Terms and Conditions - Clients

Standard Terms and Conditions

These terms and conditions (“Terms and Conditions”) govern the services provided by DDB Amsterdam BV (“Agency”) pursuant to any agreement, SOW, offer, quotation and/or other legal relationship (“Agreement”) between Agency and the Client.

1. Services
1.1 During the term of the Agreement, Agency will perform, if and to the extent requested by Client, the services described in the Agreement (the “Services”) and deliver the deliverables set out in the Agreement (the “Deliverables”), in accordance with the terms of the Agreement.

1.2 Any services or deliverables that are not set forth in the Agreement are out of scope. If Client would like Agency to perform any out of scope services or to use any ideas, concepts, strategies, trademarks and materials (collectively, “Out of Scope Elements and Materials”) that Agency may present or provide to Client in connection with any potential out of scope services, Agency and Client will negotiate the terms of such services or such use and, upon agreement, will enter into a new statement of work or other written agreement setting forth the agreed upon terms. Unless and until Agency and Client otherwise agree in writing, as between Agency and Client, Agency shall retain all rights to the Out of Scope Elements and Materials.

1.3 Agency shall not be responsible for delays or failure to timely deliver deliverables or complete the Services to the extent caused by delays by Client or other reasons outside of Agency’s reasonable control.

2. Ownership
2.1 As between Client and Agency, any material that Agency produces on Client’s behalf as part of the Services (“Work Product”) will become Client’s property when Client has paid Agency’s invoices. Under the condition that all of Agency’s invoices have been paid in full, Agency assigns to Client all of Agency’s right, title and interest in and to the Work Product. Agency shall cooperate with Client and execute all reasonable documents and take other necessary actions as reasonably directed by Client and at Client’s expense, to effect the foregoing grant of rights.

2.2 The term “Work Product” shall not include (i) any pre-existing Agency materials identified to Client in writing in advance and approved by Client for use (“Pre-Existing Elements”), (ii) any Out of Scope Elements or Materials; or (iii) any software or any research, strategies, ideas, concepts, knowledge, techniques, procedures, processes, algorithms, protocols, routines and methods, (collectively, “Software and Tools”), regardless of when created (including during the Services for Client) and which may be repurposed and used for multiple clients or projects without infringing Client’s copyright in its final consumer facing material or using Client’s non-public confidential information. However, insofar as Agency’s rights are concerned, unless Agency and Client otherwise agree in writing, including pursuant to the terms of the Agreement, Client shall have the right to use (x) any Software and Tools that are embedded in or otherwise necessary to the use the Work Product in any manner that Client sees fit, (y) any Pre-Existing Elements that are embedded in the Work Product, in any manner in connection with Client’s use of the Work Product, or (z) any Pre-Existing Elements that are not embedded in the Work Product, during the term of the Agreement.

3. Client Responsibilities
3.1 Client will timely provide copyright and trademark designations, as appropriate, as well as approval of, and substantiation for, all advertising claims. Client will be responsible for ensuring the accuracy of all advertising claims and for the content of any advertising as it relates to Client, its products or services or competitors, in each case contained in materials that Client approves. Client shall also be responsible for performing trademark searches beyond preliminary Benelux desktop trademark searches. Client will cooperate with Agency and respond to requests for information, approvals and materials in a timely manner in order to allow Agency to perform its Services and meet its obligations pursuant to the Agreement. Agency will not be responsible for (i) clearing patents or conducting patent searches unless Client requests in writing that a patent search be conducted in a particular situation and Client pays the costs of such patent search or (ii) securing rights with respect to any materials provided by or on behalf of Client (including without limitation by another agency) or for which Client agrees to secure permission. Client is solely responsible for its use of any Work Product and/or Deliverables that is altered or has not been produced in final form by Agency for public distribution.

4. Third Parties
4.1 Agency will use commercially reasonable efforts to guard against any loss to Client caused by the failure of suppliers or others selected by Agency to perform in accordance with their commitments, but Agency will not be responsible for any such loss or failure on their part, or any destruction or unauthorized use by others of Client’s property.

4.2 Once Client has approved (by production estimate or other writing (including by email)) the costs and nature of third party services and materials that Agency intends to procure on Client’s behalf in performing Agency’s Services pursuant to the Agreement, Agency will act as an agent (“gevolmachtigde”) on Client’s behalf as a disclosed principal in entering into agreements for those services and materials.

5. Confidentiality and Data
5.1 Each party may be given access to information that is identified by the other as confidential or that a reasonable person would understand to be confidential under the circumstances. Such confidential information will be kept confidential by the receiving party and may only be used by the receiving party as necessary to perform the Services and its obligations pursuant to the Agreement. Each party agrees to protect the other’s confidential information in the same manner that it protects its own similar confidential information, but in no event using less than a reasonable standard of care.

5.2 Client shall not provide to Agency, nor cause Agency to collect or process, any personal data, unless otherwise agreed in the Agreement and/or an amendment to the Agreement, signed by both parties.

5.3 If Agency will process any personal data, as defined by the GDPR (“Personal Data”) pursuant to the Agreement, Client and Agency will enter into a Data Processing Agreement as defined under the GDPR. Client shall not provide to Agency, nor cause Agency to collect or process, any personal data before a Data Processing Agreement has been concluded.

6. Termination and Renewal
6.1 Either party may terminate the Agreement, upon ten (10) days’ written notice to the other party, if the other party has materially breached the Agreement and fails to cure such breach within ten (10) business days of receipt of written notice from the nonbreaching party specifying the breach and that if such breach is not cured within the 10 business day cure period it shall be grounds for termination.

6.2 If the term of the Agreement is a period of four (4) months or less (a “Short Term Agreement”), the Agreement may not be terminated prior to the end of the term for other than uncured material breach of the Agreement by the other party. If Client wishes to terminate or cancel all or any portion of a Short Term Agreement or Agency’s Services for any reason other than Agency’s material breach of the Agreement, the full Fee (and any other amounts incurred by Agency in accordance with the terms of the Agreement prior to Client’s instructions to cancel or stop working) shall be due to Agency, notwithstanding such cancellation or termination.

6.3 If the term of the Agreement is a period of more than four (4) months (a “Longer Term Agreement”) and there are more than 90 days of the term remaining at the time notice of termination is provided, either party may terminate the Agreement by providing the other party with no less than ninety (90) days’ prior written notice. The date that is the end of the not less than 90 day notice period shall be referred to as the “effective date of termination”. During the notice period and through the effective date of termination, Client shall continue to pay Agency the Fee (and any other amounts incurred by Agency in accordance with the terms of the Agreement prior to the effective date of termination), and Agency shall continue to perform, if and to the extent requested by Client, the Services. Absent a material breach of the Agreement, a Longer Term Agreement may not be cancelled (in whole or in part) or terminated prior to the end of the term of the Agreement other than in accordance with this Section 6.3. Upon termination, Client shall also assume and hold Agency harmless with respect to any uncancellable contracts.

7. Limitation of Liability
7.1 UNLESS IN CASE OF DEMONSTRABLE INTENT OR GROSS NEGLIGENCE BY AGENCY, AGENCY’S AGGREGATE LIABILITY FOR ANY CLAIM OF ANY KIND ARISING OUT OF OR RESULTING FROM THE AGREEMENT OR AGENCY’S SERVICES PURSUANT TO THE AGREEMENT, WHETHER BASED IN CONTRACT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, SHALL BE LIMITED TO THE FEES RECEIVED BY AGENCY FROM CLIENT FOR THE PARTICULAR MATERIAL OR SERVICES WHICH FORMS THE BASIS OF SUCH CLAIM.

8. Other Terms
8.1 Agency shall have the right to list and/or refer to Client as a client of Agency’s for credential, award and publicity purposes and to use any advertising materials produced by Agency on Client’s behalf for public distribution pursuant to the Agreement (after such materials have been authorized by Client for public distribution) for credential and award show purposes and for distribution to trade publications (e.g., AdWeek, AdAge, etc.) for publicity purposes.

8.2 Agency reserves the right to change the requirements as to terms of payment for the Agreement (including the right to require payment in advance) for Agency’s fee and third-party costs, in the event (a) credit insurers decline coverage, or revise or withdraw coverage on the Client; or (b) the Client’s credit rating (through Euler Hermes or other source) adversely changes.

8.3 Any changes to the Agreement will only be effective if agreed to by both Agency and Client and set forth in a written change order or amendment to the Agreement signed by both Agency and Client.

8.4 The Agreement and these Terms and Conditions shall be governed by and construed in accordance with the laws of the Netherlands, without regard to its conflict of laws provisions, and each party irrevocably submits to the jurisdiction of the courts located in Amsterdam, the Netherlands with respect to any disputes arising out of or in connection with the Agreement.

8.5 Application of the Vienna Convention on Contracts for the International Sale of Goods is expressly excluded.

Confidential - Not for Public Consumption or Distribution