Terms & conditions
Article 1. Definitions
When terms are written with a capital letter, the following is meant in these general terms and conditions of sale:
- General Conditions: these General Conditions of the Ace Family;
- Ace: Ace B.V. was established in Utrecht and registered with the Chamber of Commerce under number 75020866;
- The Ace family: Ace B.V. (CoC-number: 75020866), Blauw Gras B.V. (CoC-number: 62228803), Born05 B.V. (CoC-number: 30250392) Glasnost International B.V. (CoC-number: 57992533), Herc the agency B.V. (CoC-number: 81475241), Label A B.V. (CoC-number: 24436380), Fitzgerald International B.V. (CoC-number: 75528940), Airborne B.V. (CoC-number: 73110914), We Are Off The Record B.V. (CoC-number: 66480302), NewBorn Ventures B.V. (CoC-number: 59660961) and Amaru B.V. (CoC-number: 86278452), IM Lounge B.V. (CoC-number: 50087061) together;
- The Ace Corporation: the individual company belonging to the Ace family as referred to in Article 1(c).
- Offer: an offer by Ace, the Ace family, and/or the Ace Corporation for a specific order from the Client, which briefly and concisely includes: a description of the services, the price charged for these services, and any services not included in the price.
- Agreement: all the arrangements between Ace, the Ace family, and/or the Ace Corporation on the one hand and the Client on the other, laid down in a written (Framework) Agreement and/or Offer, of which the General Terms and Conditions will always form an integral part;
- Framework agreement is an agreement between Ace / the Ace Corporation and the Client that is concluded with the intention that the Client will award several orders to the Ace family over a longer period.
- Client: any natural or legal person with whom Ace, the Ace family, and/or the Ace Corporation has concluded a contract, has issued an Offer, has an obligation in any other respect, or with whom the Ace Corporation is negotiating the conclusion of an agreement;
- The plural of a defined term includes the reference to its singular or vice versa.
Article 2. Applicability of the General Terms and Conditions
- These General Terms and Conditions shall apply to all requests, offers, the Agreement, and other obligations between the Ace Corporation and the Client. Where the General Conditions apply to the Agreement concluded by the Ace Corporation and the Client, they shall also apply to all subsequent agreements.
- Deviation from and/or addition to the General Terms and Conditions or the Agreement may only be agreed upon in writing.
- The applicability of the Client's General Terms and Conditions are hereby rejected and explicitly do not apply to the Agreement. If the content of the Agreement differs from the content of the General Terms and Conditions, the content of the Agreement shall prevail. If the Ace Corporation uses general terms and conditions other than these General Terms and Conditions, the contents of these General Terms and Conditions shall prevail.
Article 3. The Offer, Conclusion of Agreement, Framework Agreement, and Exclusivity
- Offers made by the Ace Corporation shall always be free of obligation.
- The Agreement between the Ace Corporation and the Client shall come into effect when the tender of the Ace Corporation is signed by the Client or when the tender of the Ace Corporation is approved by the Client by e-mail.
- Offers or quotations do not automatically apply to future orders.
- A Framework Agreement signed by the Ace Corporation and the Client will not oblige the Client to award orders to the Ace Corporation, nor will the Ace Corporation be obliged to perform services based on the Framework Agreement. The Ace Corporation's obligation to perform services for the Client will only arise at the time the Client signs the Framework Agreement.
- If the Ace Corporation and the Client have agreed on a Framework Agreement, this Framework Agreement shall apply to all Offers made by the Ace Corporation to the Client.
- Supplements to and amendments of the provisions of the Agreement shall only be binding on the Company after they have been accepted by the Ace Corporation in writing.
- Oral promises made by the Ace Corporation shall only be binding on the Ace Corporation after they have been confirmed by it in writing.
- Amendments to the Agreement may result in Ace Corporation exceeding agreed delivery dates.
Article 4. Execution of the Agreement - general
- The Agreement shall be performed by Ace Corporation to the best of its ability and with due care following the requirements of good craftsmanship. The services shall be performed based on the best efforts obligation.
- The Ace Corporation shall at all times be entitled, at its discretion, to engage other companies that are part of the Ace family, auxiliary persons, and third parties in the performance of the Agreement. If Ace or the Ace Corporation engages another company belonging to the Ace family in the performance of the Agreement, that company shall also be a party to the Agreement. If the Ace Corporation engages auxiliary persons and/or third parties (not other companies that are part of the Ace family), they will not be a party to the Agreement. The Ace Corporation shall require these agents and/or third parties to perform their services to the best of their abilities and with due care following the requirements of good workmanship, following socially accepted ethical standards, and following the quality that the Ace Corporation itself applies to its services.
- All assignments shall only be accepted and carried out with the exclusion of the effect of articles 7:404 (assignment given with a view to a specific person), 7:407 paragraph 2 (joint and several liabilities) of the Dutch Civil Code.
- The Ace Corporation will only be able to perform its services properly if the Client has provided all the information required for this purpose in a timely fashion and in full, and the Client is available for consultation. The Client shall ensure that all information requested by the Ace Corporation that is relevant for the performance of the Agreement is provided to the Ace Corporation promptly and in the desired form. The Ace Corporation shall be entitled to suspend its obligations towards the Client with immediate effect if the Client fails to meet its information obligations in full, as assessed by the Ace Corporation.
- If during the performance of the Agreement, the nature, substance, or scope of the Agreement or the offer is changed materially, as a result of which the Ace Corporation must perform more work, the Ace Corporation shall be entitled to amend the fee originally agreed upon. An amendment of the Agreement may also change the originally stated term of performance.
- Without being in default, the Ace Corporation may refuse a request to amend the Agreement if such amendment could have a qualitative effect on the services to be provided by the Ace Corporation.
- In the event of failure to meet a deadline, the Ace Corporation shall be allowed to fulfill its obligations within a reasonable period. The Ace Corporation and the Client have agreed on a sum for the services to be performed, that sum will be an estimate. If the Ace Corporation threatens to exceed this estimate for the services to be performed, the Ace Corporation shall contact the Client. The Ace Corporation and the Client shall then make additional agreements regarding the compensation for the services of the Ace Corporation that are still to be performed, in line with the agreements already in place.
Article 5. Prices, payment, and collection costs
- The Ace Corporation is entitled to unilaterally adjust its prices and rates every year at the beginning of each calendar year, within reason. In addition, in the event of a change in cost-determining factors, the Ace Corporation shall be entitled to charge the Client with immediate effect by utilizing a proportional adjustment of the prices charged by the Ace Corporation.
- Payment must be made within 30 days of the invoice date. If the full amount has not been credited to Ace Corporation's designated bank account within 30 days of the invoice date, the Client shall be in default forthwith without any further notice of default being required. From the day the default commences, the Client shall owe an interest of 2% per month or part of a month.
- Payments made by the Client to the Ace Corporation shall first be applied to reduce the extrajudicial costs, then the interest, and then the outstanding invoice, in order from oldest to newest. If the Ace Corporation advances costs on behalf of the Client at the Client's request, the Ace Corporation shall be entitled to apply a reasonable markup and charge this markup and these costs onto the Client.
Article 6. Termination or dissolution
- If the Ace Corporation and the Client have agreed on a Framework Agreement for an indefinite period, Ace Corporation and the Client shall have the right to terminate the Framework Agreement with at least three months' notice.
- If Ace Corporation and the Client have agreed on a Framework Agreement for a definite period, Ace Corporation and the Client shall have the right to terminate the Framework Agreement prematurely with a notice period of at least two months. If neither the Client nor the Ace Corporation has given written notice of termination of the Framework Agreement two months before the end of the term, the Framework Agreement will be extended for 1 year, subject to termination by mutual consent of all parties.
- An offer shall end when the Ace Corporation has fully completed the work as described in the offer and the Client has fully paid the amount due for the work. An assignment based on a Proposal signed by the Ace Corporation and the Client cannot be terminated prematurely unless it is a case of force majeure (as defined in Article 8). In the event of force majeure, the Client or the Ace Corporation shall be entitled to terminate the aforementioned order with immediate effect. The Ace Corporation shall no longer be obliged to perform its services from the time of the termination. In the event of premature termination, the order shall end immediately after the Client has paid the Ace Corporation in full for the total amount of hours worked and the costs incurred, to the Ace Corporation's satisfaction.
- The Ace Corporation shall be entitled to rescind the Agreement or to terminate it prematurely if there is a breach by the Client in the performance of its obligations under the Agreement and the Client fails to remedy that breach within a reasonable period after being notified by the Ace Corporation of that breach. This does not require that the breach is attributable.
- The Ace Corporation and the Customer shall in any event be entitled to dissolve the Agreement with immediate effect or to terminate the Agreement prematurely, without prior written notice of default being required, in the event of a) (application for) bankruptcy; b) (application for) a moratorium on payments; c) (partial) liquidation; d) attachment of the Client's assets by a third party; e) the Client's guardianship or death; f) the Client transfers (important parts of) its business or the control over it, in whole or in part; and/or g) breach of the confidentiality clause.
- Obligations that by their nature are intended to continue after termination of the Agreement shall continue after termination of the Agreement.
Article 7. ICT
- If the Client provides the Ace Corporation with information carriers, electronic files or software, etc., the Client warrants that these are free of viruses and defects.
- If the Client requests Ace Corporation to use certain equipment and/or software this shall always take place at the expense and risk of the Client. In that event, the Customer shall be obliged to provide all instructions on how to use the systems in a timely and complete manner.
- The Ace Corporation and the Client shall each be obliged to secure their systems and infrastructure adequately and to have anti-virus software in operation at all times.
- The access or identification codes provided are confidential and must be treated as such by the Ace Corporation and the Client.
Article 8. Force Majeure
- Force majeure shall exist if the failure of one of the parties cannot be attributed to his or her fault, nor can it be attributed to him or her by law, legal action, or generally accepted practice. In the event of prolonged force majeure, exceeding fourteen days, each party shall be entitled (in deviation from Article 6(4)) to dissolve/ terminate the Agreement in writing in whole or in part with immediate effect out of court or to suspend its obligations.
- For the Ace Corporation and/or the Ace family, force majeure shall include, but not be limited to strikes or industrial action in the business of the Client or of third parties on which the Ace Corporation is dependent in any way for the performance of the Agreement, war, riots, acts of war, boycotts, government measures as a result of (pan)epidemics (such as Covid-19), bankruptcy or suspension of payments in the case of one or more of its suppliers or third parties that have been contracted, natural disasters and power failures or failures of telecommunication facilities.
Article 9. Liability
- The Ace Corporation shall be insured for any damage resulting from the performance of its services (insofar as professional liability insurance covers such liability). All liability of the Ace Corporation shall always be limited to the amount that is paid out per event by the insurer, whereby a series of events shall be qualified as one event. If the insurer fails to pay out for any reason whatsoever, all liability of the Ace Corporation shall be limited to an amount equal to the invoices sent by the Ace Corporation to the Client twelve months before the relevant event.
- The Ace Corporation shall be liable for any personal injury and/or financial loss insofar as it is the direct result of a material breach by the Ace Corporation, and only insofar as it is directly related to or ensues from the performance of its services. The Ace Corporation shall not be liable for lost turnover, savings, reduced goodwill, and/or other forms of indirect damage of any kind whatsoever.
- The Ace Corporation shall not be liable for any damage caused by or arising from any acts or omissions of its contractors, subcontractors, or third parties other than companies that are members of the Ace Family.
- The Client and the Ace Corporation shall at all times be obliged to substantiate their allegation of a loss-causing event and damage in writing, stating reasons, within 45 days after the Client has discovered or reasonably should have discovered the loss. If, after the aforementioned period of 45 days, the Client or the Ace Corporation has notified the other party of the event causing the damage or loss, the other party will remain liable for the damage, on the understanding that the other party will not be obliged to compensate the damage caused by the late notification.
- Before the Client proceeds to claim damages from the Ace Corporation, the Client must first give the Ace Corporation notice of default and allow the Ace Corporation to perform within a reasonable term or to remedy the detrimental consequences of its failure to perform and/or its unlawful acts.
- All liability limitations or exclusions in the Agreement and these General Terms and Conditions shall not apply if the damage is the result of intent or conscious recklessness on the part of Ace Corporation, its managerial staff, and/or subordinates.
Article 10. Intellectual property
- The Ace Corporation reserves the rights and powers vested in it according to its intellectual property rights, which have been created and/or registered as a result of services provided or products manufactured by the Ace Corporation, whether or not on behalf of the Client. Client warrants that it will respect such intellectual property rights of the Ace Corporation and will not infringe such rights.
- Unless otherwise agreed in the separate order, the Ace Corporation grants the Client a perpetual license to use the intellectual property rights for the purpose described in the order.
- The Client warrants that - if and insofar as it makes materials, documents, images or data, or other data available to the Ace Corporation under the terms of the Agreement, or materials, documents, images or data, or other data are used by or on behalf of the Ace Corporation at the Client's request - it is entitled to do so and that such materials and data do not infringe any third-party rights. If it has been determined in a court of law that the result of the services provided by the Ace Corporation infringes any intellectual property right belonging to a third party or if, in the opinion of the Ace Corporation, there is a fair chance that such infringement will occur, the Ace Corporation shall, if possible, see to it that the Client can continue to use a similar result without any interruption, or shall proceed to credit the Client for the acquisition costs less a reasonable user fee. Any other or further liability or indemnification obligation of the Ace Corporation is excluded.
Article 11. Data and privacy
- According to the legislation concerning the processing of personal data (such as the Personal Data Protection Act), the Client has obligations towards third parties, such as the obligation to provide information, as well as to allow inspection, correction, and removal of personal data of those involved. The responsibility for complying with these obligations rests entirely and exclusively with the Client. The Ace Corporation shall, to the extent technically possible, cooperate with the obligations to be met by the Client, including the forwarding of requests of third parties in the context of the Client's aforementioned obligations. The costs associated with such cooperation shall be fully borne by the Customer.
- To the extent that the Ace Corporation and the Clientshare personal data in the context of the (possible) conclusion of an Agreement or in the performance of an Agreement, they shall reasonably comply with the requirements ensuing from applicable privacy legislation, such as the General Data Protection Regulation ("GDPR").
- The Client and the Ace Corporation guarantee that they will take appropriate technical and organizational measures - having regard to the nature of the data and the state of the art - to protect any personal data that the Client and the Ace Corporation provide and receive.
- The Client and the Ace Corporation guarantee that all data (such as personal data) that are made available have been obtained lawfully and have been made available to the other parties lawfully and securely and that the data do not infringe on any third-party rights.
Article 12. Secrecy and communication
- The Ace Corporation and the Client shall be obligated to observe the strictest confidentiality concerning all data, information, and knowledge acquired in the context of this Agreement that can reasonably be assumed to be confidential unless its disclosure is necessary for the performance of an agreement or to comply with a statutory provision or court order. The aforementioned confidentiality shall not apply in the event of disclosure to the courts in legal action between the Client on the one hand and Ace Corporation, Ace, or Ace Family on the other hand.
- The Ace Corporation and the Client guarantee and warrant that their employees and any contractors engaged by them shall observe the same duty of confidentiality.
- The Ace Corporation, Ace, and the Ace family on the one hand, and the Client on the other hand shall not make any negative statements about each other in public.
Article 13. Relation clause
- Without the prior written consent of the Ace Corporation, during the term of the Agreement and for 1 year after the termination of the Agreement, the Client shall refrain from: (i) entering into contracts with employees of the Ace Corporation and/or the Ace family; (ii) recruiting employees or representatives of the Ace Corporation and/or the Ace family with whom the Client has had contact in connection with the Agreement or the collaboration between the parties by offering them (temporary) employment or by having them perform services in any other way; and/or (ii) inducing or attempting to induce other business relations of the Ace Corporation and/or the Ace family to terminate their relationship with the Ace Corporation and/or the Ace family, in whole or in part.
- The Client shall, without any further notice of default being required, owe an immediately payable penalty of €35,000 for each breach of any obligation under this article, and of €6,000 for each day or part of a day that the breach continues, with a maximum penalty of €350,000. In addition, the Ace Corporation and/or the Ace family shall be entitled to claim damages from the Client.
Article 14. Other
- The Client waives his right to suspend and/or to set off.
- The invalidity of any provision of the Agreement and/or these General Terms and Conditions shall not affect the validity of the remaining provisions of the Agreement and these General Terms and Conditions.
- If it is established in court that one or more articles of the Agreement or these General Terms and Conditions are invalid or would otherwise be non-binding, the Ace Corporation and the Client shall, in consultation and the spirit of the Agreement and/or these General Terms and Conditions, amend them in provisions that differ as little as possible from the non-binding articles concerned.
- Obligations, which by their nature are intended to continue after the end of the Agreement, shall continue after the end of the Agreement.
- In the event of inconsistency between the Dutch version of these General Terms and Conditions and any translated version of these General Terms and Conditions, the Dutch version shall prevail.
- All communications in connection with agreements between the parties under the Agreement must, to be effective, be made in writing. Written" is understood to mean by (registered) letter, by e-mail, and/or other electronic means of communication (such as Whatsapp or Slack) which can be saved and printed out to serve as evidence.
Article 15. Applicable law and competent court
- The Agreement and the relationship between the Ace Corporation and the Client shall be governed by Dutch law.
- All disputes between the Client and the Ace Corporation shall in the first instance be settled by the District Court of Amsterdam.
- In addition to the General Provisions of these General Terms and Conditions, the Media provisions contained in this chapter shall apply between the Client and the Ace Corporation if the Client instructs the Ace Corporation to publish content for the Client utilizing media placements and media space (such as advertisements and advertising time).
- The Client is aware that the Ace Corporation purchases media placements and media space for the Client's content from third parties on behalf of the Client. The Ace Corporation shall pass the costs of such media placements and media space on to the Client in full. The prices charged by third parties for these media placements and media space may fluctuate, even between the time the quote is submitted and the final purchase. The Ace Corporation shall submit the definitive costs of the media placements and media space to the Client in advance.
- Ace Corporation shall charge the Client a fee for the work and additional costs incurred in connection with the purchase of media placements and media space, which fee shall be calculated based on the most recent rate card used by Ace Corporation, which Ace Corporation shall provide to the Client upon its first request.
- The Client shall ensure that the (fluctuating) costs passed on by the Ace Corporation and the fee concerning media placements and the media space is credited to the Ace Corporation's bank account before the Ace Corporation places the Client's content. The Ace Corporation is entitled to suspend the purchase of media placements and media space, or at least the placement of the Client's content if the full amount of the costs and fee charged by the Ace Corporation has not been posted to its bank account.