General Terms and Conditions of DigitalRise B.V.
We advise you to read these General Terms and Conditions carefully so that you are aware of your rights and obligations under the Agreement between you and us. In these General Terms and Conditions you are referred to as the Client. For the sake of readability we use the masculine form, but wherever “he” is used, “she” is of course equally intended.
Article 1. Definitions
In these General Terms and Conditions, the following capitalised terms shall have the meanings set out below:
DigitalRise B.V.
the private limited liability company DigitalRise B.V., established and having its registered office at (5041 SH) Tilburg, Burgemeester Brokxlaan 1882;
Advertorial
an editorially styled contribution, article or blog published on an external website of a Publisher and containing one or more links to a URL designated by the Client;
General Terms and Conditions
these general terms and conditions of DigitalRise B.V.;
Service
the service performed by DigitalRise B.V.;
Intellectual Property Rights
all intellectual property rights such as copyrights, trademark rights, patent rights, trade name rights, database rights and neighbouring rights, as well as related rights such as rights to know-how and domain names;
Marketplace
the online platform of DigitalRise B.V. on which the Client can view, select and order placement opportunities, in whatever form offered, including any (online) order overview or file environment made available by DigitalRise B.V.;
Client
you, the client and counterparty of DigitalRise B.V. under the Agreement;
Order
an order for one or more Placements submitted by the Client via the Marketplace;
Agreement
the contract for services between DigitalRise B.V. and the Client setting out the specifications of the Services;
Party/Parties
DigitalRise B.V. and/or the Client.
Placement
the publication of an Advertorial or of a link on a website of a Publisher. DigitalRise B.V. exclusively delivers Advertorials and links; banners and other forms of advertising do not form part of the Services;
Publisher
the third party operating the website on which a Placement is published;
Article 2. Applicability
2.1 The General Terms and Conditions apply to every Agreement between DigitalRise B.V. and the Client. Any general terms and conditions of the Client are hereby expressly rejected.
2.2 The General Terms and Conditions also apply in full to all Orders placed via the Marketplace and to all Placements resulting therefrom. By placing an Order via the Marketplace, the Client declares that he has taken note of these General Terms and Conditions and accepts them.
2.3 An Order is concluded at the moment the Client has definitively submitted it via the Marketplace. Each Order constitutes a separate Agreement to which these General Terms and Conditions apply in full, including where a framework agreement or ongoing Agreement additionally exists between the Parties.
2.4 Deviations from and additions to the Agreement are only valid if agreed in writing by the Parties.
2.5 Where DigitalRise B.V. engages other parties to deliver the Services, these General Terms and Conditions also apply to the performance of the Services by that other party.
2.6 DigitalRise B.V. is entitled to amend these General Terms and Conditions. Substantive amendments take effect one (1) month after announcement. Amendments to the General Terms and Conditions have no effect on an existing Agreement.
Article 3. Formation of the Agreement
3.1 Quotations and offers from DigitalRise B.V. are without obligation, unless the quotation states a validity period. Where no period for acceptance is stated, the quotation always lapses after one month.
3.2 If the Client places an order with DigitalRise B.V. without a prior offer, DigitalRise B.V. is only bound by that order once it has confirmed it to the Client in writing.
3.3 A quotation for the delivery of multiple Services does not oblige DigitalRise B.V. to deliver part of the Services in that quotation for a corresponding part of the price.
3.4 Offers, quotations, price indications and rates do not automatically apply to repeat orders and/or new assignments.
3.5 Prices, availability and other details of placement opportunities on the Marketplace are indicative and may change in the interim. DigitalRise B.V. is not bound by obvious errors or clerical mistakes in the Marketplace.
Article 4. The Service
4.1 DigitalRise B.V. always performs its Services on a best-efforts basis and gives no guarantee as to the results of its services, unless the Parties expressly agree otherwise in writing.
4.2 DigitalRise B.V. shall perform the Agreement to the best of its insight and ability and in accordance with the requirements applicable to a professional party. If and insofar as the proper performance of the Agreement so requires, DigitalRise B.V. has the right to have certain work performed by third parties, at the discretion of DigitalRise B.V. The applicability of Articles 7:404, 7:407 and 7:409 of the Dutch Civil Code is expressly excluded.
4.3 An agreed term only constitutes a strict deadline where this has been expressly stipulated in writing in the Agreement. In all other cases, an agreed term is indicative.
4.4 DigitalRise B.V. is entitled to perform the work in parts or phases, whereby each part or phase may be invoiced separately.
4.5 The obligation of DigitalRise B.V. is limited to realising the agreed Placement. DigitalRise B.V. expressly gives no guarantee as to the positions (rankings) of the Client’s website or URLs in Google or any other search engine, nor as to visibility, findability, visitor numbers, domain authority, traffic, conversions, revenue or any other SEO- or marketing-related outcomes. Search engines determine their algorithms, guidelines and display independently; this falls entirely outside the sphere of influence of DigitalRise B.V.
4.6 DigitalRise B.V. is not responsible and not liable if a Placement is not, not fully, not timely or not permanently indexed by Google or any other search engine, or if a previously indexed Placement is subsequently removed from the index of a search engine or declines in value. The same applies if the website of the Publisher or the website of the Client is penalised, de-indexed or otherwise negatively assessed by a search engine. The non-indexing or de-indexing of a Placement does not entitle the Client to any refund, replacement, re-placement, suspension of payment, discount or any other form of compensation or damages.
4.7 At the Client’s request, DigitalRise B.V. shall use its best efforts, free of charge, to have the Publisher submit a direct indexing signal for the Placement via Google Search Console. This constitutes a best-efforts obligation only: DigitalRise B.V. cannot guarantee that the Publisher will cooperate, nor that indexing will follow. Requesting an indexing signal is the only means available to DigitalRise B.V. in respect of indexing, and any failure of that request to produce results falls under the preceding paragraph.
4.8 Where the Agreement, the Order or the Marketplace states a period for which an Advertorial or other Placement remains online — including designations such as “permanent”, “indefinite”, “lifetime” or a stated number of months or years — that period applies only insofar as and for as long as the website of the Publisher on which the Placement is published remains online and operational. The stated period therefore constitutes a maximum and not a guarantee.
4.9 If the website of the Publisher goes offline in whole or in part, is discontinued, changes ownership, is restructured or is otherwise no longer available, the Placement ends by operation of law. In that case DigitalRise B.V. is not obliged to provide any refund, replacement or damages, unless the Parties have expressly agreed otherwise in writing. The same applies if the Publisher unilaterally removes or amends the Placement or sets the link to “nofollow”.
Article 5. Obligations of the Client
5.1 The Client undertakes to provide DigitalRise B.V. with all necessary information and cooperation that DigitalRise B.V. requires in order to perform the Services. DigitalRise B.V. may suspend the work for as long as the Client fails to comply with the obligation in this provision. DigitalRise B.V. is never liable for any damage and/or delay arising from a failure to comply, or to comply in time or properly, with the duty to provide information and cooperation referred to in this article.
5.2 Upon and no later than at the moment of placing an Order via the Marketplace, the Client shall supply, on a one-off basis, the definitive information required for the Placement, including the final text or content to be supplied, the links to be placed, the associated URLs and the desired anchor texts. The Client is himself responsible for the accuracy, completeness, currency and lawfulness of this information.
5.3 The information supplied with the Order is deemed final. Changes, additions or corrections communicated by the Client after the Order has been placed cannot be implemented retroactively and do not give rise to any right to a refund, re-placement, credit, suspension of payment or any other form of compensation. DigitalRise B.V. is not obliged to process any changes after the Order has been placed.
5.4 If, at the Client’s request, DigitalRise B.V. is nevertheless willing to implement a change and the Publisher concerned cooperates, this constitutes an additional assignment. The associated costs will be charged to the Client at the rates applicable at that time. DigitalRise B.V. may refuse such a request without stating reasons.
5.5 Inaccuracies in the information supplied by the Client — including typographical errors, incorrect, incomplete or non-functioning URLs, incorrect anchor texts and the supply of the wrong text — are entirely for the account and risk of the Client. A Placement carried out in accordance with the information supplied by the Client is deemed correctly delivered and fully payable.
5.6 The Client warrants that the content and URLs supplied do not conflict with the law, with search engine guidelines or with the rights of third parties, including Intellectual Property Rights. The Client indemnifies DigitalRise B.V. against all third-party claims relating thereto.
Article 6. Termination of the Agreement
6.1 The duration of the Agreement is determined in the Agreement itself.
6.2 DigitalRise B.V. is permitted to terminate an Agreement in writing at any time, observing a notice period of one month. DigitalRise B.V. is not obliged to pay any form of damages and/or financial compensation as a result of (interim) termination.
6.3 The Client may terminate the Agreement on an interim basis, observing a notice period of at least 1 month.
6.4 Each Party has the right to terminate the Agreement in whole or in part with immediate effect if the other Party is declared bankrupt or is granted a suspension of payments, as well as if the business of the other Party is wound up or goes into liquidation.
6.5 Where the Agreement is rescinded at any time and Services have already been performed at that moment, the Services already performed and the associated payment obligation of the Client shall not be subject to any obligation of reversal, unless the Client can prove that DigitalRise B.V. is in default with regard specifically to those Services. Amounts invoiced by DigitalRise B.V. prior to the rescission in connection with performances already properly rendered or delivered by it in the context of the performance of the Agreement remain payable in full and become immediately due and payable at the moment of rescission.
6.6 The Client is liable towards third parties for the consequences of the cancellation and shall indemnify DigitalRise B.V. against any resulting claims from such third parties.
Article 7. Fees and Payment
7.1 All amounts stated in an offer, quotation or Agreement are denominated in Euros and are exclusive of VAT and any other government-imposed levies, unless stated otherwise.
7.2 The Client must pay the invoice in full within fourteen days of the invoice date. This payment term constitutes a strict deadline and the Client is therefore in default without further notice of default if payment is not made on time.
7.3 If the Client is of the opinion that the invoice amount is incorrect, or that there is any other defect in the invoice, he must notify DigitalRise B.V. immediately, submitting convincing evidence of his position. Disputing (part of) an invoice does not suspend the Client’s payment obligation in respect of (the undisputed part of) an invoice.
7.4 DigitalRise B.V. is entitled to adjust its rates at any time. DigitalRise B.V. shall notify the Client at least 2 (two) months prior to a rate change. If DigitalRise B.V. has announced a rate change, the Client may terminate the Agreement up to the moment the rate change takes effect. In doing so, the Client must observe a notice period of one month.
7.5 DigitalRise B.V. is entitled to increase its rates annually in line with the Consumer Price Index as published by Statistics Netherlands (Centraal Bureau voor de Statistiek), without this giving the Client the right to terminate or otherwise end the Agreement.
7.6 For an Order placed via the Marketplace, the price stated in the Marketplace at the moment of placing applies. A rate change as referred to in this article does not apply to Orders already placed.
Article 8. Intellectual Property Rights
8.1 All Intellectual Property Rights vested in documents or materials that the Client provides to DigitalRise B.V. in the context of the performance of the Agreement shall at all times remain with the Client. The Client grants DigitalRise B.V. a worldwide, non-exclusive and sublicensable licence to use the materials supplied for the performance of the Agreement.
8.2 The Intellectual Property Rights vested in DigitalRise B.V. at the time the Agreement is entered into shall remain with DigitalRise B.V.
8.3 If and insofar as Intellectual Property Rights arise in the result of the Services during the performance of the Agreement, those Intellectual Property Rights shall vest in DigitalRise B.V.
8.4 Subject to the condition that the Client has fulfilled all of its (payment) obligations under the Agreement, the Client obtains a limited, non-transferable, non-exclusive licence to use the Intellectual Property Rights in the result of the Services.
8.5 If the content or URLs supplied by the Client infringe the rights of third parties, including Intellectual Property Rights, the resulting damage shall be entirely for the account of the Client and cannot be recovered from DigitalRise B.V.
8.6 The Client warrants that all images supplied by him are royalty-free, or that he holds all necessary licences and usage rights for publication on the website of the Publisher. The Client confirms this per Order. DigitalRise B.V. does not carry out any independent check on the origin or rights status of supplied images and is not liable in that respect.
8.7 For Orders in niches with an increased legal risk — including in any event, but not limited to, crypto, financial products, gambling and casino — the Client shall provide a separate, manual confirmation per Order that the Placement concerned, the content supplied, the images supplied and the URLs supplied comply with Dutch laws and regulations, including the applicable rules on advertising for games of chance and financial products and the guidelines of the competent supervisory authorities. Without this confirmation, DigitalRise B.V. will not execute the Order.
8.8 The confirmation referred to in paragraphs 6 and 7 of this article constitutes a warranty by the Client. DigitalRise B.V. does not carry out any substantive or legal review in this respect and is not liable for the content, the lawfulness or the consequences of the content, images and URLs supplied by the Client. The Client fully indemnifies DigitalRise B.V. against all claims, fines, charges and costs of third parties and of supervisory authorities relating thereto.
Article 9. Privacy
9.1 If, in the context of the performance of the Services by DigitalRise B.V., personal data of the Client’s customers must be processed, DigitalRise B.V. shall be regarded as “processor” within the meaning of the General Data Protection Regulation and the Client as “controller”.
9.2 In accordance with Article 28(3) of the General Data Protection Regulation, the Client and DigitalRise B.V. shall enter into a data processing agreement governing the processing of Personal Data by DigitalRise B.V. in accordance with the relevant regulations.
Article 10. Confidentiality
10.1 The Parties shall treat as strictly confidential and keep secret all information they obtain from each other in whatever form — written, oral, electronic or tangible — including but not limited to software, (source) code, programs, applications, customer data, know-how, technical specifications and documentation (“Confidential Information”).
10.2 The Parties shall use the Confidential Information only for the purposes for which it was provided, such as for the performance of the Agreement and/or as stipulated in the Agreement and the General Terms and Conditions. In doing so they shall observe at least the same duty of care and safeguards as apply to their own internal confidential information. The Parties shall disclose the Confidential Information to employees only insofar as this is necessary in the context of (the performance of) the Agreement.
10.3 The obligations of confidentiality in respect of the Confidential Information do not apply insofar as the Party that received the information can demonstrate that the information concerned:
i) was already known to it at the time of receipt;
ii) was already publicly known at the time of receipt;
iii) has become publicly known after receipt without this being attributable to the receiving Party;
iv) was lawfully received from a third party together with the right to disclose it free of any obligation of confidentiality;
v) has been disclosed with the approval of the disclosing Party.
10.4 If the receiving Party receives an order from a competent authority to surrender Confidential Information, it is entitled to do so. However, the receiving Party is obliged to inform the disclosing Party of the order as soon as possible, unless the order or the law expressly prohibits this. If the disclosing Party takes measures against the order (for example by way of preliminary injunction proceedings), the receiving Party shall postpone surrender until a decision on those measures has been taken, insofar as this is legally possible.
10.5 During the term of the Agreement and for 1 (one) year thereafter, each Party shall only, with the prior consent of the other Party, employ or otherwise, directly or indirectly, engage to work for it employees of the other Party who are or have been involved in the performance of the Agreement.
Article 11. Liability
11.1 The liability of DigitalRise B.V. is limited to compensation for direct damage, regardless of the ground for liability.
11.2 Direct damage is understood to mean only:
a) Property damage, exclusively within the meaning of Section 3, Title 3 of Book 6 of the Dutch Civil Code;
b) Reasonable costs incurred to prevent property damage, insofar as the Client can demonstrate that these expenses have led to a limitation of direct damage within the meaning of the Agreement;
c) Expenses reasonably incurred by the Client to establish the cause and extent of the damage, insofar as that determination relates to direct damage within the meaning of the Agreement;
d) Reasonably incurred costs that the Client must make in order to bring the performance of DigitalRise B.V. into conformity with the Agreement.
11.3 DigitalRise B.V. is not liable for damage other than direct damage, such as loss of profit, loss of turnover, loss of anticipated savings and other similar financial losses, as well as loss of goodwill or good name or reputation and all other damage that does not fall within the direct damage referred to above.
11.4 Insofar as DigitalRise B.V. is liable, that liability is limited to no more than the fee paid by the Client under the Agreement.
11.5 The Client’s right to claim damages lapses in any event one (1) year after the event that caused the damage occurred.
11.6 The limitations of liability set out in this article do not apply in the event of intent or deliberate recklessness on the part of DigitalRise B.V., and are without prejudice to any liability that cannot be limited or excluded by law.
Article 12. Miscellaneous
12.1 The Client is not entitled to transfer its rights and/or obligations arising from the Agreement to a third party without the consent of DigitalRise B.V., unless the Parties have expressly agreed otherwise in writing.
12.2 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by the remaining provisions. The Parties shall then, in good consultation, replace the invalid provisions with another provision that is valid and that reflects the intention of the Parties as closely as possible.
12.3 The Agreement is governed by Dutch law. All disputes arising from the Agreement shall be submitted at first instance to the competent court in the district where DigitalRise B.V. is established.
