Terms & Conditions

Article 1: General

These general terms and conditions are the terms and conditions of ADVantage Marketing Limited, hereinafter referred to as: “ADVantage Marketing”, having its registered office in Suite 2301, 23/F., Comweb Plaza, 12 Cheung Yue Street, Cheung Sha Wan, Kowloon, Hong Kong..

Article 2: Applicability

These general terms and conditions apply to all services and agreements between ADVantage Marketing (hereinafter referred to as “we”, “us” or “our”) and the client (hereinafter referred to as “client” or “you”), unless otherwise agreed in writing.

The parties have the option to deviate from these terms and conditions. Such conditions to the contrary shall only form part of the agreement concluded between the parties if and insofar as both parties have expressly agreed to this in writing.

The applicability of any purchase conditions or other conditions of the Client is expressly excluded.

The acceptance and retention by the Client without comment of a quotation or order confirmation on which reference has been made to these terms and conditions shall be deemed to be agreement to their application.

The possible inapplicability of (part of) a provision of these general terms and conditions shall not affect the applicability of the remaining provisions.

Article 3: Conclusion of the contract

If an offer by ADVantage Marketing is accepted, then the contract is only concluded after written confirmation by ADVantage Marketing, or when ADVantage Marketing has begun to carry out acts of execution with the consent of the client.

Verbal agreements do not bind ADVantage Marketing until they have been confirmed in writing by ADVantage Marketing.

Additions or changes to the general terms and conditions or otherwise changes or additions to the agreement become binding only after written confirmation by ADVantage Marketing.

Article 4: Offers

All offers, quotations or quotations from ADVantage Marketing are without obligation and lapse automatically after a period of 30 days, unless ADVantage Marketing ceases to stand by the offer and/or quotation and/or quotation within that period or unless ADVantage Marketing indicates otherwise at the time the offer, quotation or quotation is made. If a quotation and/or offer contains an offer without engagement and this offer is accepted by the Client, ADVantage Marketing is entitled to revoke the offer within 5 working days after receipt of the acceptance.

The prices charged by ADVantage Marketing as well as the prices mentioned in the offers, quotations, quotations etc. are exclusive of VAT and any costs. These costs may include – but are not limited to – travel expenses, transport costs and invoices from third parties.

Illustrations and descriptions in offers and on the website of the user, brochures, catalogs, drawings, models, statements of colors, dimensions as well as other data or descriptions, are as accurate as possible, but are only indicative. No rights may be derived from these, unless the parties have expressly agreed otherwise in writing.

The images, brochures, catalogs, drawings etc. mentioned in the previous paragraph of this article and the intellectual property rights vested in them remain the property of ADVantage Marketing at all times, unless the parties have expressly agreed otherwise in writing. They must be returned at the first request of ADVantage Marketing. They may not be reproduced or given to third parties for inspection without the written consent of ADVantage Marketing.

Quotes do not automatically apply to future orders.

ADVantage Marketing cannot be held to its quotations or offers if the client should reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.

Article 5: Execution of the Agreement

ADVantage Marketing shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.

If and insofar as the proper execution of the agreement requires it, ADVantage Marketing is entitled to use third parties for certain work.

The Client shall ensure that all data that ADVantage Marketing indicates to be necessary or that the Client should reasonably understand to be necessary for the performance of the agreement is provided to ADVantage Marketing in a timely manner. If the data required for the execution of the agreement is not provided to ADVantage Marketing in time, ADVantage Marketing shall be entitled to suspend the execution of the agreement or to charge the Client for the additional costs resulting from the delay at the usual rates.

ADVantage Marketing shall not be liable for damages of any nature whatsoever caused by ADVantage Marketing’s reliance on incorrect or incomplete data provided by the Client, unless ADVantage Marketing should have been aware of such incorrectness or incompleteness.

If ADVantage Marketing or third parties engaged by ADVantage Marketing perform work in the context of the order at the client’s premises or at a location designated by the client, the client shall provide the facilities reasonably requested by those employees free of charge.

The client shall indemnify ADVantage Marketing against any claims by third parties who suffer damage in connection with the performance of the agreement and whose cause is attributable to parties other than ADVantage Marketing. If ADVantage Marketing is sued by a third party for this, the client is obliged to assist ADVantage Marketing both extra-judicially and judicially and to do immediately everything that can be expected of the client in that case. Should the client fail to take adequate measures, ADVantage Marketing shall be entitled, without notice of default, to do so itself. All resulting costs and damages on the part of ADVantage Marketing and third parties shall be for the account and risk of the client.

Article 6: Modification of the agreement

If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement the work to be done, parties will timely and in mutual consultation adjust the agreement accordingly.

If the parties agree that the agreement is amended or supplemented, the time of completion of the execution may be affected as a result. ADVantage Marketing shall notify the client as soon as possible.

If the change or supplement to the agreement has financial consequences, ADVantage Marketing shall inform the client in advance.

If a fixed fee has been agreed ADVantage Marketing shall indicate to what extent the change or supplement to the agreement will result in an increase of this fee.

Article 7: Contract duration and execution period

Agreements are entered into for a fixed term of 12 months unless the parties agree otherwise in writing. After expiration of the initial contract term, agreements are automatically renewed for the same term.

Stated deadlines for completion of an order can never be considered as a deadline, unless the parties have expressly agreed otherwise in writing. If ADVantage Marketing fails to fulfill its obligations under the contract or fails to do so on time, it must therefore be given written notice of default.

If ADVantage Marketing does not expect to fulfill its obligations within the given deadline, it shall notify the client as soon as possible.

ADVantage Marketing is authorized – with respect to the fulfillment of financial obligations of the client – to require advance payment or security from the client before proceeding with the provision of services.

Exceeding a delivery deadline by ADVantage Marketing as referred to in article 9.2 of this article does not qualify as a failure attributable to ADVantage Marketing and does not justify the dissolution of the agreement by the Client, nor does it mean that ADVantage Marketing is liable for compensation for any damage suffered by the Client as a result of the actual extended delivery deadline.

Article 8: Progress of the agreement

ADVantage Marketing cannot be obliged to begin executing the order until it has all the necessary data in its possession and has received any agreed (instalment) payment. If delays arise as a result, the given delivery times and agreed contract duration will be adjusted proportionally and ADVantage Marketing is entitled to suspend work, without prejudice to the obligation of the client to fulfill its (payment) obligations.

If the provision of services cannot take place normally or without interruption for reasons beyond ADVantage Marketing’s control, ADVantage Marketing is entitled to charge the client for the resulting costs.

8.1. Software

The client is responsible for providing the necessary (integrator) software on which ADVantage Marketing can perform the offered services, at its own expense.

8.2. Fee

ADVantage Marketing and the client jointly agree on a fixed monthly fee for the work to be performed.

If the fee has not been fixed in writing, ADVantage Marketing is authorized to fix it on the basis of its usual (hourly) rates, valid for the period in which the work has taken place.

8.3. Confidentiality

Both parties are obliged to keep confidential all confidential information that they have obtained from each other or from other sources in the context of the agreement. Information is considered confidential if this has been communicated by the other party or if it arises from the nature of the information.

The client shall not copy or otherwise make the confidential information available to third parties, except with the prior written consent of ADVantage Marketing.

The Client shall not use the Confidential Information for any purpose other than that for which it was provided by ADVantage Marketing and shall not apply it in any manner other than that specified by ADVantage Marketing. The Client shall not alter any documents or items containing ADVantage Marketing’s confidential information.

The Client is obligated to bind in writing its employees, agents and subcontractors who – necessarily – become aware of the confidential information to the same obligations of confidentiality as the Client, prior to obtaining confidential information.

In case of violation of one or more obligations of this article, the Client shall owe ADVantage Marketing an immediately payable fine of € 5,000.00 per violation for each day that a violation continues. This penalty shall not affect ADVantage Marketing’s right to full compensation in accordance with the law.

The provisions of this article remain in force even after termination or dissolution of the agreement.

Article 9: Complaints

Complaints about work performed must be reported in writing by the Client to ADVantage Marketing within 15 days of discovery, but no later than 30 days after completion of the work in question, failing which the Client shall be deemed to have fully accepted the result of the assignment. The notice of default must contain as detailed a description of the shortcoming as possible, so that ADVantage Marketing is able to respond adequately.

If a complaint is well-founded, ADVantage Marketing shall still perform the work as agreed, unless this has become demonstrably useless for the client. The client must make this known in writing.

If the agreed work is no longer possible or useful, ADVantage Marketing shall only be liable within the limits of article 14.

Lodging a complaint never suspends the payment obligations of the client.

If a complaint is reported later than the stipulated deadline, the Client is no longer entitled to processing the complaint or compensation.

If it is established that a complaint is unfounded, the costs incurred by ADVantage Marketing, including the research costs, shall be borne entirely by the client.

Article 10: Intellectual Property

All copyrights and other intellectual property rights relating to the services provided by ADVantage Marketing are vested in ADVantage Marketing. The client acknowledges these rights and will refrain from any infringement thereof.

All documents provided by ADVantage Marketing are for the sole use of the client. The client is not permitted to disclose or reproduce information obtained from ADVantage Marketing in any form unless such disclosure is authorized in writing by ADVantage Marketing.

All documents provided by ADVantage Marketing to fulfill the project remain the property of ADVantage Marketing. Upon expiration or termination of the contract, ADVantage Marketing may request the Client to destroy or return these documents.

The Client indemnifies ADVantage Marketing against all claims by third parties regarding intellectual property rights on the information and documents provided by it to ADVantage Marketing, which are used in the fulfillment of the contract.

ADVantage Marketing reserves the right to use the knowledge acquired during the execution of the work for other purposes, provided that no confidential information of the client is disclosed to third parties.

Article 11: Liability

The client guarantees the accuracy and completeness of the data provided by the client to ADVantage Marketing within the framework of the formation and implementation of the agreement and shall always inform ADVantage Marketing immediately in writing of any changes to the data provided. ADVantage Marketing is not liable for claims from the client and/or third parties that are the result of or are related to incorrect and/or incomplete data supplied to ADVantage Marketing by the client, or to changes in the data supplied that are not reported to ADVantage Marketing in a timely manner by the client. Any liability of ADVantage Marketing as well as its employees and any persons engaged by ADVantage Marketing in the performance of the order shall be limited to the amount paid out in the case in question under ADVantage Marketing’s professional/company liability insurance, including the excess to be borne by ADVantage Marketing.

In the event that ADVantage Marketing’s professional/company liability insurance referred to in this article does not provide coverage in a specific case, ADVantage Marketing’s liability, as well as that of its employees and any persons engaged by ADVantage Marketing in the performance of the order, shall be limited to a maximum of the total fees received by ADVantage Marketing for the three months preceding the event causing the damage. This limitation of liability applies per year, regardless of the number of incidents causing damage.

The client indemnifies ADVantage Marketing against any claims by third parties, who suffer damage in connection with the execution of the agreement and whose cause is attributable to the client.

ADVantage Marketing shall never be liable for damage suffered by the Client or third parties as a result of incorrect, incomplete or untimely information provided by the Client.

ADVantage Marketing shall never be liable for any damage resulting from errors in software or other computer programs used by ADVantage Marketing.

ADVantage Marketing shall never be liable for any damage whatsoever resulting from the fact that (email) messages sent by the Client to ADVantage Marketing have not reached ADVantage Marketing.

ADVantage Marketing’s liability for indirect damage is excluded. Indirect damage is defined as all damage that is not direct damage and therefore in any case, but not limited to, consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, damage due to the failure to determine marketing purposes, damage related to the use of data or data files prescribed by the client, or loss, mutilation or destruction of data or data files.

ADVantage Marketing shall not be liable for any damage, loss or destruction of objects, materials, image or word data in any form that is made available by it or on behalf of the client or that is produced by third parties at the request of the client.

Consulting services provided by ADVantage Marketing are obligations of effort and not obligations of result. Guarantees of results are not considered to be given when advice is provided. ADVantage Marketing is therefore not liable in relation to advice provided if no result is achieved.

ADVantage Marketing accepts no liability for loss or alteration of data supplied via digital data carriers or email. The Client or third parties engaged by it must always check this data for accuracy and completeness.

ADVantage Marketing accepts no liability for the content of websites or multimedia expressions produced by it.

ADVantage Marketing does not accept any liability for the possible presence of viruses on the data carriers it supplies or data or software supplied or retrieved via the Internet. The client must check the supplied data carriers, data or software itself for the presence of viruses.

ADVantage Marketing accepts no liability for information, freeware and shareware made available via the Internet or intranet. ADVantage Marketing accepts no liability for the correctness of the information available or for the correct functioning of the software present, nor for the consequences thereof.

Unless performance by ADVantage Marketing is permanently impossible, ADVantage Marketing’s liability for attributable failure to perform the contract shall only arise if the client immediately gives ADVantage Marketing notice of default in writing, setting a reasonable deadline for rectifying the failure, and ADVantage Marketing continues to be attributably in breach of its obligations even after that deadline. The notice of default must contain as complete and detailed a description of the failure as possible, so that ADVantage Marketing is given the opportunity to respond adequately.

Any claim for damages by Client against ADVantage Marketing that is not specified and explicitly reported shall lapse by the mere lapse of twelve (12) months after the claim arises.

The exclusions and limitations referred to in this article lapse if and insofar as the damage is the result of intentional or deliberate recklessness on the part of ADVantage Marketing or its management.

Article 12: Payment

Invoicing takes place monthly in advance, payment shall be made within 14 days of the invoice date, in a manner to be specified by ADVantage Marketing in the currency invoiced. Objections to the amount of the invoices do not suspend the payment obligation.

The client shall make the payments owed to ADVantage Marketing without discount or offsetting, except for offsetting against offsettable advances relating to the contract that it has made to ADVantage Marketing. The client is not entitled to suspend payment of invoices for work already performed.

If the Client fails in its obligation to pay the invoices within the stipulated term of payment, the Client shall owe an interest rate equal to the statutory (commercial) interest rate plus 2% (in words: two percent) per month on top of the amount due.

In case of liquidation, bankruptcy, attachment or suspension of payment of the Client, the claims of ADVantage Marketing on the Client shall be immediately due and payable.

ADVantage Marketing is entitled to have the payments made by the client go first of all to reduce the costs, then to reduce the interest that has fallen due and finally to reduce the principal sum and the current interest. ADVantage Marketing can, without being in default, refuse an offer of payment if the client indicates a different sequence of attribution. ADVantage Marketing can refuse full payment of the principal sum, if this payment does not include the interest that has fallen due, the current interest and the costs.

Article 13: Collection costs

If the client is in default or in breach of one or more of its obligations towards ADVantage Marketing, then all costs incurred to obtain satisfaction out of court, such as in relation to the writing of reminders, summonses and including the actual attorney’s fees and bailiff’s costs, shall be borne by the client. These costs are in any case 15% (in words: fifteen percent) of the total of the invoice amount due and not paid within the payment period.

If ADVantage Marketing proves to have incurred higher costs than the aforementioned percentages, the client shall also owe ADVantage Marketing the excess.

The client is further liable to ADVantage Marketing for all costs incurred by ADVantage Marketing, including – but not exclusively – the actual attorney’s fees, court costs, associated with the conduct of legal proceedings, in all instances, unless they are unreasonably high given the prevailing and customary rates of, for example, attorneys at law, and unless ADVantage Marketing has been ruled against in legal proceedings by a final judgment.

Article 14: Communication

In the event that the client has sent any digital message to ADVantage Marketing, it may only rely on the fact that this message has reached ADVantage Marketing if the client has received a confirmation of its receipt, other than an automatic acknowledgement of receipt.

General information provided by ADVantage Marketing, whether or not on the Internet, whether or not at the request of the client, is non-binding and shall never be regarded as advice given by ADVantage Marketing in the context of an order given to it, unless the contrary is evident from ADVantage Marketing’s communication or it is advice tailored to the personal situation of the client.

Until the client has notified ADVantage Marketing of a change of address, ADVantage Marketing may trust that the client can be reached at the address it provided at the start of the order, including its email address.

Article 15: Retention of title

ADVantage Marketing retains ownership of all items delivered and to be delivered within the framework of the agreement until such time as the client has fulfilled its related payment obligations to ADVantage Marketing. These payment obligations consist of the payment of the agreed price, increased by all claims for work carried out in relation to the agreement, as well as claims for possible compensation for failure to fulfil obligations on the part of the client.

Goods subject to retention of title may only be sold on by the client within the framework of normal business practice. If ADVantage Marketing invokes the retention of title, the agreement concluded in this regard shall be deemed to be terminated, without prejudice to ADVantage Marketing’s right to claim compensation for damages, lost profits and interest.

The client is obliged to inform ADVantage Marketing immediately in writing of the fact that third parties are asserting rights on items subject to retention of title by virtue of this article.

Article 16: Withdrawal

ADVantage Marketing is entitled to put delivered products and/or services (temporarily) out of use and/or to restrict their use if the client fails to fulfil an obligation to ADVantage Marketing in relation to the agreement, or acts in breach of the general terms and conditions. The obligation to fulfill the payment of the amounts due remains even during the decommissioning.

ADVantage Marketing activates the product and its service as soon as the client has fulfilled its obligation and paid a correspondingly determined amount for the product or service.

 

Article 17: Return of items made available

If ADVantage Marketing has made items available to the client in the execution of the order, the client is obliged to return the delivered items at the request of ADVantage Marketing within 14 days in their original condition, free of defects and in their entirety. If the client does not comply with this obligation, all resulting costs shall be for the client’s account.

If the client, for whatever reason, after a reminder, still remains in default with the obligation mentioned above, ADVantage Marketing is entitled to recover the resulting damage and costs, including replacement costs, from the client.

Article 18: Force majeure

In the event of force majeure, ADVantage Marketing is authorized without judicial intervention, either to suspend the execution of the agreement, or to terminate the agreement, without being liable for any compensation. If the force majeure situation arises when the agreement has been partially fulfilled, the client is obliged to fulfill its obligations to ADVantage Marketing up to that time. All costs incurred by ADVantage Marketing up to that point shall be immediately due and payable in full.

Circumstances that constitute force majeure shall include: war, riots, mobilization, domestic and foreign unrest, government measures, strikes and lockouts by workers, disruption of the currency exchange rates existing at the time of entering into the agreement, weather conditions, business interruptions due to fire, accident or other incidents and natural phenomena, regardless of whether these circumstances occur at ADVantage Marketing, its suppliers or third parties engaged by it for the performance of the commitment.

Article 19: Suspension, termination and dissolution.

ADVantage Marketing is authorized to terminate the agreement in writing at any time.

For agreements with a term of 12 months or less, the client may terminate the agreement prematurely subject to a notice period of 2 calendar months. For agreements with a duration of more than 12 months or for an indefinite period, the client must observe a notice period of 3 calendar months.

If a fixed-term agreement is terminated prematurely by the client, ADVantage Marketing is entitled to compensation for the resulting and plausible loss of capacity utilization amounting to 50% of the regular fee calculated over the remaining original term of the agreement, unless the termination is based on facts and circumstances that can be attributed to ADVantage Marketing and the applicable (complaints) procedure has been followed by the contractor. Furthermore, the client shall in that case be bound to pay the invoices for work performed up to that time. The preliminary results of the work carried out up to that point shall be made available to the client under reserve.

ADVantage Marketing is authorized to suspend the fulfillment of the obligations or to dissolve the agreement, if: the Client does not fulfil the obligations under the agreement, or does not fulfil them in full or in a timely manner; after the conclusion of the agreement ADVantage Marketing becomes aware of circumstances that give ADVantage Marketing good reason to fear that the Client will not fulfil its obligations; the Client has been asked at the conclusion of the agreement to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient; if due to the delay on the part of the Client ADVantage Marketing can no longer be required to fulfil the agreement under the originally agreed conditions, ADVantage Marketing is entitled to dissolve the agreement.

Furthermore, ADVantage Marketing is entitled to dissolve the agreement if circumstances arise that are of such a nature that fulfillment of the agreement is impossible or if other circumstances arise of such a nature that ADVantage Marketing cannot reasonably be required to maintain the agreement unchanged.

If the agreement is dissolved, the claims of ADVantage Marketing against the client shall be immediately due and payable. If ADVantage Marketing suspends fulfillment of its obligations, it retains its claims under the law and agreement.

If ADVantage Marketing proceeds with suspension or dissolution, it shall not be liable in any way for compensation of damage and costs incurred in any way.

If the dissolution is attributable to the client, ADVantage Marketing is entitled to compensation for the damage, including costs, incurred directly and indirectly.

If the client does not comply with its obligations arising from the contract and this non-compliance justifies dissolution, ADVantage Marketing is entitled to dissolve the contract immediately and with immediate effect, without any obligation on its part to pay any compensation or indemnification, while the client is obliged to pay compensation or indemnification for breach of contract.

If the agreement is terminated prematurely by ADVantage Marketing, ADVantage Marketing shall, in consultation with the client, arrange for the transfer of work still to be performed to third parties. This unless the termination is attributable to the client. If the transfer of the work involves extra costs for ADVantage Marketing, these shall be charged to the client. The client is obliged to pay these costs within the time period stated, unless ADVantage Marketing indicates otherwise.

In case of liquidation, of (application of) suspension of payment or bankruptcy, of attachment – if and to the extent that the attachment has not been lifted within three months – at the expense of the client, of debt restructuring or any other circumstance as a result of which the client can no longer dispose freely of its assets, ADVantage Marketing is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or indemnification. The claims of ADVantage Marketing against the client shall in that case be immediately due and payable.

If the client cancels a placed order in whole or in part, the items ordered or prepared for it, plus any costs already incurred, the loss of profit thereof and the labor time reserved for the execution of the agreement, shall be charged in full to the client.

If a client wishes changes in the execution of a project or assignment that has been given, ADVantage Marketing is not obliged to do so. ADVantage Marketing is then authorized to cancel the order. In this case, the client is liable for any damage suffered to ADVantage Marketing, including loss of profit and costs incurred

Article 20: Recruitment of staff

Client is not permitted to recruit (former) employees of ADVantage Marketing during the cooperation with ADVantage Marketing plus a period of 12 months or to give assignments as freelancer or self-employed, without prior written approval by the management of ADVantage Marketing. In case of violation of the provisions of this article, Client shall owe ADVantage Marketing an immediately payable fine of €25,000 plus €2,500.00 for each day that a violation continues. This penalty is without prejudice to ADVantage Marketing’s right to full compensation in accordance with the law.

Article 21: Dispute resolution and applicable law

Notwithstanding the statutory rules for the competence of the civil court, any dispute between ADVantage Marketing and the Client, in the event that the court has jurisdiction, shall be settled by the District Court of New York, even if the Client is a party not domiciled in the Netherlands.

However, ADVantage Marketing remains authorized to sue the Client before the court that is competent according to the law or the applicable international treaty. Any agreement between ADVantage Marketing and the Client shall be governed exclusively by USA law.

Article 22: Modification of the terms and conditions

ADVantage Marketing is authorized to change the present terms and conditions. These modifications shall come into force at the announced time of coming into force and after ADVantage Marketing has sent the modified terms and conditions, electronically or otherwise, to the clientADV