In these terms and conditions the following words shall have the meanings given in this clause:
- POV Agency: means POV Agency, registry code 78515041, address Prins Hendrikkade 1F, 1012TK Amsterdam, Netherlands, a company that provides influencer marketing services and social media account management and strategy.
- Client: The natural person or legal entity that has concluded, or is going to conclude, an Agreement with POV Agency
- Agreement: The agreement and/or any proposals and/or quotations between POV Agency and the Client concerning the specific provisions of the Service.
- Conditions: These general terms and conditions of POV Agency including all applicable Annexes.
- Contract: Contract between the User, the Customer and POV Agency which will be considered concluded according to the terms listed in these Terms and Conditions.
- IP-Rights: any existing or future intellectual and industrial property rights anywhere in the world including any copyright and related right, design right, design, service mark, and any other rights of a similar nature. For the avoidance of doubt, Intellectual Property includes photos, videos as well as audio works.
- Parties: POV Agency and the Client.
- Personal Data: any information relating to an identified or identifiable natural person (“data subject”); within the meaning of Section 4 paragraph 1 of the General Data Protection Regulation (GDPR) 2016/679/EU (“GDPR”).
- Service: The Services to be provided to the Client by POV Agency pursuant to the Agreement, including, if applicable, results of these Services.
2.1 These Conditions apply to and form an integral part of all offers and quotations of POV Agency, Agreements and any other legal acts related thereto between POV Agency and the Client and/or its legal successor. The specific Annexes also apply as agreed between POV Agency and Client. If this general part of these Conditions is contrary to or incompatible with any other specific provision as included in the Annex(es) agreed between POV Agency and the Client, the specific provisions in the Annex(es) concerned prevail.
2.2 If these Conditions state that an act must be carried out in writing, this is deemed to refer to email as well. Electronic communication between the Parties is deemed to have been received on the day it was sent, unless proof to the contrary is furnished.
2.3 Any variations on these Conditions are only valid if they have been agreed explicitly in writing by POV Agency and the Client, and they only apply to the specific Agreement for which they were agreed.
2.4 The Client’s generally applied purchase- and/or other conditions do not apply to any legal relationship between the Parties.
2.5 Once these Conditions have been applied to a legal relationship between POV Agency and the Client, the Client is deemed to have agreed in advance to the applicability of these Conditions to any Agreements concluded or to be concluded thereafter.
2.6 If and insofar as any provision in these Conditions is declared to be nonbinding, the other provisions of these Conditions remain in full force. In that case the Parties shall replace the non-binding provision with a provision which differs as little as possible from the non-binding provision in terms of both content and scope.
2.7 In the event of a conflict between provisions in an Agreement and these Conditions, the provisions in the Agreement prevail. In the event of a conflict between these Conditions and a specific Annex, the provisions in the specific Annex(es) prevail.
2.8 POV Agency is authorised to unilaterally amend these Conditions. The Client shall be informed to that effect in writing and POV Agency shall make the new version of the Conditions available to the Client.
2.9 The applicability of Sections 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is hereby excluded.
3. Quotations and formation of the agreement
3.1 Quotations and other offers by POV Agency are given without obligation and must be regarded as an invitation to enter into an Agreement.
3.2 The Client guarantees that the details disclosed by, or on behalf of it, to POV Agency, on which POV Agency has based its offer, are correct and complete. If those details should prove not to be correct or complete, POV Agency is entitled to modify its offer.
3.3 An Agreement is concluded by written confirmation from the Client of an unmodified valid quotation and/or offer made by POV Agency.
3.4 Orders placed by the Client are irrevocable.
3.5 POV Agency is authorized at all times to terminate the negotiations with the Client at any time without stating reasons and without being liable for any loss and/or damages caused as a result, and without being obligated to continue the negotiations.
4. Performance of the agreement and delivery
4.1 POV Agency shall perform the Agreement to the best of its knowledge and ability. The obligations of POV Agency on the basis of the Agreement should be interpreted as a duty to perform.
4.2 Parties shall determine the delivery term and delivery dates as well as the place and manner in which the Services shall be delivered and/or provided in the Agreement. The duration of an assignment depends on various factors and circumstances, such as the quality of the data and information disclosed by the Client and the cooperation of the Client and relevant third parties. The delivery terms are therefore not to be interpreted as strict deadlines. In the event that a delivery term or other term is exceeded, or is likely to be exceeded, Parties shall consult with each other as soon as possible in order to take suitable measures. Any delay, for whatever reason, with respect to agreed delivery times does not give any entitlement of the Client to receive loss and/or damages or any other form of compensation from POV Agency.
4.3 If it has been agreed that the Agreement shall be performed in phases, POV Agency is authorised to postpone the commencement of the Services that form part of a subsequent phase until the Client has approved the results of the prior phase in writing.
4.4 POV Agency is not obligated to follow any instructions by the Client and/or any third party that alter or add to the content or scope of the agreed Services. However, if such instructions are followed, the activities concerned shall be paid in accordance with POV Agency’s usual rates and POV Agency shall notify the Client of this situation.
4.5 POV Agency is entitled to engage third parties for the performance of the Agreement.
4.6 Services are deemed to have been accepted if the Client has not substantiated in writing and in detail, within five (5) working days after delivery of the Services concerned, the reason(s) why the Services have not been accepted. If the Services are not accepted and the Client can sufficiently demonstrate that the Services provided do not fulfil the Agreement, POV Agency shall replace or adapt the Services within a reasonable deadline.
5. Prices and terms of payment
5.1 All prices are exclusive of turnover tax (VAT) and other government levies. The prices are based on performance during normal working hours.
5.2 Works not included in the quotation by POV Agency are not covered by the Agreement and may lead to an overall price increase.
5.3 Unless explicitly agreed otherwise in writing, price indications, estimates, budgets and/or cost estimates issued by POV Agency are merely for information purposes, and no rights or expectations may be derived from them. Only if the Parties have agreed so, POV Agency is obligated to inform the Client when a cost estimate or estimate will be exceeded.
5.4 All prices indicated in writing or electronically by POV Agency are subject to programming and typing errors or spelling mistakes. POV Agency is not bound by such errors and/or spelling mistakes.
5.5 In the absence of a specific payment term in the Agreement, the Client pays within fourteen (14) calendar days after the invoice date. All payments will be made without any deduction, suspension or set off.
5.6 Payments made by the Client shall first be used to pay all due interest and costs, and then the payable invoices which have been outstanding the longest, even when the Client states that the payment relates to a later invoice.
5.7 If the Client does not pay the amounts due on time, the Client is in default and automatically owes the statutory commercial interest on – and on top of – the outstanding amount, without any demand or notice of default being required. If after a reminder by POV Agency the Client still fails to fulfil its payment obligations, POV Agency may refer the debt for collection to a third party (e.g. a bailiff) in which case the Client is obligated to pay, all judicial and extrajudicial costs, including costs of external experts in addition to the total outstanding amount.
5.8 POV Agency is entitled to retain Services that are still in its possession (retentierecht) if the Client does not comply with its payment obligations, regardless of whether the arrears are related to the Services that are being retained by POV Agency.
5.9 Any comments or complaints regarding invoices, bills and fee statements must be made in writing by the Client to POV Agency within fourteen (14) calendar days after receipt of such invoice, bill or fee statement, in the absence of which the invoice, bill or fee statement is deemed to have been accepted by the Client. Any filed comments or complaints do not suspend the payment obligations of the Client.
5.10 POV Agency is entitled to send the Client interim invoices and/or to invoice on the basis of advance payments, to offset or to require any form of security by the Client.
5.11 The Client agrees to electronic invoicing by POV Agency.
5.12 In the event that the financial position of the Client changes during the performance of the Agreement, POV Agency is entitled to quit any further execution of the Agreement wholly or partially or to change the terms of Payment.
6. Changes to assignment and/or extra work
6.1 The Client accepts that the time schedule of the Agreement may be affected when the scope of the Agreement is expanded and/or altered while the Agreement is being performed by POV Agency. If such alteration affects the agreed upon remuneration, POV Agency reports this as quickly as possible to the Client.
6.2 When any supplemental requests or wishes of the Client result in an alteration of the Agreement following which POV Agency must carry out additional works), such additional works will be charged to the Client based on actual costs at the usual rates that apply at that time, unless explicitly agreed otherwise in writing.
7. Obligations of the clients
7.1 The Client ensures that all data and/or information that POV Agency has indicated to be necessary, or which the Client reasonably ought to understand to be necessary for the performance of the Agreement by POV Agency, including information about legislation or regulations to be complied with by POV Agency that applies specifically to the Client’s field of work, are timely disclosed to POV Agency by the Client and the Client fully cooperates with POV Agency insofar as the latter requires. Quotations and offers issued by POV Agency as well as the Agreement concluded afterwards are based on the information disclosed by the Client. POV Agency shall not be liable for any loss and/or damages which arise due to it when work is based on inaccurate and/or incomplete details and information provided by the Client.
7.2 If data needed for the performance of the Agreement is not timely disclosed to POV Agency, POV Agency shall be entitled to suspend its performance of the Agreement and/or to charge to the Client any additional costs arising from the delay at the usual rates that apply at that time.
7.3 If, within the framework of the Agreement, POV Agency discloses any user names and/or passwords to the Client, the Client is responsible for the correct use of these user names and/or passwords and is entirely liable for any misuse made of the user names or passwords, unless such misuse is the result of intent or gross negligence on the part of POV Agency.
7.4 If POV Agency discloses user names and/or passwords within the framework of the Agreement, the Client is prohibited from disclosing, publishing and/or sharing these user names and/or passwords to third parties without POV Agency’s explicit written consent.
8. Termination, premature termination and the related consequences
8.1 An Agreement is in effect as of the date stated in Section 3 for the term agreed upon in writing between the Parties and ends by operation of law on the date as agreed upon by the Parties or when the Services provided by POV Agency have been completed.
8.2 Unless explicitly agreed otherwise in writing, the Parties can terminate the Agreement prematurely in writing subject to a notice period of one (1) months. If the Client terminates the Agreement prematurely, POV Agency is entitled to charge cancellation costs (including, but not limited to, costs already incurred in connection with the scheduling of personnel by POV Agency who can no longer be deployed elsewhere because of the change and/or cancellation of the Assignment).
8.3 POV Agency is entitled to terminate the Agreement wholly or in part with immediate effect, without judicial intervention and without being obligated to pay any loss and/or damages or any other form of compensation to the client, in the event (i) the Client is declared bankrupt or is granted a suspension of payments; as well as (ii) the Client’s business is closed down or liquidated other than for the purposes of reconstruction or merger of companies, or (iii) if the decisive control of the Client’s business changes (change of control).
8.4 The Agreement may only be terminated on the basis of an attributable breach of the Agreement after a written notice of default has been sent by the Client to POV Agency that is as detailed as possible, with a reasonable term being set for fulfilment or remedy of the failure by POV Agency, unless these Conditions or the law provide otherwise.
8.5 If the Agreement is terminated, anything POV Agency has already delivered to and/or carried out for the Client under the Agreement as well as the related payment obligations of the Client shall not be(come) undone and/or undue, unless the Client proves that POV Agency is in default with regard to the material part of those Services. Amounts which POV Agency has invoiced before the dissolution of the Agreement, relating to Services already provided or performed under the Agreement, shall remain due and payable at the moment of dissolution.
8.6 In the event of dissolution of the Agreement, all rights granted to the Client automatically lapse, except for those IP-Rights that have been transferred to the Client or for which it has been agreed in writing at the time of dissolution of the Agreement that they will continue. In the event of dissolution of the Agreement, all rights granted to the Client are no longer entitled to use the Service.
8.7 Sections that, by their nature, are intended to continue to apply after the end of the Agreement shall remain fully effective after the Agreement is terminated, including, but not limited to, the sections relating to confidentiality, applicable law and competent courts.
9. IP Rights
9.1 Unless explicitly determined otherwise in the Agreement, all IP-rights to all the Services provided within the framework of the Agreement, as well as all other materials or information which POV Agency has made available shall be vested exclusively in POV Agency and/or its licensors.
9.2 Any IP Rights arising in whole or in part on the part of the Client in the context of the Services provided under the Agreement shall be transferred by POV Agency to the Client, under the condition precedent as set out in the Agreement, including – but not limited to – full payment by the Client of the agreed fees to POV Agency for the Services to be provided. To the extent that any further legal acts are required for this transfer, both parties shall cooperate with it. Nothing in these Conditions implies a transfer of IP Rights by POV Agency to Client.
9.3 POV Agency explicitly does not relinquish its personal rights referred to in Section 25 of the Dutch Copyright Act (Auteurswet).
9.4 POV Agency is permitted to use the Services and the materials used for the implementation of the Agreement, such as designs, drawings, films, software, files whether electronic or otherwise, reports, formats and interviews, for purposes of its own promotion and/or publicity, unless otherwise stipulated in the Agreement.
9.5 POV Agency reserves the right to introduce technical protective measures into the Services. The Client is not permitted to circumvent these technical protective measures or to offer means to do so.
10.1 Except in the event of intent or gross negligence by POV Agency, any liability of POV Agency on account of (i) an attributable failure to perform the Agreement; (ii) in tort; or (iii) for any other reason, expressly including any failure in the performance of a warranty obligation agreed with Client (hereinafter: a “Liability Event”), shall be limited to compensation of the direct damage suffered by Client up to a maximum of the amount invoiced by POV Agency to Client 12 months up to the date of the Liability Event in the context of the Agreement (excluding third-party fees, including media and licence fees) and paid by Client in a timely manner.
10.2 POV Agency shall not be liable for indirect loss or damages, consequential damage, lost profit, missed savings, reduced goodwill, damage due to operational delays, damage as a consequence of claims by purchasers of the Client, damage relating to the use of third-party goods, materials or software prescribed to POV Agency by the Client and damage relating to the engagement of third parties prescribed by the Client to POV Agency. Nor is POV Agency liable due to deformation, destruction or loss of data or documents.
10.3 POV Agency shall not be liable for any loss and/or damages which is covered by any insurance taken out by the Client.
10.4 The exclusions and restrictions of POV Agency’s liability, as described in the above paragraphs of this Section 12, do not in any way prejudice the exclusions or restrictions of POV Agency on account of this general part of these Conditions and the Schedule.
10.5 Unless fulfilment by POV Agency is permanently impossible, liability on the part of POV Agency due to attributable failure in the fulfilment of an Agreement shall only arise after the Client has immediately placed POV Agency in default in writing, whereby a reasonable deadline for rectification of such failure has been set and POV Agency continues, even after such deadline, to fail culpably in the fulfilment of its obligations. The notice of default must include as complete and detailed a description of the failure as possible, so that POV Agency has the opportunity to respond adequately.
10.6 Any right to compensation is always subject to the Client reporting the damage as quickly as possible, but in any event within thirty (30) calendar days after it has arisen. If POV Agency is not informed by the aforementioned deadline, POV Agency shall be released from any liability in connection with said damage. Any claim for compensation against POV Agency shall cease to exist simply by the passage of twelve (12) months after the claim arose.
10.7 The Client shall bear the full risk and responsibility for its use of the Services. POV Agency does not accept any liability for use of the Services by the Client. The Client indemnifies POV Agency against all third-party claims in connection with the performance of the Agreement and/or resulting from the use of the Services by the Client.
10.8 The Client shall indemnify POV Agency against all third-party claims due to product liability as a consequence of a defect in a product or system supplied by the Client to third parties and which consisted partly of equipment, software or other materials supplied by POV Agency, unless and insofar as the Client proves that the damage was caused by said equipment, software or other materials.
10.9 The provisions in this Section 12, as well as all other liability restrictions and exclusions referred to in these Conditions, also apply for the benefit of all legal entities/persons which POV Agency serves during the performance of the Agreement.
11. Force Majeure
11.1 In the event of force majeure, no attributable failure applies in the performance of the Agreement by the Parties.
11.2 Force majeure includes, among other things, disruptions in the supply of electricity, strikes or work interruption, riots, government measures, fire, natural disasters, floods, failure on the part of POV Agency’s suppliers, failure on the part of third parties enlisted by the Parties, disruptions in the Internet connection, malfunctions in equipment and/or (telecommunication) networks and other unforeseen circumstances.
11.3 If POV Agency can still perform in part at the time of the force majeure, or if it has performed, it is authorised to perform this Service and to invoice it separately, as if it were a separate Agreement.
12. Applicable law and competent court
12.1 These Conditions, the Annexes and the Agreement are exclusively subject to Dutch law.
12.2 The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
12.3 Disputes that may arise between POV Agency and the Client within the framework of, or in connection with, these Conditions, the Annexes and/or the Agreement shall exclusively be submitted to the competent court in the Netherlands.