Fade Digital Inc. General Terms And Conditions
General Terms and Conditions for Fade Digital Inc.’s Search Marketing & Advertising Services comply with the North American IAB Standards (pdf), as provided by IAB Canada. Applicable to all agreements as per January 1st, 2018 onwards.
Article 1: Definitions
1.1 “Client”: any (legal) entity who has entered into, or wishes to enter into, an agreement with Fade Digital Inc., and also its representative(s), agent(s), assignee(s) and successors.
1.2 “Marketing Agency”: the private company with limited liability Fade Digital Inc.
Article 2: Applicability
2.1 These general terms and conditions shall apply to all bids and agreements relating to services offered by Fade Digital Inc.
2.2 The terms and conditions in question shall also apply to all agreements for the performance of which Fade Digital Inc. engages third parties.
2.3 The applicability of the general terms and conditions of the Client is expressly rejected.
2.4 Fade Digital Inc. has the right to change these general terms and conditions unilaterally. Changes shall also apply in respect of agreements that have already been entered into. The Client shall be informed of changes in writing or by e-mail and such changes shall come into effect thirty (30) days after notification, unless a different date is given in the notification.
2.5 If a stipulation of the agreement or the general terms and conditions proves to be invalid, this does not affect the validity of the agreement as a whole. In that case Fade Digital Inc. has the right to replace the stipulation with a stipulation – which is not unreasonably onerous for the Client – which approximates as closely as possible to the invalid stipulation.
Article 3: Tenders
3.1 All tenders made by Fade Digital Inc. are without obligation, unless – and then only insofar – stated otherwise in writing by Fade Digital Inc..
3.2 All tenders shall apply for 30 days, unless otherwise stated. Fade Digital Inc. is only bound to the bid if acceptance thereof is confirmed by the other party in writing within 30 days. If agreement is given after 30 days, Fade Digital Inc. has the right to adjust the period of performance or apply different amounts. The prices in the tenders (and bids) do not include HST/GST, unless otherwise stated. The prices applied are revised periodically (in principle as from 1 January and/or 1 July) on the basis of developments in wages and prices (index = 2016).
Article 4: Extra activities
4.1 Fade Digital Inc. has the right to adjust the price for the services provided by it in the event of changes in the approved functional design, project proposal or bid, among other things in respect of the planning, design, functionality, content, method, scope, analysis and/or reporting that take place in consultation with or at the request of the Client.
4.2 Fade Digital Inc. has the right to charge at the applicable hourly rate, or on the basis of another type of settlement method, for additional work, tests, discussions and/or services that take place at the request of the Client.
Article 5: Performance
5.1 Fade Digital Inc. shall perform the agreement to the best of its understanding and ability and in accordance with the requirements of best practice and Google Partners standards. Fade Digital Inc. shall make every effort to perform the activities properly. Fade Digital Inc. cannot guarantee however that the activities will always achieve the result wished by the Client.
5.2 Fade Digital Inc. has the right to have certain work carried out by third parties.
5.3 The Client shall ensure that all information that Fade Digital Inc. states is necessary, or which the Client should reasonably understand is necessary for the performance of the agreement, is provided to Fade Digital Inc. in due time. If the information needed for the performance of the agreement has not been provided to Fade Digital Inc. in due time, Fade Digital Inc. has the right to suspend the performance of the agreement and/or to charge the Client for the additional costs arising from the delay at the standard rates.
5.4 If it has been agreed that the agreement will be performed in phases, Fade Digital Inc. may suspend those parts that belong to a subsequent phase until the Client has approved in writing and/or paid for the results of the previous phase.
Article 6: Completion
6.1 If Fade Digital Inc. expects that it will not be able to meet a time limit, Fade Digital Inc. shall inform the Client of this as soon as possible.
Article 7: Reporting
7.1 Reporting shall take place in accordance with the project proposal, bid or agreement, and be fully supplied via a customer dashboard provided by Fade Digital Inc. If a this reporting medium is unsatisfactory to the Client, Fade Digital Inc. shall provide a report as a PDF, Microsoft Word, or Microsoft Excel format.
Article 8: Changes
8.1 If during the performance of the agreement it becomes apparent that for proper performance of the agreement it is necessary to change or add to the activities that are to be carried out, in due time and in consultation the parties shall amend the agreement accordingly.
8.2 If the parties agree that the agreement is to be changed or added to, this may affect the completion time of the performance. Fade Digital Inc. shall inform the Client of this as soon as possible.
8.3 If the changes or additions to the agreement have financial and/or qualitative consequences, Fade Digital Inc. shall be entitled to charge the Client for these costs. Fade Digital Inc. shall inform the Client of this in advance.
8.4 If a fixed fee has been agreed, Fade Digital Inc. shall state to what extent the change or addition to the agreement results in this fee being exceeded.
8.5 Notwithstanding paragraph 3, Fade Digital Inc. shall not be able to charge additional costs if the change or addition is the result of circumstances that can be attributed to it.
Article 9: Confidentiality
9.1 The parties have a duty to keep confidential all confidential information that they have obtained under this agreement from each other or from any other source, regardless of whether this is written or verbal and wherever it comes from. Information is deemed to be confidential if it has been disclosed by the other party or if it arises due to the nature of the information.
9.2 Fade Digital Inc. shall reserve the right to use the Client’s name as a reference and to disclose it as such.
9.3 The (personal) details that are supplied from the Client’s sites to Fade Digital Inc. shall be treated in confidence.
9.4 The web analytics and all other statistical data that are supplied by the Client or from the Client’s sites shall be treated in confidence.
Article 10: Exclusivity
10.1 For the term of the agreement and having regard to that provided for in the agreement the Client shall give Fade Digital Inc. the exclusive right to fulfill the assigned contract.
Article 11: Intellectual property
11.1 All copyrights and other intellectual property rights in respect of the services provided by Fade Digital Inc. shall rest with Fade Digital Inc.. The Client recognizes these rights and will not infringe them in any way.
11.2 All material provided by Fade Digital Inc., such as (digital) reports, checklists, advices, templates, designs, sketches, software, applications, landing pages etc., is intended solely to be used by the Client. The Client is not permitted to disclose and/or copy information obtained from Fade Digital Inc. in any form whatsoever, including the selling, processing, making available, distributing and integrating into networks, after processing or otherwise, unless such disclosure and/or copying has been permitted in writing by Fade Digital Inc. and/or such disclosure and/or copying arises due to the nature or the aim of the agreement with Fade Digital Inc..
11.3 All material provided by Fade Digital Inc. to fulfill the contract, such as documents, reports and optimized pages, shall remain the property of Fade Digital Inc.. On completion or on termination of the contract, Fade Digital Inc. may request the Client to remove from its website documents, reports, optimized pages and advices that have been provided or return them to it.
11.4 Fade Digital Inc. shall retain the right to use for other purposes the knowledge acquired for the performance of the activities, insofar as this does not involve confidential information of the Client being brought to the knowledge of third parties.
11.5 The Client shall indemnify Fade Digital Inc. against all claims from third parties in the matter of intellectual property rights regarding the publication of the texts, illustrations or other data provided to it by it or on its behalf. It will be the case between the parties that digital images of networks of third parties do not belong to the Client, unless the contrary is proven by the Client.
Article 12: The term of the contract and termination
12.1 The agreement shall be entered into for a period of 12 months unless the parties have agreed otherwise expressly and in writing.
12.2 An agreement for an indefinite period of time may be terminated by email or registered mail after a period of 3 months, subject to a notice period of 30 days.
12.3 Client agrees that, in the event the Client cancels all or part of the campaign contemplated prior to its agreed upon end date, the current month plus a $500 cancellation fee is due under this contract and will be immediately due and payable, and if paying by credit card, the Client’s credit card will be charged such amount, unless pre-paid in full, in which case the Client will forfeit any unused portion of the pre-payment.
12.4 An agreement for a fixed period of time may not be terminated prematurely.
12.5 An agreement for a fixed period of time shall always be renewed automatically after the expiry of the period stated in the contract for the same period, except in the case of termination by registered mail towards the end of the (extended) term of the contract and subject to a notice period of 2 months.
12.6 Furthermore, Fade Digital Inc. shall be entitled to terminate or end the agreement with immediate effect if: A) The Client has been declared bankrupt, or the Client has been granted a suspension of payments; B) The Client fails to meet its obligations under the agreement.
Article 13: Fee
13.1 All prices and cost estimates are exclusive of HST/GST or other applicable taxes, unless otherwise stated.
13.2 If a fixed fee is not agreed, the fee will be determined on the basis of actual hours worked, unless a performance based marketing fee applies. The fee will be calculated according to Fade Digital Inc.’s usual hourly rates, as applying in the period in which the activities are carried out, unless a different hourly rate has been agreed.
13.3 Prices shall be based among other things on factors applying at the time of the instruction or the effecting of the agreement or bid, including wages, social security costs and taxes, contributions, insurance premiums etc.
13.4 Fees for performance based services are calculated in accordance to Fade Digital Inc.’s proposal and agreed upon in writing by Client.
Article 14: Payment
14.1 Payment shall be within 14 days of the date of invoice, in a way to be indicated by Fade Digital Inc. and in the currency that has been invoiced.
14.2 After this deadline for payment of 14 days after the date of invoice has elapsed, the Client shall be in default without any further warning being necessary; from the time of entering into default the Client shall owe interest of 1% per month on the amount due, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply.
14.3 In the case of liquidation, bankruptcy or suspension of payments, Fade Digital Inc.’s claims and the obligations of the Client towards Fade Digital Inc. shall be payable on demand.
14.4 Payments made by the Client shall always be used first to settle all interest and costs that are due, second to settle invoices that are payable that have been outstanding the longest, even if the Client states that the settlement relates to a later invoice.
Article 15: Collection costs
15.1 If the Client is in default or in breach of meeting one or more of its obligations, then all reasonable costs to obtain payment, either in court or out of court, shall be paid by the Client.
Article 16: Liability
16.1 Fade Digital Inc. shall in no way be liable for damage suffered by the Client, such as for example (but not limited) for damage due to:
• errors in the advices, materials and/or automated files provided by Fade Digital Inc.;
• its reports, news sources, (deep) links or clippings no longer and/or not being available in due time at the time of monitoring;
• texts, illustrations or other data provided by or on behalf of the Client and/or wrongful use thereof by the Client;
• for the content of adverts or publications of other Clients or authors in the same or another edition, heading and/or elsewhere in the electronic service, which might be detrimental to the Client’s intended aim of his or her publication;
• the Client not following the advices provided by Fade Digital Inc.;
• the services offered by Fade Digital Inc. or the way in which the services are provided by Fade Digital Inc. being unauthorized;
• due to failures in the electronic services of Fade Digital Inc. and of third parties, such as providers, network operators or other telecommunications networks.
16.2 Fade Digital Inc. shall in no way be liable for consequential losses, indirect losses, trading losses or losses caused by auxiliary persons and/or third parties engaged by Fade Digital Inc. for the performance of the agreement.
16.3 If – notwithstanding the previous paragraphs – liability does however occur for Fade Digital Inc. at any time for losses suffered by the Client due to an attributable failure on the part of Fade Digital Inc. in meeting its obligations under this agreement, in all cases this liability shall be limited to at most the invoice amount for that specific part of the agreement to which the liability relates.
16.4 Losses for which Fade Digital Inc. is liable on the basis of the previous paragraph shall be eligible for compensation only if the Client has brought this to the attention of Fade Digital Inc. within 30 days of them occurring, unless the Client can demonstrate that it could not reasonably have reported these losses earlier.
16.5 Any complaint regarding the performance or the failure to perform any task must be submitted by the Client in writing to Fade Digital Inc. within 30 days after the occurrence of the loss, on forfeiture of any claim.
16.6 The Client shall indemnify Fade Digital Inc. in the matter of liability of third parties regarding losses of any kind, occurring due to or in connection with the performance of the agreement.
Article 17: Force majeure
17.1 Fade Digital Inc. shall not be liable in the event of force majeure. In these general terms and conditions force majeure is understood to be, in addition to that which is understood on the matter in law and case law, all external causes, expected or not expected, on which Fade Digital Inc. can have no influence, but as a result of which Fade Digital Inc. is unable to meet its obligations. Force majeure includes in any event: cessation, excessive absence of personnel due to sickness, a (temporary) shortage of manpower, fire, operating or technical faults in the office or in the external parties engaged by Fade Digital Inc., not having sufficient information available from the Client, in our opinion, or incorrect information being provided, or the Client not cooperating sufficiently.
17.2 In the event of force majeure Fade Digital Inc. shall be justified in deeming the agreement to be dissolved and/or dissolving it (partly or in full), or to cancel the placing contract without being obliged to pay the Client any compensation. In this case Fade Digital Inc. shall be obliged to inform the Client of this immediately.
17.3 If when the force majeure commences Fade Digital Inc. is able in part to meet its obligations, it shall be entitled to invoice separately for that part that has already been performed and/or can be performed, and the Client shall be obliged to settle this invoice as if it related to a separate agreement.
Article 18: Specific stipulations regarding search engine optimization (SEO)
18.1 Regarding search engine optimization (SEO) services, Fade Digital Inc. shall reserve the following rights: Fade Digital Inc. shall endeavor to perform the contract to the best of its ability. For the SEO service the aim is to achieve the highest possible quality mentions in the most used search engines, as required also with international search engines if this has been expressly agreed.
18.2 Fade Digital Inc. is obliged to make efforts to achieve the absolute score and if possible will endeavor to achieve a top 10 position. Fade Digital Inc. shall reserve the right to depart from this if words are involved that are difficult to position, spam, non-indexing of the search engine(s), a change or not indexing of the URL by the search engine due to technical aspects or specifications of the website or technical deficiencies.
18.3 Guarantees on positions to be achieved in the search engines are expressly not given by Fade Digital Inc..
18.4 (Statistical) data provided by or in the name of Fade Digital Inc. shall be purely indicative, unless expressly stated otherwise. The Client may not derive rights from this data.
18.5 Regarding the SEO service the Client declares expressly that it will abide by the (ethical) guidelines as made by search engines on the SEO service offered by Fade Digital Inc.. If actions are taken that conflict with this stipulation, the agreement shall be dissolved with immediate effect, without prejudice to Fade Digital Inc.’s right to recover from the Client the (consequential) loss it has suffered.
Article 19: Specific stipulations regarding search engine advertising (SEM)
19.1 Regarding search engine marketing (SEM) services, Fade Digital Inc. shall reserve the following rights: Fade Digital Inc. shall endeavor to perform the contract to the best of its ability. For the SEM service the aim is to achieve the highest possible quality mentions and results in the sponsored links/sponsored search results in accordance with search engines and advertising networks chosen by the Client and/or the connected networks and/or specific websites, with due regard to the maximum costs per click fixed with the Client and the total campaign budget for the agreed advertising period.
19.2 In providing the SEM service Fade Digital Inc. shall be bound to stipulations as made by the various partners in the area of SEA, including, but not solely, the usage agreements, guidelines and other restrictions. The Client understands this and declares that it is in agreement with the fact that the stipulations as referred to in the previous sentence apply to all agreements between the Client and Fade Digital Inc. regarding the SEM service, and that these stipulations may be changed at any time during the term of the agreement, notwithstanding the obligation on the part of the Client to abide by these stipulations.
19.3 (Statistical) data provided by or in the name of Fade Digital Inc. shall be purely indicative, unless expressly stated otherwise. The Client may not derive rights from this data. The Client declares expressly that it is aware of the fact that the number of visitors, clicks, page views and other similar statistical data concerning website visits and visitor behavior may vary by measuring instrument. Only in the case of significant differences in the statistical data collected by two or more measuring instruments shall Fade Digital Inc. be obliged to instigate an investigation into the nature of the differences and to adjust invoices that may have been based on this data.
Article 20: Assignment, changes and additions to the agreement
20.1 None of the parties shall be entitled to assign the rights and duties under this agreement without the written agreement of the other party. Changes and additions to this agreement shall be valid only if agreed in writing between the parties.
Article 21: Competent court and applicable law
21.1 All agreements between the parties and obligations arising from or related to them shall be governed by the laws of Canada.