mentioned in Article 4(3).
  2. SO offers three payment options:
    1. pay upfront with a single invoice;
    2. pay each period (4-weekly or monthly) with automated payment collection (SEPA or Credit Card); or
    3. pay per hour by invoice.

    Option c) applies exclusively to activities within the scope of consultancy and data collection.

  1. In case CLIENT has chosen an automated payment option (SEPA or Credit Card), SO will, in case CLIENT postpones the campaign, charge the outstanding balance as of the fourth period (with regard to the previous periods).
  2. Any fee (Fee or Recruitment Fee) under an Agreement does not include any taxes, and CLIENT shall pay all taxes applicable to payments between the parties under an Agreement.
  3. During an Agreement, SO will have the discretion to periodically adjust the agreed Fee within reasonable margins (e.g. in connection with an increase in the price levels or inflation). SO will notify if the change involves an increase other than as result of annual price indexation.
  4. Payment of invoices must be effected within 14 days of the invoice date without any deduction, suspension or set-off. If this term is exceeded, CLIENT will be in default by operation of law and will owe late payment interest equal to 1% per month (12.68% annually) or the maximum allowed under Dutch law, whichever is less. Moreover, if the payment term is exceeded, CLIENT will be invoiced for any efforts in connection with debt collection.
  5. In the event of an Agreement concluded with multiple CLIENTS, these CLIENTS, to the extent that the services are performed for the collective CLIENTS, are jointly liable for the payment of the invoice amount.

Article 6 – Data Protection and privacy

  1. CLIENT shall implement reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the disclosing party’s data.
  2. With regard to all personal data processed by SO in execution of an Agreement with CLIENT, CLIENT shall act as a data controller as referred to in the General Data Regulation. SO shall only process personal data on behalf of, and in accordance with the instructions of, CLIENT.
  3. CLIENT is responsible for ensuring that a legal basis for processing personal data is always available. Notwithstanding the provisions elsewhere in these General Terms and Conditions, any damage suffered by SO as a result of CLIENT’s failure to comply with this obligation, including fines imposed by supervisory authorities, compensation to be paid to data subjects, and reputational damage to SO, shall be borne by CLIENT.
  4. SO may collect, use and process CLIENT personal data only according to SO‘s Privacy Policy, available at Privacy Policy Sales Optimization B.V..
  5. SO may anonymously compile statistical information related to the performance of the service of SO for purposes of improving the Service, but only if such information does not identify the data as CLIENT’s or otherwise include CLIENT’s name.

Article 7 – Mutual Representations

  1. By entering into an Agreement, the parties mutually declare that they are authorized to do so.
  2. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party’s performance of its obligations under an Agreement.

Article 8 – SO’s Representations

  1. The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.
  2. SO shall perform its services solely on the basis of a best efforts obligation. SO explicitly does not guarantee any result of its efforts or services.
  3. To SO‘s Knowledge, no third party is infringing the Service.

Article 9 – CLIENT’s Use of Services

  1. CLIENT shall:
    1. abide by all local and international Laws and regulations applicable to its use of the Service, and;
    2. comply with all regulations, policies and procedures of networks connected to the Service.
  2. The use of the Service is restricted. CLIENT will not upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service, modify, disassemble, decompile or reverse engineer the Service, probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service, take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service, copy or reproduce the Service, access or use any other clients’ or their users’ data through the Service, maliciously reduce or impair the accessibility of the Service, use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.
  3. CLIENT shall indemnify SO against all reasonable costs and compensate SO for all damages arising from third-party claims resulting from CLIENT’s breach of Article 9(1) and Article 9(2).
  4. SO provides all its services on a fair use policy basis. Even if no maximum usage is attached to the Service, in practice a maximum of 20% above the average usage of SO’s other clients during a given period applies. If CLIENT exceeds this maximum, SO will inform CLIENT and SO is entitled to charge CLIENT additional costs for services that exceed the maximum.

Article 10 – Intellectual Property

  1. SO will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service, including SO‘s name, logos and trademarks reproduced through the Service.
  2. CLIENT agrees that it does not have, nor will it claim, any right, title or interest in the SO Services or any other SO product or service or software or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided including the content, images, videos, and any like artifacts provided by SO. CLIENT acknowledges that all information, data and reports received from SO as part of the Service are proprietary to and owned by SO. If instructed to do so by SO, CLIENT will immediately discontinue the use of any such reports or data, and any other material owned by SO.
  3. All intellectual property, content, and data provided by CLIENT will always remain the CLIENT’s intellectual property, content, and data.

Article 11 – Effect of Termination

  1. In the of termination of the agreement, the client shall:
    1. immediately pay to SO all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination;
    2. cease all use of the Service upon the effective date of the termination.
  2. CLIENT will have 30 days from the date of termination to retrieve any data that CLIENT wishes to keep.

Article 12 – Indemnification and liability

  1. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding brought by either a third party or an indemnified party, and arising out of the indemnifying party’s wilful misconduct or gross negligence.
  2. Before bringing a claim for indemnification, the indemnified party shall notify the indemnifying party of the indemnifiable proceeding, and deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.
  3. The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this Article.
  4. Should SO be liable to CLIENT, such liability shall at all times be limited to the amount to which the professional or business liability insurance taken out by SO gives claim or otherwise to the amount of the invoice amount, if any, to be increased by 15%.
  5. Any action for damages against employees, freelancers or directors of SO is excluded. This third-party clause has been stipulated for the benefit of the persons mentioned who will be able to rely on this provision at all times.
  6. SO’s liability shall at all times not extend to any form of consequential or indirect damage, including but not limited to trading loss, damage caused by delay (other than legal interest), damage due to decrease in value, loss of enjoyment, loss of profit, losses suffered, damage to (goods of) third parties and personal or immaterial damage.
  7. SO will not be liable in the event or to the extent that CLIENT can recoup damages or costs referred to in this Article either directly from a third party or from CLIENT’s own insurance company.
  8. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
  9. Unless expressly provided otherwise in these General Terms and Conditions, any claims and other rights of CLIENT against SO, regardless of their basis, shall expire no later than 1 (one) year after the moment CLIENT became or could reasonably have become aware of the existence of these claims and rights.

Article 13 – Warranty

  1. Services provided by SO and the results generated therefrom are provided on an “as is” and “as available” basis, without any warranty of any kind and without any guarantee of continuous or uninterrupted display or distribution of any SO assisted campaign. In the event of interruption of display or distribution of any campaign or SO assisted campaign, SO’s sole obligation will be to restore service as soon as practicable. Except as stated herein, SO disclaims all warranties of any kind, whether express or implied including, but not limited to, the implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. SO does not warrant or guarantee any specific conversion rates, response rates, or that any websites, or similar will be free of any bugs, errors, or problems; no advice or information, whether oral or written, obtained by client from SO or its representatives will create any warranty not expressly made herein.

Article – 14 Acquisition of Personnel of SO

  1. For the duration of the Agreement between parties and for a period of one (1) year after termination of the Agreement, irrespective of the reason for the termination, it is forbidden for the CLIENT and businesses affiliated to it to, directly or indirectly, paid or unpaid, offer a (employment) contract to personnel of SO who have been working for the CLIENT on behalf of SO, or to hire or contract personnel of SO for work in any other way other than on the basis of an agreement with SO, or to induce the personnel to terminate their contract with SO, without the prior written consent of SO. The term “personnel” means in this context any employee, freelancer and/or other type of worker carrying out work for the CLIENT on behalf of SO on the basis of an agreement between the CLIENT and SO.
  2. If CLIENT violates this provision, CLIENT forfeits to SO an immediately payable penalty of € 35,000.00 (thirty-five thousand Euros) each time this provision is violated, increased by a fine of € 500.00 (five hundred Euros) per day (part thereof included) for every day that the violation continues, without prejudice to the right of SO to claim full compensation for the losses suffered in addition to collecting the penalties.
  3. In the event of recruiting freelancers for CLIENT, as mentioned in Article 1(2), Article 14(1) and Article 14(2) shall equally apply, with the understanding that the term “personnel” shall be construed to include the recruited freelancer. Furthermore, Article 14(1) and Article 14(2) shall equally apply in the event that no Agreement is reached between CLIENT and SO regarding the recruitment of a specific freelancer, but the CLIENT or a business affiliated to it, directly or indirectly, paid or unpaid, offers a (employment) contract to this specific freelancer within one (1) year after the recruitment services of SO.

Article 15 – Complaints

  1. Complaints from CLIENT regarding the services provided by SO must be communicated to SO no later than 30 (thirty) days after the completion of the services, under penalty of forfeiture.
  2. Complaints shall never suspend CLIENT’s obligation to make payment.

Article 16 – Miscellaneous

  1. SO may amend the terms and conditions of an Agreement at any time by reasonable notice, including but not limited to by sending revised terms and conditions to CLIENT.
  2. Neither party may assign an Agreement or any of their rights or obligations under an Agreement without the other party’s written consent.
  3. The parties shall give all notices and communications between the parties in writing by electronic mail to the party’s address specified in the Agreement, or to the address that a party has notified to be that party’s address for the purposes of this Article. A notice given under an Agreement will be effective on the other party’s receipt of it, or if mailed, the earlier of the other party’s receipt of it and the fifth business day after mailing it.
  4. If any part of an Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
  5. A party’s failure or neglect to enforce any of its rights under an Agreement will not be deemed to be a waiver of that or any other of its rights.
  6. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.

Article 17 – Governing law

  1. Any Agreement between SO and CLIENT shall be governed by and construed, performed and enforced in accordance with the laws of the Netherlands.
  2. The relationship between the client and SO and any claims arising therefrom, will be subject to the laws of the Netherlands exclusively without prejudice to the legal grounds of complaints or litigation. Any legal disputes will be adjudicated exclusively by the competent court in Amsterdam, the Netherlands, unless SO chooses otherwise.