GENERAL TERMS AND CONDITIONS FOR ADVERTISERS
These general terms and conditions are from Wuzz BV located at (1823BR) Amsterdam, Herengracht 420, 1017 BZ, registered at the Chamber of Commerce under number: 32121709, hereinafter referred to as “Wuzzon.”
Article 1 Definitions
In these General Terms and Conditions, the following terms, indicated by a capital letter, have the following meanings:
- Action: the action to be performed by the consumer, for example, consisting of (i) installing an app, (ii) leaving personal data to receive information, (iii) requesting a product, or any other action agreed upon between the Advertiser and Wuzzon.
- Advertiser: the legal entity or natural person acting in the course of a profession or business with whom Wuzzon has concluded an Agreement;
- Advertiser’s Content: the text, visual materials, logos, apps, marketing materials, email or call files, and other materials used by the Advertiser as part of the Campaign;
- Advertisement: a banner, button game, or other (visual) material intended to promote the Advertiser and/or its products (including apps or games) or services, stimulating potential Leads to perform an Action;
- General Terms and Conditions: these general terms and conditions for Advertisers, regardless of the form in which they are communicated;
- Campaign: all activities, actions, and tasks of Wuzzon that are the subject of the Agreement;
- Intellectual Property Rights: all intellectual property rights and related rights, such as copyright, trademark rights, patent rights, design rights, trade name rights, database rights, and neighboring rights, as well as know-how rights;
- Lead Data: data of natural persons who have performed the agreed Action via the Advertisement;
- Media: the media agreed upon for the execution of the Campaign (including social media platforms such as Facebook and Instagram, websites, games, apps, newsletters, email files, or search engines) in which the Advertisement is included;
- Agreement: the agreement between the Advertiser and Wuzzon under which Wuzzon provides the Campaign for the Advertiser;
- Reporting: a report including the results of the Campaign, such as campaign or sales reports.
Article 2 Applicability of General Terms and Conditions
- These General Terms and Conditions apply to- and are part of all offers, quotations, agreements, and other legal acts related to the execution of a Campaign by Wuzzon for the Advertiser.
- Wuzzon expressly rejects the applicability of any general (procurement) terms and conditions of the Advertiser.
- Deviations from the General Terms and Conditions apply only if expressly agreed in writing by Wuzzon and the Advertiser.
- Wuzzon is entitled to amend the General Terms and Conditions. The modification will be announced to the Advertiser through the Wuzzon website or by other means. If the Advertiser does not accept the modification, the Advertiser may terminate the Agreement in writing on the date the modification becomes effective.
Article 3 Conclusion of the Agreement
3.1 All offers and quotations from Wuzzon are non-binding, unless otherwise indicated in writing by Wuzzon.
3.2 An Agreement is concluded when Wuzzon accepts an order from the Advertiser or, if earlier, from the moment Wuzzon carries out the Campaign. All orders placed by the Advertiser are binding and cannot be revoked. Wuzzon is entitled to refuse orders without being liable to the Advertiser. Refusal may occur, for example, if the content of the Advertisement or Advertiser’s Content infringes on third-party rights or is otherwise unlawful.
Article 4 Execution of Campaign
4.1 Wuzzon will exercise all due care in the execution of the Agreement, which can reasonably be expected of it. It will make its best efforts to execute the Campaign in accordance with the agreed specifications and terms. Agreed terms are always indicative and are never fatal.
4.2 Wuzzon gives no express or implied warranties, representations or indemnities of any kind. In particular, Wuzzon does not warrant that:
- Advertiser will achieve certain actions, turnover or (sales) results through the Campaign;
- The Campaign (including the Advertisements or the Media used) will work uninterrupted or be free of errors and/or defects;
4.3 Wuzzon may (temporarily) disable or restrict the Campaign, for example, for maintenance or adjustments. Wuzzon may also improve the Campaign and adjust it to the current state of technology and developments in the market. In these cases, the Advertiser has no right to compensation for damages or termination of the Agreement.
4.4 Wuzzon may use services (including Media) from third parties to execute the Campaign.
4.5 If, in the opinion of Wuzzon, the execution of the Agreement involves extra work, or if the Advertiser, or any third parties commissioned by the Advertiser, requests or causes extra work (for example, by providing incomplete/incorrect information), Wuzzon may charge the Advertiser for all additional time and costs, including those of third parties, and the Advertiser is obliged to reimburse them. Extra work is calculated based on Wuzzon’s standard (hourly) rate of 135 EUR, excluding VAT.
Article 5 Cooperation from the Advertiser
5.1 The Advertiser will always provide all necessary cooperation in the execution of the Agreement. The Advertiser will, among other things, provide all necessary data and information for the execution of the Campaign in a timely manner, including the Advertiser’s Content.
5.2 The Advertiser guarantees that the data referred to in 5.1 is correct and complete and does not infringe on any (intellectual property) rights of third parties, and that its use by Wuzzon is not unlawful.
5.3 The Advertiser is not entitled to transfer its rights or obligations under the Agreement to third parties or grant them to third parties, unless Wuzzon has given express written consent in advance.
5.4 If Wuzzon sets further guidelines or conditions for the execution of the Campaign and its use, the Advertiser will fully comply with and/or follow them.
5.5 If the Advertiser uses login details or other security measures in the context of the Campaign, it must handle them carefully. In the event of suspected misuse or theft, the Advertiser must immediately notify Wuzzon so that Wuzzon can block access to its services and systems and take other appropriate measures. The Advertiser is liable for all costs and damages related to the unauthorized use of the Campaign via its login details or other security measures.
5.6 During the term of the Agreement and for a period of one year after the termination of the Agreement, the Advertiser is not entitled to employ or engage employees or partners (including consultants, publishers and advisors) who, during the term of the Agreement, perform work for Wuzzon (for example, as an external consultant or advisor).
Article 6 Advertisements
6.1 Unless expressly agreed otherwise in writing, the Advertiser is responsible for the content of the Advertisement and the Advertiser’s Content used for it. The Advertiser must always verify whether the content of the Advertisement (and its consequences) is in line with the purpose of the Agreement.
6.2 The Advertisement must always comply with the specifications and requirements announced by Wuzzon. These specifications and requirements may change during the duration of the Agreement. Wuzzon will notify the Advertiser in a timely manner of such a change.
6.3 Wuzzon reserves the right at all times to refuse, remove, not further distribute or modify an Advertisement and/or the Advertiser’s Content, without prior notice, without the Advertiser being entitled to any form of compensation or dissolution of the agreement. Wuzzon will inform the Advertiser of this as soon as possible. This can happen, for example, if Wuzzon suspects that the content of the Advertisement is unlawful and/or infringes on the (intellectual property) rights of third parties.
6.4 Only if expressly agreed in writing, will Wuzzon compile the Advertisement. As part of the delivery of this Advertisement, Wuzzon may request that the Advertiser review the Advertisement. If Wuzzon makes such a request, the Advertiser must inform Wuzzon of any changes in writing or by email within 2 (two) working days of receiving the request. The changes can only relate to factual inaccuracies in the text of the Advertisement. Any other changes will be charged to the Advertiser by Wuzzon at the standard hourly rate.
The Advertisement will be deemed to have been accepted by the Advertiser if:
- The Advertiser has not submitted a request for amendment to Wuzzon within the period of 2 (two) working days mentioned in this article; or
- Wuzzon has modified the proposed changes by the Advertiser mentioned in this article.
Article 7 Use of Media
7.1 Wuzzon will make every effort to include the Advertisement in the agreed Media. However, Wuzzon is always entitled to immediately and without prior consultation discontinue or refuse the use of certain (agreed) Media, without being liable to the Advertiser for damages. Refusal may occur, for example, if Wuzzon suspects that the use of the Media is unlawful. Wuzzon will inform the Advertiser of this as soon as possible.
7.2 If agreed in writing, Wuzzon will use email files from the Advertiser, Wuzzon or its affiliated (Media of) publishers and/or affiliate partners for the distribution of the Advertisement.
7.3 The distribution of the Advertisement via the email files is at the sole risk and expense of the Advertiser. The Advertiser is aware and agrees that Wuzzon is not responsible or liable for the distribution of the Advertisement in this way, nor for any claims, complaints, claims and other consequences that may arise from it.
7.4 The Advertiser warrants that the use of its email file for the distribution of the Advertisement is in compliance with applicable laws and regulations, including in particular the Telecommunications Act and the Personal Data Protection Act. If an email recipient requests to be unsubscribed from Advertiser’s Advertisements, the Advertiser will immediately notify Wuzzon of the request in writing or by email. Wuzzon will do its utmost to process the request of the relevant recipient in its email file (and in any other Media files if any).
7.5 In exceptional cases and only if agreed upon, Wuzzon provides an overview of the Media used in the Campaign. The Advertiser shall keep this information confidential at all times and use it solely within the context of the agreed Campaign. During the duration of the Campaign and for a period of one year after its conclusion, the Advertiser grants exclusivity to Wuzzon with regard to the Media, meaning that the Advertiser shall not directly or indirectly (for example, through another media company, partner, or competitor of Wuzzon) enter into an agreement with the Media for the promotion of the Advertiser and/or its products and services.
Article 8 Lead Data and Actions
8.1 Only if agreed upon in writing, Wuzzon will provide Advertiser with a file containing Lead data in the context of the Campaign. With regard to this Lead data, Wuzzon provides no guarantee, and it does not warrant that this Lead data is accurate, correct, complete, up-to-date, or lawful.
8.2 Advertiser must check the results of the Actions (including the received file with Lead data) for a given month by the 9th of the following month at the latest. In case of rejection, Advertiser must send an email to email@example.com by the 9th with the gross received leads, the number of rejections, and the net numbers for billing. Rejection reports and the reason for rejection per lead must be placed on Wuzzon’s FTP server. Results of the Action that have not been rejected within the term mentioned in this article or have not been passed on via the tools designated by Wuzzon are deemed to have been accepted by Advertiser and will be invoiced.
8.3 Rejection can only take place if:
- there is a specifically agreed upon reason for rejection in writing;
- the same person has performed the same Action two or more times (for example, has performed the same installation twice or has left their Lead data twice);
- the data is incorrect, resulting in a hard bounce from a mailing;
- there is fraud, for example, by the Media used in the Campaign. Fraud only exists if the Advertiser can demonstrate it through a fraud report or fraud software from a reliable and competent third party, indicating that fraud has occurred through one of the Media.
8.4 If Wuzzon provides Lead data as a result of the Action, Advertiser is only authorized to use the Lead data for the purpose agreed upon in writing in the Agreement and will comply with all agreed-upon conditions, restrictions, and powers from the Agreement (including these General Terms and Conditions). This also includes, but is not limited to, conditions and restrictions regarding the agreed-upon purpose, frequency, medium (email, telephone, post, or otherwise), and duration. Advertiser is expressly prohibited from making the Lead data public, reproducing it in whole or in part, or using it for other purposes outside the agreed-upon conditions and powers, in any way whatsoever.
8.5 Advertiser guarantees that it will not use the Lead data in such a way that it violates applicable laws and regulations (including the General Data Protection Regulation ‘GDPR’ and laws and regulations on email marketing and telemarketing) or that it harms the good name of Wuzzon in any other way.
8.6 If persons from the file containing Lead data request Advertiser to block, view, or delete their (personal) data, Advertiser will immediately comply with the request and inform Wuzzon of the request. Advertiser will always do its utmost to establish the identity of the requester before notifying Wuzzon. Advertiser also guarantees that it will immediately remove the Lead data designated by Wuzzon (including but not limited to, data from people who have filed a complaint with Wuzzon) from the file containing Lead data it uses and cease and desist from any further use.
8.7 Wuzzon is entitled (but not obliged) to add test addresses to the Lead data with which unauthorized use can be detected. If the use of these test addresses shows that the Advertiser does not comply with the Agreement (including these General Terms and Conditions), the full proof of its attributable failure has been provided, unless evidence to the contrary is provided by the Advertiser.
8.8 If the Advertiser acts in violation of articles 5.6, 7.4, 7.5, 8.4 till 8.6, 9.11 and 14, he will automatically incur, by operation of law, a contractual penalty to Wuzzon that is not subject to moderation or set-off, amounting to € 15,000,– (fifteen thousand euros) per violation and for each day or part thereof that the non-compliance continues, without prejudice to Wuzzon’s right to compensation for the damage suffered and to be suffered by it and without prejudice to any other right it may have.
8.9 If Wuzzon suspects that the use of the Lead data by the Advertiser violates article 8.4 t/m 8.6 or 9.11, it is entitled to revoke the right of use mentioned in article 8.4 without being liable for damages to the Advertiser. The Advertiser shall destroy the (relevant) Lead data and cease using it within two working days after receiving Wuzzon’s notice that the right of use has been revoked.
Article 9. Processing of Personal Data
9.1 If Wuzzon processes personal data in the context of the Agreement (for example, in generating Lead data or using the file of email addresses received from the Advertiser), Wuzzon acts as a processor and the Advertiser as a data controller of the personal data within the meaning of the GDPR. Advertiser warrants that it is authorized to have Wuzzon process (and therefore use) the personal data used in the Campaign, and that this processing is not unlawful.
9.2 Wuzzon will only process personal data if necessary to fulfill its obligations under the Agreement. Other processing will only be carried out after receipt of a written instruction from the Advertiser or if there is a legal obligation to do so. Wuzzon will not retain personal data longer than necessary for the performance of its obligations under the Agreement.
9.3 Wuzzon will implement appropriate technical and organizational measures to secure personal data against loss or any form of unlawful processing. These measures guarantee, taking into account the state of the art and the costs of implementation, an appropriate level of security with regard to the risks involved in the processing and the nature of the data to be protected. The measures are also aimed at preventing unnecessary collection and further processing of personal data.
9.4 Upon written request from the Advertiser, Wuzzon will provide the Advertiser with information about the processing of personal data, including the security measures taken, and will grant the Advertiser or an accredited auditor appointed by the Advertiser access to its systems within a reasonable time frame to verify whether Wuzzon is complying with the security obligations set out in Article 9.3. Such inspection will always take place during normal business hours. The costs for the inspection will be borne by the Advertiser.
9.5 Wuzzon will do its utmost to provide reasonable cooperation in carrying out the checks referred to in Article 9.4. It will also provide all reasonable cooperation to the Advertiser in fulfilling its obligation to respond to requests from data subjects regarding the exercise of the rights laid down in the GDPR.
9.6 With the written consent of the Advertiser, Wuzzon is authorized to engage one or more sub-processors in the processing of personal data. Wuzzon will enter into an agreement with these sub-processors in which all relevant obligations from this Agreement and the GDPR will be taken over. Advertiser gives permission to engage the Media agreed upon in the Agreement as a sub-processor.
9.7 Wuzzon will inform the Advertiser as soon as possible but no later than 24 hours after a breach or serious attempt to breach is discovered, of breaches of the security measures taken by Wuzzon or a sub-processor it has engaged, if it can reasonably be assumed that this breach leads to a significant risk of loss or unlawful processing of personal data that could have adverse consequences for such personal data and the privacy of the data subject.
9.8 The notification referred to in Article 9.7 will contain relevant information regarding (i) the nature of the breach, (ii) the identified and likely consequences of the breach for the processing of personal data, and (iii) the measures that will be taken to put an end to or mitigate the effects of the breach.
9.9 Wuzzon will maintain confidentiality regarding all personal data processed on behalf of the Advertiser in the context of the Agreement. Wuzzon will not make the personal data available to third parties (other than subprocessors), unless it is required to do so on the basis of relevant laws and regulations or a judicial ruling.
9.10 Unless Wuzzon has obtained prior consent from the Advertiser, Wuzzon will not process or have processed personal data by itself or by subprocessors in countries outside the European Economic Area (“EEA”) without an appropriate level of protection.
9.11 The Advertiser guarantees that the use of personal data does not:
(i) harm the privacy interests of the persons from whom the personal data originates;
(iii) harm the good name of Wuzzon.
Article 10. Retargeting and cookies
10.1 If agreed in the context of the Campaign, cookies or similar technologies will be used, including conversion, analysis, or retargeting/tracking technologies/cookies. These technologies can be used to track internet users across different websites and/or to measure the conversion of the Advertisement.
10.2 Advertiser is aware and agrees that the use of these cookies and technologies falls under the cookie provision laid down in Article 11.7A of the Telecommunications Act (‘Tw’) and the European e-Privacy Regulation. Advertiser guarantees that the use of these technologies is in line with the Tw and the e-Privacy Regulation and that it obtains proper consent from visitors to its website.
Article 11 Intellectual property
11.1 The Intellectual Property Rights to all documentation, software, reports, Advertisements, and all other materials developed and/or used for the preparation or execution of the Campaign, or arising from it, belong exclusively to Wuzzon or its licensors. During the Agreement, Wuzzon grants Advertiser a non-exclusive and non-transferable right to use the intended materials as well as the results of the Campaign within its own company and for the agreed-upon objectives.
11.2 The Intellectual Property Rights to the Advertiser’s Content made available to Wuzzon in the context of the Agreement remain the property of the Advertiser or its licensors. Advertiser grants Wuzzon an unlimited and unconditional right to include the Advertiser’s Content in the Advertisements and the agreed-upon media and to otherwise use it for the performance of the Agreement.
11.3 Advertiser warrants that the materials provided by it do not infringe any third-party rights and that it is authorized to provide these materials to Wuzzon.
11.4 Advertiser may not remove indications of intellectual property rights holders. The same applies to notifications that certain information is confidential.
Article 12 Compensation
12.1 All compensation is exclusive of VAT and stated in Euros.
12.2 Compensation may consist of one-time or periodically (e.g. monthly) payable amounts and amounts that depend on the use or size of the (results of the) Campaign (such as number of views, clicks, installs, calls or Lead data).
12.3 Wuzzon is entitled to index prices and compensation once a year in accordance with the consumer price index of the Central Bureau of Statistics.
12.4 In addition to the above, Wuzzon and the Advertiser may change prices, models and compensation during the Agreement, for example, if countries are added or the content of the service changes. The changes can be agreed upon by email.
12.5 The administration of Wuzzon is leading in the calculation of the amount of compensation.
12.6 In deviation from Article 12.5, if the compensation to be charged by Wuzzon depends on data from the administration of the Advertiser, the Advertiser must provide this data to Wuzzon within 9 days after the end of the month. In case of doubt about the accuracy of this data, Wuzzon is entitled to file a complaint with the Advertiser and to have access to the relevant books and records of the Advertiser. The Advertiser shall grant Wuzzon access to these books and records within 2 working days after receiving a request from Wuzzon. Wuzzon is entitled to make copies of these for its own administration.
Article 13 Payment
13.1 Wuzzon is always entitled to request advance payment of the fees.
13.2 For determining the amount of due compensation, the data from Wuzzon’s administration are leading.
13.3 Payment must be made within 14 days of the invoice date.
13.4 If the Advertiser fails to pay any invoice from Wuzzon within the payment term, they will automatically be in default, without notice of default or summons being required. The Advertiser is then liable for interest on the invoice amount of 1% per month, with a part of a month being considered a full month.
13.5 If the Advertiser remains negligent in paying the due amount, increased with the legal interest, after being given notice of default, Wuzzon may hand over the claim for collection. In that case, the Advertiser is obliged to pay, in addition to the principal amount and the legal interest due, the compensation for all extrajudicial and possibly judicial costs, expressly in addition to the costs determined in court. The amount of the extrajudicial costs is at least 15% of the principal sum, with a minimum of €250.
13.6 Any reliance by the Advertiser on suspension, set-off, or deduction is excluded.
Article 14 Confidentiality
14.1 Parties will fully keep confidential all confidential information they receive from the other party. Confidential information includes at least the methods and techniques underlying the Service, the advice provided by Wuzzon to the Advertiser, and the customer data of the Advertiser. Parties also impose this obligation on their employees and third parties engaged by them to perform the agreement between the parties.
14.2 Information is considered confidential, in any case, if it has been designated as such by one of the parties.
Article 15 Wuzzon’s Liability:
15.1 Wuzzon is not liable for damage suffered by the Advertiser unless such damage has been caused by an attributable failure in the performance of the Agreement by Wuzzon, in which case Wuzzon is solely liable for the direct damage up to the maximum amount of the fee agreed for the relevant Agreement. In no event shall the total compensation amount to more than €5,000 per event, with a series of events being considered as one event.
15.2 Direct damage only refers to the costs that the Advertiser reasonably had to make to repair or eliminate Wuzzon’s shortcoming so that Wuzzon’s performance would comply with the Agreement, reasonable costs to prevent or limit such damage, and reasonable costs to establish the cause and extent of such damage.
15.3 Wuzzon’s liability for indirect damage, including but not limited to consequential damage, loss of profit, and loss of turnover, is excluded.
15.4 The limitation of liability included in this article does not apply to damage attributable to Wuzzon’s intentional or grossly negligent actions or its personnel.
15.5 The Advertiser fully indemnifies Wuzzon against all damages, fines, and costs (including damages resulting from claims by third parties) arising in any way from and/or related to the actions of the Advertiser or the third parties engaged by them in violation of the Agreement, the General Terms and Conditions, and/or the relevant laws and regulations.
15.6 If and to the extent that a supervisory or judicial authority takes measures (including but not limited to fines, suspension of the Campaign or Wuzzon’s business, or the imposition of injunctions or orders) against Wuzzon as a result of the Advertiser’s violation of the Agreement, the General Terms and Conditions, and/or the relevant laws and regulations, the Advertiser shall fully compensate Wuzzon for all resulting damages, fines, and costs.
15.7 Article 15.5 and 15.6 do not affect any other rights belonging to Wuzzon, including the right to terminate the Agreement.
Article 16 Duration of the agreement
16.1 The Agreement is entered into for the agreed duration. After that, the Agreement is automatically extended for a period of three months, unless the Agreement is terminated in writing by one or both parties no later than one (1) month before the start of the follow-up period.
16.2 Wuzzon may suspend the performance of the Agreement in whole or in part if the Advertiser fails to fulfill its obligations under the Agreement, or if Wuzzon has reasonable grounds to believe that the Advertiser will not be able to fulfill its (payment) obligations, without prejudice to any other rights of Wuzzon. Once the Advertiser fulfills the Agreement and/or provides sufficient security for the fulfillment of its obligations, Wuzzon will lift the suspension.
16.3 Without prejudice to all other rights, the parties are entitled to terminate the Agreement in whole or in part without judicial intervention and without notice with immediate effect if the other party:
- has applied for suspension of payment or if such suspension of payment has been granted to it;
- has been declared bankrupt or if a bankruptcy petition has been filed.
16.4 Termination, suspension or dissolution of the Agreement does not release the Advertiser from its obligation to pay for all work and activities already performed by Wuzzon, which will be invoiced by Wuzzon and immediately due and payable. Amounts invoiced by Wuzzon in connection with what it has already performed or delivered in implementation of the Agreement will become immediately due and payable at the time of termination.
16.5 Provisions that are intended by their nature to survive termination of the Agreement shall remain in force after termination.
16.6 Immediately after termination of the Agreement, for whatever reason, the Advertiser shall cease using the Campaign and shall destroy or return all materials made available by Wuzzon in the context of the Campaign.
Article 17 Final provisions
17.1 If any provision of these General Terms and Conditions is void or otherwise unenforceable, the other provisions shall remain in full force and effect. Wuzzon is entitled to replace the void or otherwise unenforceable provision with a comparable provision that is enforceable and not void.
17.2 Wuzzon is entitled to transfer its rights and obligations under the Agreement, in the context of a transfer of its business, to a third party.
17.3 If these General Terms and Conditions have once been applicable to a legal relationship between Wuzzon and the Advertiser, the Advertiser shall be deemed to have agreed in advance to the applicability of the General Terms and Conditions to Agreements concluded and to be concluded thereafter.
17.4 Dutch law applies to the Agreements. All disputes arising from or related to the Agreements shall be exclusively submitted to the competent court in Amsterdam.