Definitions
1.1 Customer: you or your company.
1.2 Lyfto: the online marketing company you want to become a customer of or have already become a customer of. Lyfto is a trade name of Groei met Data B.V. and is registered with the Chamber of Commerce under number 969 251 91.
1.3 Parties: the Customer and Lyfto; us together.
1.4 Service(s): the digital marketing service(s) to be provided by Lyfto.
1.5 Proposal: the document prepared by us, stating the costs for providing services to you.
1.6 Agreement: the document on which you give your approval for the services to be provided by us.
1.7 General Terms and Conditions: the General Terms and Conditions of Groei met Data B.V.
1.8 Confidential Information: all advice, materials (including equipment/software), documents, ideas, data, or other information provided or received that: a) relates to financial information, research and development, trade secrets, or business information of the other Party; b) is designated as confidential and entrusted to the other party in the context of the execution of this Agreement.
Applicability
2.1 These General Terms and Conditions apply to all Proposals and Agreements between Lyfto and the Customer.
2.2 We have the possibility to deviate from these General Terms and Conditions by mutual agreement. If we deviate from the Conditions, we will agree on this in writing.
2.3 As there cannot be two captains on one ship, Lyfto expressly rejects the Customer's purchasing terms.
The offer
3.1 Our offers, proposals, price lists, etc., are always without obligation, unless a specific term for acceptance is stated. We have the right to revoke our offer within 2 working days of your acceptance of the Proposal.
3.2 The prices we mention are always exclusive of VAT and any extra costs, including but not limited to travel expenses or invoices from engaged third parties.
3.3 Images and descriptions in the Proposal or on the website, in brochures, drawings, models, etc., are accurate, but it may occasionally happen that they are not correct. Therefore, no rights can be derived from them, unless we have agreed otherwise.
3.4 The images, brochures, drawings, models, etc., mentioned above are and always remain the property of Lyfto, unless we agree otherwise. For this reason, we would always like to have them back if we request them. We also do not like to see them provided to third parties.
3.5 The Agreement between Customer and Lyfto only comes into effect if Lyfto has confirmed it in writing.
3.6 In the event of a deviating acceptance by the Customer of an offer made by Lyfto, the agreement only comes into effect at the moment Lyfto explicitly and in writing informs the Customer that it agrees to this deviating acceptance.
3.7 All offers made by Lyfto to the Customer and Agreements entered into between the Customer and Lyfto are based on execution during Lyfto's normal working hours and circumstances. If work is required during overtime and/or under deviating circumstances, the costs thereof will be regarded as additional work. Lyfto is entitled to charge the Customer for these costs as such.
3.8 The Customer is obliged to provide Lyfto with the cooperation necessary for the execution of the Agreement.
3.9 When executing the Agreement, the Customer will provide Lyfto with all necessary facilities at its own expense, such as, but not limited to, electrical power, light, telecommunications facilities, and auxiliary materials.
3.10 If any delay in the delivery and/or execution of the Agreement arises on the part of Lyfto that directly or indirectly results from the Customer not providing the required cooperation as described in this article, Lyfto is always entitled to charge the associated costs and damages to the Customer.
3.11 Lyfto is entitled to engage auxiliary persons, including subordinates, for the execution of the Agreement. Any associated costs will only be borne by Lyfto if and insofar as the Customer could not reasonably have taken the engagement of a third party into account. The costs mentioned in this paragraph will only be borne by Lyfto insofar as the engagement of these auxiliary persons is not further described in the Agreement.
3.12 Unless otherwise agreed, the start date of the Agreement is considered the 1st day of the month for which the first invoice is sent by Lyfto.
Conclusion of the Agreement
4.1 If we agree, an Agreement will be drawn up by us. This Agreement is only valid when Lyfto confirms it in writing or if Lyfto has made a start with the execution with your consent.
4.2 Oral agreements also only apply when Lyfto confirms them in writing.
4.3 Changes or additions to the Agreement may always occur. These are binding as soon as the written confirmation from Lyfto has been received.
Execution of the Agreement
5.1 Lyfto does everything possible to deliver the best possible product to you as a Customer, but unfortunately, we cannot guarantee that the desired result will always be achieved.
5.2 Lyfto may engage other parties for certain activities in order to potentially achieve a proper execution of the Agreement.
5.3 We find it very important that the Agreement is executed as well as possible. Therefore, we also need some information and data from the Customer. If this data is not provided to us on time, we may charge you for any extra costs for delay. In addition, we may also choose to terminate the Agreement.
5.4 Lyfto cannot be held liable for any damage caused because the Customer has provided incorrect information. Of course, this does not apply if we could have been aware that this information was incorrect and unusable.
5.5 If we, or a third party engaged by us, have to perform work at the Customer's location, we will ensure that these desired facilities are reasonable and achievable.
5.6 It may occasionally happen that a third party suffers damage due to the execution of the Agreement. Lyfto cannot be held liable for this if this is (partly) attributable to the Customer.
5.7 As long as we work together, Lyfto has the exclusive authority to perform A/B tests with the aim of increasing the Customer's revenue.
5.8 There may be costs incurred for the work performed. We cannot pay these costs for you, and you will therefore have to pay them yourself, directly, to the relevant party. We are not responsible and/or liable for this.
5.9 Lyfto does everything possible to achieve the best results for your company, but unfortunately, we cannot give you the certainty that a concrete result will be achieved. For this reason, you as a Customer cannot derive any rights from such statements by us.
5.10 The Customer may not approach employees of Lyfto for direct employment with the Customer during and up to 24 months after the collaboration.
Terms for no cure no pay
6.1 The no cure, no pay arrangement is based on the revenue per website visitor, as measured by Lyfto's internal calculation tool based on the A/B test results.
6.2 If the revenue per website visitor, as determined by the internal calculation tool based on the A/B test results, has not increased within a period of six months after the start of the collaboration, Lyfto will continue to optimize free of charge until this increase is realized.
Adjustment of the agreement
7.1 Should we or you discover during the collaboration that an adjustment to the contract is necessary, we will adjust this in good consultation with each other.
7.2 It could happen that the deadline for completing the agreement is affected by this. We will, of course, let you know as soon as possible.
Contract duration and execution period
8.1 Lyfto's agreements are always entered into for an indefinite period, unless we jointly determine that this is not the appropriate term.
8.2 Our deadlines can never be seen as a hard deadline. Although we always do our utmost and set realistic deadlines, something can always happen that prevents us from meeting the deadline. If we do not fulfill our obligations or do not do so on time, you may give us a written notice of default.
8.3 Of course, we will inform you as soon as possible if we expect that we cannot fulfill the obligation within the stated period.
8.4 Lyfto may require a down payment or any other form of security from the Customer before proceeding with service provision.
Progress reporting
9.1 Lyfto is not obliged to start the execution of its assignment before all necessary data and any (installment) payment has been received. Any stated delivery periods will then be adjusted accordingly.
9.2 If our service provision does not proceed properly, through no fault of our own, we may charge you for the costs.
9.3 We report to you regularly, in writing or orally, on the progress and results of our work.
Fees
10.1 Parties shall record in writing whether the fee is fixed in advance or afterwards on the basis of actual hours spent.
10.2 If this has not been established in writing, Lyfto is authorized to determine the fee on the basis of actual hours spent.
10.3 If an agreement lasts longer than two months, we may also charge the fee on a monthly basis.
Confidentiality
11.1 We will keep everything secret from each other that can be classified as confidential. This concerns information that we have given to each other or that arises from the nature of the information.
11.2 Parties are not permitted to mention the fact that a business relationship exists or has existed between them in advertisements, promotional expressions, or otherwise within the framework of their marketing activities, except with the prior express written consent of the other Party.
11.3 Violation of the preceding paragraph makes the violating Party liable to pay the other Party a penalty of € 5,000 per violation, which is immediately due and payable without further notice of default, without prejudice to the right of the Parties to recover the full damage suffered by them from the violating Party.
Complaints
12.1 However much we regret it, it may happen that you have a complaint about Lyfto. Please let us know as soon as possible, preferably within 8 days of discovery or 14 days after the end of the agreement.
12.2 If the complaint is justified, we will immediately perform the correct work, unless this has become pointless for you. Should that be the case, we would like to receive a written confirmation of this.
Intellectual Property
13.1 Copyrights and other intellectual property rights regarding our services rest with Lyfto.
13.2 All delivered documents remain the property of Lyfto. We may therefore also ask you to destroy or return these documents when we terminate the agreement with each other.
13.3 In addition, it is unfortunately not permitted to disclose or reproduce these documents, or other information received from us, without our permission.
13.4 We are not liable for claims from third parties regarding intellectual property rights used in the execution of the Agreement.
13.5 Lyfto may use the knowledge gained during the execution of the work for you elsewhere, provided that no confidential information reaches third parties.
Liability
14.1 Lyfto will always ensure that it performs its task properly, but we cannot be held liable for damage, including death and personal injury, indirect damage, business damage, loss of profit, or stagnation damage, resulting from actions or omissions by us and/or our employees and/or engaged third parties, unless there is intent or conscious recklessness on the part of Lyfto, the management, or supervisory personnel.
14.2 Furthermore, we cannot be held liable for damage suffered by the Customer, for example, arising from errors in advice, materials, and/or automated files provided by Lyfto, or the reports no longer being available and/or not being available on time. This also applies, for example, to the Customer not following the advice provided, due to disruptions in the electronic services of Lyfto and third parties, such as search engines, providers, network operators, or other telecommunications networks.
14.3 If Lyfto is liable for anything, we can only compensate for this if the Customer has informed us of this in writing within 30 days of the damage occurring, unless it can be proven that the Customer could never have been aware of this earlier than 30 days. After this 30-day period, any right to compensation expires.
14.4 Our liability is limited to the net invoice value of the Agreement. If the invoice value includes an amount for the purchase of advertising space from a media operator, this amount naturally falls outside the invoice value.
14.5 Furthermore, we are never held to a compensation that exceeds the amount our insurance pays out, increased by the deductible.
14.6 The Customer also indemnifies us against liability from third parties regarding damage of any kind, arising from or in connection with the execution of the Agreement.
Payment
15.1 Without money, Lyfto cannot continue to exist. Therefore, it is important that you pay our invoices within 14 days of the invoice date, unless otherwise agreed.
15.2 If you have already provided advances to us, these can be set off against the invoices. All other payments are made without discount or set-off.
15.3 If you do not pay within the agreed term, you are unfortunately in default. This means that you owe us an interest of 1.5% per month that the invoice remains unpaid.
15.4 Unfortunately, it may occasionally happen that the Customer liquidates, goes bankrupt, or applies for a moratorium on payments. In that case, our claims are immediately due and payable.
15.5 Unfortunately, we are entitled to ask you to pay a full compensation for (extra)judicial collection costs in addition to the amount due if you do not fulfill the payment obligation. This includes costs for lawyers, bailiffs, and collection agencies and the statutory interest over the principal amount. The extrajudicial costs are set at at least 15% of the principal amount with interest, with a minimum of €300.
15.6 Lyfto is not bound to any performance as long as the Customer is in default.
15.7 For international customers outside the European Union, Lyfto may invoice in US Dollars (USD). All prices in Proposals are fundamentally calculated in Euros (EUR). If the exchange rate between the EUR and USD fluctuates by more than 3% between the date of the Proposal and the date of invoicing, Lyfto reserves the right to adjust the USD amount to reflect the current EUR value.
Retention of Title
16.1 Lyfto is the owner of the product, the items, and services until the Customer has paid for them.
16.2 Should we invoke the retention of title, for whatever reason, the Agreement between us will be dissolved, but we remain entitled to claim compensation for damages, lost profit, and interest.
16.3 If third parties assert rights to items subject to retention of title, the Customer is obliged to inform us of this.
Force Majeure
17.1 Sometimes there is a case of force majeure. Force majeure includes, for example: war, riot, mobilization, domestic and foreign disturbances, government measures, strike and lockout by workmen, disruption of the currency relations existing at the time of entering into the agreement, weather conditions, business disruptions due to fire, accident, or other occurrences and natural phenomena. These forms of force majeure can occur at Lyfto, but also at our suppliers or third parties we have engaged for the execution of the Agreement.
17.2 When a case of force majeure occurs, we may both suspend the execution of the Agreement and dissolve the Agreement, without having to compensate for any damage. However, the Customer will have to fulfill all its obligations to Lyfto up to that moment.
Data and Information
18.1. The Customer remains the entitled party to the data stored, edited, processed, or otherwise entered with the help of the service.
18.2. Lyfto is not obliged to check the accuracy and completeness of the data provided and is therefore not liable for the consequences of using incorrect and/or incomplete information provided by the Customer.
18.3. To enable an adequate execution of the agreement by Lyfto, the Customer will always provide Lyfto with all data and information reasonably requested by Lyfto in a timely manner.
Security
19.1 Parties are obliged to inform their employees or third parties hired by them at the start of the Agreement of the applicable regulations regarding information security. Parties undertake to instruct their personnel or third parties hired by them correctly and completely so that the aforementioned regulations are correctly complied with.
Transfer of Rights and Obligations
20.1. The Customer is not entitled to transfer rights and obligations to a third party without prior written consent from Lyfto. The consent as referred to above cannot be refused by Lyfto on unreasonable grounds.
20.2. Lyfto is entitled to transfer all rights and obligations acquired in the context of the agreement to third parties without any additional restriction. It will inform the Customer about this as soon as possible.
Termination and dissolution
21.1 Lyfto may always terminate the Agreement in writing.
21.2 Agreements for a fixed term are not prematurely terminable, except in the case of the points mentioned in article 21.6. Agreements for a fixed term will be automatically renewed without notice. Should either of us not want this, we will inform the other in writing 2 months before the end of the term.
21.3 If you have entered into an Agreement with us for an indefinite period, we are naturally very happy with you. Should this collaboration not proceed smoothly in one way or another, or you have seen enough of us, the collaboration can of course be terminated by both parties. This also requires one of us to inform the other 2 months in advance.
21.4 When the Customer terminates the Agreement prematurely, Lyfto has the right to request compensation due to the resulting loss of occupancy. We are naturally not entitled to this if you have terminated due to an attributable shortcoming on our part. After termination, we will provide the preliminary results of the work performed up to that point.
21.5 After termination, Lyfto will ensure that the work still to be performed is transferred to third parties.
21.6 Lyfto is authorized to suspend and/or dissolve the execution of the Agreement when the Customer:
21.6 a has been declared bankrupt or has filed an application for this;
21.6 b has applied for a moratorium on payments or it has been granted to him;
21.6 c has failed to fulfill his obligations or Lyfto has a reasonable suspicion that he/she will fail to do so.
Applicable law and competent court
22.1 Dutch law applies to the concluded Agreement at all times.
22.2 We naturally do not assume that we cannot always resolve a dispute together and will never stand before a judge. Should this happen, it will be discussed before a Dutch court.
