1. Defined Terms
1.1. Capitalized words in these terms and conditions (the "Terms") shall have the following means (except where the context otherwise requires):
Agreement: means the SOW, including these Terms;
Materials: means all artwork, copy, models, designs, photographs, software in connection with accounts and all other material created by EventTouch in connection with the Services;
Project: means the sum of all those individual task(s) to be performed by EventTouch in the delivery of the Services and which are as specified in detail in each SOW;
Rights: means any copyright, extended or revived copyright, design right, registered design right, patent, performer’s property right, trade mark, database right or any similar right exercisable in any part of the world, including any application for registration of any patent, trade mark, registered design or similar registerable rights in any part of the world;
Services: means those services EventTouch will perform for the Client and specified in the Schedule of Work in respect of the monthly retainer/project fee;
SOW: schedule(s) of Work, or SOW, means EventTouch’s detailed written description of each Project, as agreed with the Client from time-to-time;
Term: means the period from the Commencement Date until the termination of these Terms;
1.2. All other defined words or phrases shall have the meaning given to them when they first appear in that form.
1.3. References to any laws or statutory provisions include a reference to that law or statutory provision as from time to time amended, extended or re-enacted and to any subordinate legislation made from time to time under that provision.
2. Appointment and Term
2.1. The Client appoints EventTouch to carry out and EventTouch agrees to provide the Services to the Client in each SOW in accordance with these Terms.
2.2. Each SOW shall specify the Project(s) to be completed by EventTouch and include the project fee and disbursement costs.
2.3. The signing by each party of any such agreed SOW shall form a contract between the parties. Each SOW shall be governed by these Terms. If there is any conflict between these Terms and the terms of any SOW, the terms of the SOW shall take precedence.
2.4. These Terms shall come into effect on the "Commencement Date" detailed at the SOW, and continue in full force and effect for an unlimited period of time unless and until terminated for convenience by either party by giving of 3 months' notice in writing or in accordance with clause 12 below.
2.5. EventTouch shall in the discharge of its Services observe and comply with all regulations and reasonable directions from time to time made or given by the Client.
2.6. EventTouch shall provide the Services with reasonable care and skill and to the best of its ability.
3. Notice Periods
3.1. If the Agreement is terminated at any time by either party, EventTouch will continue to provide the Client with Services during the notice period on the terms and conditions of the Agreement.
3.2. The Client will remain liable to reimburse EventTouch for all fees, costs and expenses incurred by it in providing these Services during the notice period.
4. Remuneration
4.1. Unless otherwise stated in a specific SOW, the remuneration comprises a day rate for the provision of the Services. Any sums payable to EventTouch shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.2. Any disbursements need to be approved by the Client.
4.3. EventTouch may increase its charges on an annual basis with effect from 1 January of each year with the percentage equal to price increase measured by the Netherlands Consumer Price Index (2017 = 100).
4.4. All fees, costs and expenses stated in the Agreement or in any quotation, estimate or SOW will be denominated in € euros and exclude any applicable taxes (unless otherwise stated) which shall be payable by the Client at the rate prevailing from time to time.
5. Invoicing and Terms of Payment
5.1. Fees will be invoiced on a monthly basis, unless otherwise agreed.
5.2. EventTouch shall receive payment of all invoices within the terms stated in the SOW. If no specific payment terms have been agreed, the Client shall pay the invoices within 30 days of the date of the invoice.
5.3. EventTouch reserves the right to charge statutory interest on all invoices which remain unpaid after the due date.
6. Services & Co-operation
6.1. EventTouch will allocate suitable personnel (employee or 3rd party) with appropriate levels of experience and seniority to provide the Services. The Client acknowledges and agrees that EventTouch may replace its personnel providing the Services with alternative personnel at its sole discretion, provided that the Services shall not be negatively affected.
6.2. The Client will give EventTouch clear briefings and warrants that all the facts given about it, its products and services are accurate, while EventTouch will co-operate with the Client and use reasonable care and skill to make the Work as successful as is to be expected from a competent software services provider, undertaking the Services in question. The Client will provide to EventTouch in a timely manner all documents, information, items and materials in any form (whether owned by the Client or third party) reasonably required by EventTouch in connection with the Services and ensure that they are accurate and complete.
6.3. The Client will not enter into contract or commission work in respect of any work which is the same or similar to the Services provided by EventTouch or by any 3rd party companies, executives or staff introduced by EventTouch to the Client at any stage during the Term and a period of 3 years after termination of the Agreement, unless full written permission to do so is given by EventTouch on a case by case basis.
7. Intellectual Property Rights
7.1. All relevant Rights are and shall remain the exclusive property of the party owning them (or, where applicable, the third party from whom its right to use the Rights has been derived).
7.2. Each party shall grant or procure the grant of all such licenses to the other party to use any Rights as are necessary to allow the other party to exercise its rights and perform its obligations under the Agreement.
7.3. All Materials prepared by EventTouch (or by 3rd party companies, executives or staff working for EventTouch) will remain the property of EventTouch unless an alternative arrangement has been specified and agreed between the parties. The Client also acknowledges that it shall have no rights in any computer software used by EventTouch for the performance of the Services or the supply of Materials.
8. Confidential Information
8.1. The parties shall not disclose, without the other’s prior written permission, any confidential information either concerning the other’s business, its business plans, customers or associated companies.
8.2. Each party shall, upon request of the other party, impose obligations in terms equivalent to those in sub-clauses 8.1 on its own personnel and obtain written assurances from any third parties to whom confidential information has to be disclosed in order to enable a party to act in accordance with its obligations under the Agreement.
8.3. For the avoidance of doubt, the restrictions in the clause 8 shall not prevent;
a) the disclosure or use of confidential information in the proper performance of a party's duties, subject to clause 8.2;
b) the disclosure of confidential information if required by law;
c) the disclosure of confidential information which has come into the public domain otherwise than through unauthorized disclosure.
9. Termination
Either party may terminate (ontbinden) the Agreement forthwith by notice in writing to the other if the other party:
a) is in material breach of any of the terms of the Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
b) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or has a liquidator, receiver, administrator, manager, trustee or similar officer appointed over any of its assets; or ceases, or threatens to cease, to carry on business.
10. Survival of Obligations on Termination
10.1. On termination or expiry of the Agreement, the Client shall immediately pay to EventTouch all of the outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, EventTouch may submit an invoice, which shall be payable immediately on receipt.
10.2. The following clauses shall survive the end of the Term:
Clause 1 Defined Terms
Clause 7 Intellectual Property Rights
Clause 8 Confidential information
Clause 10 Survival of Obligations on Termination
Clause 11 Data Protection
Clause 13 Limitation of Liability
Clause 17 Non-solicitation
Clause 18 Miscellaneous
11. Data Protection
11.1. The parties shall adhere to all statutory requirements and rules of law in respect to the processing of personal data, among others the Dutch Data Protection Act (Wet bescherming persoonsgegevens) and the General Data Protection Regulation in due time.
11.2. Each party will immediately inform the other party of any actual or suspected security breach involving personal data.
11.3. The Client shall indemnify EventTouch for any third-party claims related to a breach of the clause.
12. Waiver
No whole or partial waiver of any breach of the Agreement shall be held to be a waiver of any other or any subsequent breach. The whole or partial failure of either Client or EventTouch to enforce at any time the provisions of the Agreement shall in no way be construed to be a waiver of such provisions nor in any way affect the validity of the Agreement or any part of it or the right of either party to enforce subsequently each and every provision.
13. Limitation of Liability
13.1. Nothing in the Agreement shall limit or exclude either party's liability for intent or gross negligence.
13.2. Subject to this clause 13, the aggregate liability of EventTouch, whether in contract, or otherwise, arising under or in connection with the Agreement shall be limited to the amount paid by the Client to EventTouch in connection with the Agreement during the 12 months prior to the action causing the damages.
13.3. Neither party shall be liable to the other in respect of indirect loss or damage including but not limited to loss of profit, loss or corruption of data, loss of goodwill or loss of reputation (without limiting the application of this clause the parties agree that loss of business to EventTouch resulting from a breach by the Client of clause 6.3 of the Agreement shall not constitute indirect loss).
13.4. EventTouch does not accept any liability whatsoever for activities or services of any 3rd party companies introduced to the Client.
14. Force Majeure
If due to war, strikes, industrial action short of a strike, import or export embargo, lockouts, accidents, fire, blockade, import or export embargo, flood, natural catastrophes or other obstacles over which EventTouch has no control (“Force Majeure”), EventTouch fails to perform any of its obligations under the Agreement, EventTouch shall not be held responsible for any loss or damage which may be incurred as a result of such failure and the client shall not be responsible for any fees during this period. Should the event of Force Majeure continue for longer than two months, the party adversely affected shall have the option of terminating the Agreement immediately without further liability other than such liabilities as have already accrued when the Term ends.
15. Severance
If any part of the Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of the Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
16. Notices
16.1. Any notice, invoice or other communication which either party is required by the Agreement to serve on the other party shall be sufficiently served if sent to the other party at its specified address in the SOW (or such other address as is notified to the other party in writing) as follows:
a) by hand; or
b) by registered or first class post or recorded delivery; or
c) by facsimile transmission or email.
16.2. Notices sent by registered post or recorded delivery shall be deemed to be served three (3) working days following the day of posting. Notices sent by facsimile transmission or email shall be deemed to be served on the day of transmission if transmitted before 4.00 p.m. on a working day, but otherwise on the next following working day. In all other cases, notices are deemed to be served on the day when they are actually received.
17. Non-solicitation
17.1. Client shall not, without the prior written consent of EventTouch, at any time from the date of the Agreement to the expiry of 3 years after the termination or expiry of the Agreement, solicit or entice away from EventTouch or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of EventTouch in the provision of the Services.
17.2. Any consent given by EventTouch in accordance with clause 17.1 shall be subject to the Client paying to EventTouch a sum equivalent to 50% of the then current annual remuneration of EventTouch's employee, consultant or subcontractor.
18. Miscellaneous
18.1. The Agreement shall be construed in accordance with and governed by Dutch law and both parties hereby irrevocably agree that the Courts of Amsterdam, the Netherlands shall have exclusive jurisdiction to resolve any controversy or claim of whatever nature arising out of or relating the Agreement or any alleged breach of it.
18.2. The Client cannot assign, transfer, charge, subcontract or deal in any other manner with any of its rights and obligations under the Agreement. EventTouch may at any time assign, charge or deal in any other manner with any or all of its rights under the Agreement.
18.3. No one other than a party to the Agreement shall have any right to enforce any of its terms.
18.4. The Agreement constitutes the entire agreement between parties and supersedes and extinguishes all other previous agreements, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.5. No variation of the Agreement shall be effective unless it is in writing and signed by the parties.
18.6. Any general terms and conditions of the Client have been excluded.