Terms and Conditions

SmartRanking Terms and Conditions

Definitions

In these general terms and conditions, the definitions listed below—always capitalized—have the following meanings:
a) SmartRanking: SmartRanking B.V., with its registered office in Groningen, registered in the Commercial Register of the Chamber of Commerce under number 83927034, with VAT number NL863036752B01;
b) Client: the (legal) person who has entered into or wishes to enter into an agreement with SmartRanking;
c) Parties: SmartRanking and the Client collectively.

2. Applicability

1. These general terms and conditions apply to every offer, agreement, and performance of work by SmartRanking, as well as to every legal relationship between the Parties.
2. Any provisions or conditions set forth by the Client that deviate from, or are not included in, these general terms and conditions are binding on Smart Ranking only if and to the extent that Smart Ranking has expressly accepted them in writing.
3. The Client is deemed to have accepted these general terms and conditions with respect to any future offer, agreement, and performance of work by SmartRanking.
4. These general terms and conditions also apply to third parties involved in the performance of a contract.
5. If any provision of the general terms and conditions or an agreement is found to be void or is set aside, this shall not affect the validity of the general terms and conditions or the agreement as a whole. In such a case, the parties shall consult with each other to agree on a new provision to replace the void or voidable provision, taking into account, as much as possible, the purpose and intent of the void or voidable provision.

3. Offers and Agreements

1. All offers from SmartRanking are non-binding, unless expressly stated otherwise.
2. SmartRanking is entitled to rescind an offer within 10 business days of receiving the acceptance, even if a deadline for acceptance has been set.
3. An agreement is concluded only if it has been signed or confirmed by both Parties.
4. If the acceptance differs—whether on minor points or not—from the offer set forth in the proposal and/or quotation, SmartRanking is not bound by it.
5. Orders are deemed to have been accepted exclusively by SmartRanking, even if they were accepted by an employee of SmartRanking. Only SmartRanking may be held liable by the Client for performance of the contract for services. The Client may only hold SmartRanking liable for compensation for damages. The applicability of Articles 7:404, 7:402(2), and 7:409 of the Dutch Civil Code is expressly excluded.
6. For the term of the agreement, the Client grants SmartRanking the exclusive right to perform the assignment.

4. Performance of the Agreement

1. SmartRanking will perform the agreement to the best of its knowledge and ability. However, it cannot guarantee that the work will consistently achieve the results desired by the Client.
2. The Client must provide all information that SmartRanking indicates is necessary for the performance of the work, or that the Client should reasonably understand to be necessary, including FTP credentials and CMS login credentials, in a timely manner and in the specified manner. If the Client fails to do so, SmartRanking shall, in the first instance, have the right to suspend the performance of the agreement. Any additional costs resulting from the delay may be charged by SmartRanking in accordance with its standard rates. If the Client fails to provide the requested information even after being specifically requested to do so, or otherwise fails to comply with any provision of the agreement or these general terms and conditions, SmartRanking shall have the right to terminate the agreement out of court, without prejudice to its right to claim full payment (including interest and costs).
3. SmartRanking is free to engage third parties to perform the agreement. SmartRanking must notify the client of this.
4. If it has been agreed that the project will be carried out in phases, SmartRanking has the right to suspend any work in subsequent phases until the results of the preceding phase have been confirmed in writing and/or paid for.

5. Additional Work

1. If SmartRanking, at the Client’s request or with the Client’s consent, has performed work or services that fall outside the scope or content of the agreed-upon work, the Client shall compensate SmartRanking for such work or services in accordance with SmartRanking’s standard rates. SmartRanking is always entitled to require that a separate written agreement be entered into for such work or services.
2. SmartRanking will inform the Client of the financial consequences of any additional work or services performed as extra work.
3. If, after work has begun, it becomes apparent that the order for additional work was issued by an unauthorized employee of the Client, the Client must nevertheless pay the associated fee for this work. However, SmartRanking will cease the work upon the Client’s first request.
4. The fact that additional work (or the need for it) arises during the performance of the agreement shall never constitute grounds for the Client to terminate or cancel the agreement. Nor can this give rise to liability on the part of SmartRanking, unless there is deliberate recklessness or intent on the part of SmartRanking.

6. Delivery/Completion

1. Unless otherwise expressly agreed in writing, any deadline agreed upon for the completion of SmartRanking’s work is merely indicative and does not constitute a strict deadline.
2. If a deadline is missed, SmartRanking must be given written notice of default, and SmartRanking must be granted a reasonable period of time to still fulfill the agreement.
3. Any changes requested by the Client to the work produced or services rendered by SmartRanking must be communicated to SmartRanking in writing or by email in a timely manner, but in any case no later than 14 days after delivery or completion thereof. Failure to meet this deadline will result in additional work (Article 5), the costs of which must be reimbursed in accordance with SmartRanking’s standard rates.

7. Prices

• All prices are exclusive of sales tax (VAT) and other government-imposed taxes, unless expressly stated otherwise.
• SmartRanking reserves the right to change prices annually; such changes also apply to existing agreements.
• If a price change referred to in the preceding paragraph involves an increase of more than 10%, the Client is entitled to terminate the agreement effective as of the date on which the change would take effect, unless SmartRanking withdraws the proposed change before that date.

8. Payment

1. Payment must be made without delay or set-off, in the manner and within the payment term specified in the agreement (quote) or on the invoice.
2. Unless otherwise agreed in writing, the payment term is 30 days after the date of acceptance of the quotation or 30 days after the invoice date. Payments collected via direct debit will be automatically deducted within 30 days after the offer is accepted or within 30 days after the invoice date.
3. Upon expiration of the payment term, the Client shall be deemed to be in default by operation of law. In that case, the Client shall owe contractual interest of 1.00% per month on the amount due, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. In addition, all costs incurred in obtaining payment out of court shall be borne by the Client. These costs amount to at least 15% of the principal amount owed and the statutory interest due, with a minimum of €250.
4. If the Client is in default, SmartRanking is entitled to suspend and/or cease its work. In addition, all of SmartRanking’s claims against the Client shall become immediately due and payable, and the Client shall be deemed to be in default with respect to those claims without the need for a notice of default.
5. Payments made by the Client shall always be applied, first, to settle all interest and costs due, and second, to settle the longest-outstanding invoices, even if the Client specifies that the payment relates to a later invoice.
6. The Client waives any right to invoke suspension or setoff.
7. If two or more Clients have jointly placed an order, those Clients are jointly and severally liable for the payment of the amounts listed in SmartRanking’s invoices, to the extent that work was performed on behalf of the joint Clients.
8. If it has been agreed that the Client must pay SmartRanking (a portion of) the agreed-upon fee prior to the commencement of the work, and payment has not been made by the specified deadline, SmartRanking is not obligated to perform the work. In that case, SmartRanking is entitled to suspend its work or terminate the agreement, without prejudice to SmartRanking’s other rights, including, but not limited to, the right to statutory damages. In the event of termination, the Client shall in any case owe the agreed-upon rate for the work.
9. Any objections to an invoice must be submitted in writing to SmartRanking, stating the reasons, within ten (10) days of the invoice date. After this period has expired, complaints will no longer be considered, and the Client will be deemed to have waived its rights in this regard.
10. If, in SmartRanking’s opinion, the Client’s financial position or payment history gives cause to do so, SmartRanking is entitled to require the Client to immediately provide (additional) security in a form to be determined by SmartRanking and/or pay an advance. If the Client fails to provide the required security, SmartRanking is entitled, without prejudice to its other rights, to immediately suspend further performance of the Agreement, and all amounts owed by the Client to SmartRanking for any reason whatsoever shall become immediately due and payable.

9. Contract Term and Termination

1. This agreement is entered into for an indefinite term, unless the Parties agree otherwise in writing.
2. Either Party may terminate the agreement in whole or in part at any time, provided that a notice period of three (3) full calendar months is observed.
3. Notice of termination must be given in writing by certified mail or by email to the mailing address specified in the agreement.
4. The agreement ends on the last day of the third calendar month following the month in which the notice of termination was received. Example: If notice of termination is received on January 17, the agreement ends on April 30 of that year.
5. During the notice period, all rights and obligations under the agreement remain in full force and effect, including the Client’s payment and cooperation obligations.
6. SmartRanking is entitled to terminate any agreement prematurely by giving notice, with immediate effect if desired. SmartRanking shall never be liable for any damages resulting from such termination.
7. In the event of early termination by the Client, the Client shall owe SmartRanking compensation equal to the sum of the remaining monthly amounts, excluding taxes.
8. Any deviations from this article are valid only if they have been expressly agreed upon in writing by both Parties.

10. Termination

1. Each Party shall be entitled to terminate the agreement only if the other Party, after receiving a proper written notice of default—as detailed as possible—setting a reasonable period for remedying the breach, is at fault for failing to fulfill essential obligations under the agreement, unless otherwise provided in these general terms and conditions.
2. SmartRanking may terminate the agreement in whole or in part with immediate effect by written notice, without notice of default and without judicial intervention, if the Client is granted a stay of payments, whether provisional or otherwise, if a petition for bankruptcy is filed against the Client, or if the Client’s business is liquidated or terminated for reasons other than for the purpose of restructuring or a merger of companies. SmartRanking shall in no event be liable for any damages arising from such termination.
3. If the Client terminates the agreement prematurely, SmartRanking is entitled to compensation from the Client for the resulting and demonstrable loss of business, unless the termination is based on facts and circumstances attributable to SmartRanking. The amount of compensation shall be reasonably proportionate to the extent of the services already performed in relation to the work originally agreed upon.
4. If SmartRanking terminates the agreement prematurely, the Client is entitled to SmartRanking’s cooperation in transferring the work to third parties, unless the termination is based on facts and circumstances attributable to the Client. In the event of early termination, SmartRanking retains the right to payment of invoices for work performed up to that point, and the preliminary results of the work performed up to that point will be made available to the Client, subject to reservation.

11. Confidentiality and Information

The parties are obligated to keep confidential all confidential information they have obtained under any agreement or from any other source. The party receiving confidential information shall use it only for the purpose for which it was provided. Information is considered confidential if one of the parties has designated it as such, if the information is marked as confidential, or if this otherwise follows from the nature of the information.

12. Intellectual Property

1. All intellectual property rights to all works developed or made available by or on behalf of SmartRanking under this agreement are vested exclusively in the Client.
2. “Work” shall be understood to include, among other things, the (search engine-friendly) texts, landing pages, web pages, web links, and code, as well as advice, templates, software, applications, and other modifications designed to improve conversion rates and/or user experience.
3. The Client acknowledges that the works and/or other materials made available may contain confidential information and/or trade secrets of SmartRanking or its licensees. Without prejudice to the provisions of Article 11 (Confidentiality), the Client undertakes to keep these works and materials confidential, not to disclose them to third parties or allow third parties to use them, and to use them solely for the purpose for which they were made available.
4. The Client warrants that no third-party rights prevent the provision to SmartRanking of equipment, software, websites, data files, information intended for websites, music, texts, logos, photographs, video footage, domain names, meta tags, and the like, or other materials for the purpose of use or processing by SmartRanking.
5. If SmartRanking has performed work based on designs, drawings, or other instructions provided by or on behalf of the Client, the Client warrants that such work does not infringe upon any intellectual property rights of third parties. The Client shall indemnify SmartRanking against any action or claim based on the allegation that such provision, use, or modification infringes upon any third-party rights.
6. Rights are always granted and/or transferred to the Client on the condition that the Client pays the agreed-upon fees in full and on time. If the Parties have agreed that the Client’s grant of a right of use is subject to a periodic payment obligation, the Client shall retain the right of use as long as it fulfills its periodic payment obligation.

13. Liability

1. SmartRanking is liable only for direct damages resulting from SmartRanking’s willful recklessness or intentional misconduct.
2. Any liability of SmartRanking for damages arising from, or related to, an attributable failure to perform the assignment, tort, or based on any other legal ground, is limited to the amount paid out by SmartRanking’s insurer in that case, plus SmartRanking’s deductible under the relevant insurance policy. In all other cases, SmartRanking’s total liability is limited to the amount paid by the Client to SmartRanking in the last calendar year for the work in connection with which the damages arose.
3. SmartRanking cannot guarantee that the Client’s website and other systems will function fully and/or be available at all times during the period in which SmartRanking is performing work on them. SmartRanking accepts no liability for malfunctions, limitations, and/or loss, unless there is intent or willful recklessness on the part of SmartRanking. The Client must at all times maintain a digital backup of its website, hard drives, server, and similar systems.
4. Under no circumstances shall SmartRanking be liable for damages consisting of loss of revenue or goodwill, or for any other indirect damages.
5. SmartRanking is not liable for (the consequences of) the policies implemented by Internet search engines. Nor is SmartRanking liable for the consequences of—or changes to—such policies with respect to any campaign(s) set up by SmartRanking on behalf of the Client. However, SmartRanking will at all times strive to increase the Client’s conversions.
6. The Client must report to SmartRanking any damage for which SmartRanking may be held liable as soon as possible, but in any event within 10 days after the damage occurs, failing which the Client forfeits any right to compensation for such damage.
7. Without prejudice to the provisions of Article 6:89 of the Dutch Civil Code, all claims and other rights of the Client, on whatever grounds, against SmartRanking in connection with the performance of the agreement shall lapse in any event one year after a defect and/or event became known or could reasonably have become known.
8. The limitations of liability set forth in this article are also stipulated for the benefit of any third party who has been involved in the performance of an agreement and who is or could be liable in connection therewith.
9. The Client guarantees the accuracy, completeness, and reliability of the data provided to SmartRanking, even if such data originates from third parties. SmartRanking is not liable for any damages arising from SmartRanking’s reliance on incorrect or incomplete information provided by the Client.
10. The Client must comply with the rules and guidelines established by—the owners of—Internet search engines. SmartRanking is not liable for any damages resulting from the Client’s failure to comply with these rules and guidelines.
11. The Client shall indemnify SmartRanking against all claims by third parties, including the costs of legal counsel, that are in any way related to work performed for the Client, except in cases of willful misconduct or gross negligence on the part of SmartRanking or its management.

14. Force Majeure

1. SmartRanking is not obligated to fulfill any obligation if it is prevented from doing so as a result of force majeure. Force majeure includes—but is not limited to—force majeure on the part of SmartRanking’s suppliers, the failure of suppliers, whose use has been prescribed to SmartRanking by the Client, to properly fulfill their obligations, as well as defects in goods and materials whose use has been prescribed to SmartRanking by the Client.
2. If a force majeure event has lasted longer than 30 days, either Party is entitled to terminate the agreement in writing. In that case, any performance already rendered under the agreement will be settled on a pro rata basis, without any obligation to pay damages.

15. Transfer

1. The Client may transfer the legal relationship between the Parties to third parties only if SmartRanking has granted its written consent.

16. Employee Clause

1. During the term of the agreement and for a period of two years following its expiration, the Client is not permitted to hire any SmartRanking employee, either directly or indirectly, unless SmartRanking has expressly granted written approval.
2. For each violation of the provision set forth in paragraph 1, the Client shall be liable to pay an immediately payable penalty in the amount of €7,700.00 (in words: seven thousand seven hundred euros) for each violation, as well as an amount of €1,000.00 (in words: one thousand euros) for each week that the violation continues. This is without prejudice to SmartRanking’s right to claim full compensation for the damages suffered.

Link Building and Search Engine Optimization

1. The client is presumed to be aware that link building always carries a risk of devaluation in Google. Although SmartRanking makes every effort to minimize this risk, SmartRanking is not liable for any consequences of a ranking drop or so-called penalty in Google resulting from link building, except in cases of willful misconduct or gross negligence on the part of SmartRanking.
2. SmartRanking is not liable for broken or missing links on third-party pages, except in cases of willful misconduct or gross negligence on the part of SmartRanking.
3. To the extent that search engine optimization forms part of the agreement, the Client acknowledges that Google, in principle, does not consider external influence on search results to be desirable, and that, due to the constant changes in Google’s (technical) policies, SmartRanking can never guarantee the achievement of the intended result. SmartRanking is bound solely by best-efforts obligations and not by obligations to achieve specific results. All statements by SmartRanking regarding the possible results of its work are indicative in nature, and the Client may not derive any rights or guarantees from them.

18. Electronic Communication

1. Electronic communications are deemed to have been received on the date of transmission, unless the recipient proves otherwise. The version of the electronic communication stored by SmartRanking shall serve as evidence between the Client and SmartRanking, unless the Client provides evidence to the contrary.
2. Electronic communications are transmitted without encryption, unless the Client has expressly indicated that it wishes to use the encryption options available at SmartRanking for the transmission of any specific electronic message.
3. Unless otherwise agreed, SmartRanking will use the email address provided by the Client as its primary contact address.
4. The recipient must check electronic communications for viruses. Neither the Client nor SmartRanking shall be liable to the other for any damages resulting from the use of electronic communications, such as the spread of viruses, except in cases of willful misconduct or gross negligence.
5. SmartRanking accepts no liability whatsoever for the malfunctioning of data storage media or for the loss or corruption of data or software stored on such media resulting from electronic communication between SmartRanking and the Client, unless there is intent or willful recklessness on the part of SmartRanking.

19. Miscellaneous Provisions

1. Notwithstanding the statutory statutes of limitations, a one-year statute of limitations applies to all claims against SmartRanking and third parties engaged by SmartRanking.
2. If SmartRanking does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that SmartRanking would in any way forfeit the right to require strict compliance with the provisions of these terms and conditions in other cases.
3. SmartRanking has the right to use the Client’s name and logo as a reference.
4. In the event of the Client’s liquidation, (filing for) bankruptcy, or (provisional) suspension of payments, or if a debt restructuring plan is ordered with respect to the Client, or if an attachment is levied on—or part of—the Client’s assets, as well as in the event of force majeure, all of the Client’s obligations under any agreement shall become immediately due and payable. In such cases, SmartRanking is authorized to suspend the performance of any agreement entered into with the Client or to terminate that agreement.
5. SmartRanking’s records shall serve as evidence between the Parties of the amounts owed to SmartRanking, as well as of the content of communications exchanged, unless the Client provides evidence to the contrary.
6. Unless otherwise agreed in writing, all communication, including reports issued by SmartRanking, shall be conducted exclusively in Dutch.
7. SmartRanking reserves the right to unilaterally amend these Terms and Conditions. Amendments also apply directly to agreements that have already been concluded. Amendments will be announced via email or in writing and will take effect 30 (thirty) days after the announcement, unless a different date is specifically indicated.

20. Governing Law and Disputes

1. The legal relationship between the Parties is governed by Dutch law.
2. Disputes between the Parties shall be submitted to the competent court in the Northern Netherlands judicial district, unless required otherwise by law.