Mobile Journey Policy Agreement



  
Clause 1. Definitions
1.1. A number of terms are defined in this Policy Agreement and the Agreement. These will be capitalised at all times and may be used both in the singular and in the plural. These terms will have the following meanings:

Content: any information, including but not limited to data, documents, materials (including marketing materials), images and videos that are used or created in the context of the Campaign;

Client: the legal entity or natural person that/who has concluded an Agreement with Mobile Journey;

Client Content: all Content that the Client provides to Mobile Journey to implement the Campaign;

IP Rights: all intellectual property rights and associated rights, such as copyrights, trade mark rights, database rights, trade name rights and neighbouring rights, plus related rights such as rights to know-how and performances on a par with such rights (eenlijnsprestaties);

Mobile Journey: Mobile Journey Ltd., 56 Leman Street, E1 8EU, United Kingdom of Great Britain and Northern Ireland;

Campaign: the Campaign that Mobile Journey will carry out for the Client, as described in the Agreement;

Agreement:the agreement concluded by the Parties, comprising the signed confirmation of the assignment and this Policy Agreement;

Reports:  a weekly, monthly and/or final overview of the Statistics;

Statistics: data regarding the Campaign results;

Party (or Parties): the Client and/or Mobile Journey;

Policy Agreement: these general (policy) terms and conditions of Mobile Journey, which form an inextricable part of the Agreement.

Clause 2. The Policy Agreement
2.1. The Policy Agreement applies to all legal acts Mobile Journey performs, all legal relationships between the Parties (such as the Agreement), all offers and quotations and the implementation of the Campaign.
2.2. The applicability of purchasing conditions or other types of conditions of the Client are explicitly excluded.
2.3. Should any clause of the Policy Agreement and/or Agreement be void or nullified, the remaining clauses of the Policy Agreement and/or Agreement will remain fully effective. Mobile Journey will replace the void or nullified clauses with new clauses, giving maximum consideration to the original aim and purport of the void or nullified clauses.

Clause 3. The Agreement
3.1. All offers and quotations provided by Mobile Journey are free of obligation, unless the offer expressly provides otherwise in writing.
3.2. The Agreement is concluded as soon as the confirmation of the assignment has been signed by both Parties or when the Client agrees to the Agreement online or via email. The Agreement may be signed both physically and electronically.
3.3. In its communications, Mobile Journey has the right to state the Client’s name and location in its public client list.


Clause 4. Services
4.1. Mobile Journey will use its best endeavours to implement the Campaign with due care. Unless expressly agreed otherwise in writing, Mobile Journey’s Campaign will be implemented based on a best efforts obligation. The Client may in any case expect Mobile Journey to do the following:
a. the Campaign will be implemented in accordance with the agreed strategy and any changes to the strategy will only be implemented if both Parties have agreed to it;
b. the Campaign will be fully implemented within the agreed budget;
c. Mobile Journey will remain transparent with respect to the management of the Campaign;
d. Mobile Journey and the Client will be in touch frequently to discuss the progress of the Campaign.

4.2. If and insofar as the proper performance of the Agreement so requires, Mobile Journey has the right to engage third parties to carry out certain work.
4.3. Mobile Journey is responsible for implementing and carrying out the Campaign, as agreed in the Agreement.
4.4. Should there be any discrepancies between Mobile Journey’s Statistics and those of the Client, Mobile Journey’s Statistics will prevail. If the discrepancy is more than 10%, Mobile Journey will start an investigation and will endeavour to offer the Client a suitable solution. The Parties will, in mutual consultation, divide any costs incurred due to excessive discrepancies with in any case both Parties bearing at least some of the costs incurred.


Clause 5. The Client’s Responsibilities
5.1. The Client is obliged to do and omit to do all things that are reasonably required and appropriate to facilitate the timely and correct implementation of the Campaign. In particular, the Client will provide Mobile Journey, in good time, with any data, documents, equipment, software, materials or employees it requires or which the Client should reasonably understand are required for the performance of the Agreement.
5.2. If the Client fails to provide Mobile Journey with the Client Content that Mobile Journey believes is useful, required or desirable for its performance of the Agreement, or fails to provide it on time or in accordance with Mobile Journey’s wishes, Mobile Journey will have the right to suspend, either wholly or in part, the performance of the Agreement and it will also have the right to charge the costs incurred due to said suspension in accordance with Mobile Journey’s regular rates, all this without prejudice to Mobile Journey’s right to exercise any other statutory and/or agreed rights.
5.3. The Client is responsible for checking the correctness and completeness of the results of the Campaign and the Statistics and Reports that are generated through the Campaign. The Client checks the results of the Campaign and the Reports generated from the Campaign on a regular basis. If the Client is of the opinion that a specific result is incorrect, incomplete or has not been updated, the Client will notify Mobile Journey of that fact as soon as possible.
5.4. Mobile Journey does not accept any liability with respect to the substance of Client Content. The Client is expressly not permitted to provide Mobile Journey with Client Content, or to make it available to it in any other way, if that Content:
a. is, in Mobile Journey’s opinion, considered offensive or inappropriate with regard to appearance, race, religion, sex, culture, origin or suchlike;
b. incites violence against and/or harassment of others;
c. leads to or arises from the exploitation or abuse of others;
d. is, in Mobile Journey’s opinion, contrary to public morals or good taste, contains violence or includes a link to pornographic material;
e. contains requests for personal data of minors and/or provides personal data of others;
f. is used to carry out or facilitate illegal activities;
g. is based on falsehoods and/or is misleading;
h. infringes the rights of Mobile Journey and/or third parties, including but not limited to IP
Rights or rights relating to privacy protection;
i. is unlawful in any other way; or
j. may harm Mobile Journey’s interests and good name.
5.5. Mobile Journey reserves the right to shorten, amend, refuse or delete Client Content if it believes that this is required, without this leading to the Client being entitled to damages in any way and/or Mobile Journey being liable.
5.6. The Client is liable for, and indemnifies Mobile Journey completely against, any damages and costs Mobile Journey may incur due to Client Content that violates Clause 5.4 of the Policy Agreement.


Clause 6. Privacy
6.1. In performing the Agreement, Mobile Journey will process personal data within the meaning of the Dutch Personal Data Protection Act (Wet bescherming persoonsgegevens, hereinafter: the “PDPA”), and as from 25 May 2018 within the meaning of the General Data Protection Regulation (the “GDPR”), for the Client. The Parties agree that, insofar as Mobile Journey processes personal data for the Client’s Campaign, Mobile Journey will be considered to be the processor within the meaning of the PDPA/GDPR, and the Client will be considered to be the controller. Mobile Journey will therefore only process personal data within the context of performing the Agreement with the Client and for the Client’s Campaign.
6.2. The Client guarantees (i) that it is fully compliant with all applicable statutory obligations, including but not limited to the obligations under the PDPA/GDPR, with regard to personal data. The Client warrants to Mobile Journey that this information is not unlawful and does not infringe any third-party rights; (ii) that it is entitled to disclose the personal data to Mobile Journey; and (iii) that it is entitled to engage Mobile Journey as processor of the relevant personal data.
6.3. The Client fully indemnifies Mobile Journey against all third-party claims which in any way arise from and/or are associated with Mobile Journey’s processing of personal data and/or which result from any breach of the above-mentioned guarantees by the Client.


Clause 7. Confidentiality
7.1. If and to the extent that any confidential information pertaining to one Party becomes known to the other Party during the performance of the Agreement, the receiving Party will only use such information for the performance of the Agreement and will restrict access to that confidential information to individuals who must have access to it for that purpose. The Parties warrant that such individuals will be obliged to observe confidentiality in respect of this confidential information pursuant to an employment contract and/or a confidentiality agreement.
7.2. Information will be considered to be confidential unless one of the Parties indicates that the information it has provided is not confidential. The existence and the contents of this Agreement are expressly considered to be confidential.
Confidential information is not information that was already available to the public when the receiving Party received it or that became available to the public afterwards, or that the receiving Party also received from a third party without a confidentiality obligation being applicable or without said third party being obliged to impose one.


Clause 8. Price and payment
8.1. The Client owes the amounts set out in the Agreement.
8.2. Unless indicated otherwise, all prices listed by Mobile Journey are in euros and exclude Dutch turnover tax (BTW) and other government levies.
8.3. All prices listed in the Agreement and in brochures, price lists and/or other communications from Mobile Journey are subject to software errors and typographical errors. Mobile Journe does not accept any liability for the consequences of such errors.
8.4. The payment period for invoices is set out in the Agreement; the standard period is thirty (30) days counting from the invoice date, unless the Agreement or the invoice provides otherwise (“NET30”). The Client agrees to electronic invoicing by Mobile Journey.


Clause 9. IP Rights
9.1. All IP Rights relating to the Content, Mobile Journey’s Statistics, Reports and all information Mobile Journey makes available to the Client via its website or via any other means, are vested exclusively in Mobile Journey and/or its licensor(s). Any deviation from the above provision will only be valid if it has been agreed explicitly in a written deed and will in that case apply solely to the works and rights referred to in that deed.
9.2. All the Client’s IP Rights, including (without any restriction) IP Rights to the Client Content, remain vested in the Client. The Client grants Mobile Journey a royalty-free, unencumbered, sub-licensable, non-exclusive licence to use and reproduce the Client Content to the extent that this is required to perform the Agreement and carry out the Campaign. The Client warrants that it is entitled to grant this licence to Mobile Journey.


Clause 10. Liability
10.1 Mobile Journey’s liability for an imputable failure to perform the Agreement or for an unlawful act or any other act or omission by Mobile Journey, its employees or third parties engaged by it, explicitly including any failure to perform a guarantee obligation agreed with the Client, is limited to compensation for direct damage. Mobile Journey’s total, cumulative liability (i.e. notwithstanding the number of damage-incurring events during the term of the Agreement) for direct damage will not exceed the total amount that the Client has paid to Mobile Journey under the Agreement.
10.2 “Direct damage” means, exclusively:
a. damage to property;
b. costs that the Client would reasonably have to incur to ensure that Mobile Journey’s
performance accords with the Agreement; however, such alternative damage will not be compensated if the Agreement has been dissolved by the Client (which includes this Agreement being set aside by a competent court on the Client’s behalf) (Article 6:265 of the Dutch Civil Code);
c. costs reasonably incurred by the Client to determine the cause and extent of the damage, to the extent that such determination relates to direct damage within the meaning of this Agreement;
d. costs reasonably incurred to prevent or mitigate damage, to the extent that the Client is able to demonstrate that these costs have mitigated the direct damage within the meaning of this Agreement.
10.3. Mobile Journey is not liable for damage that is not direct damage as described in Clause 10.2, including consequential damage arising from or in connection with the Agreement, including (without limitation) lost profits, lost sales, loss of expected savings and other similar financial losses such as loss of goodwill or loss of one’s good name or other types of non-recurring damage, of whatever nature, regardless of whether the Client has notified Mobile Journey of such possible damage, compensation or loss.
10.4. In every instance, any entitlement to compensation for damage is conditional upon the Client providing a written notification to Mobile Journey of the damage within thirty (30) days after it has occurred. The Client’s right to demand compensation for damage under this Agreement, due to an unlawful act or otherwise, will in any case lapse one (1) year after the occurrence of the event leading to the institution of the claim or the proceedings.
10.5. The Client is liable to Mobile Journey for, and indemnifies Mobile Journey completely against, any damages and costs Mobile Journey may sustain or incur due to a third-party claim that is based on the assertion that Client Content violates said third party’s IP Rights. Any costs and damage incurred by Mobile Journey that is in any way connected to such a claim will be compensated by the Client.


Clause 11. Force majeure
11.1. Mobile Journey is not obliged to perform any obligation to the Client if Mobile Journey is impeded from doing so by circumstances for which it cannot be blamed and which cannot be charged to it pursuant to the law or under any legal act or generally accepted standards (“Force Majeure”).
11.2. In addition to the statutory and case law definitions, Force Majeure is understood to include all external causes, foreseen or unforeseen, which Mobile Journey is unable to influence but as a result of which Mobile Journey cannot perform its obligations. In particular, Force Majeure is understood to include domestic riots, SYN flood, network attacks, mobilisation, war, traffic blockages, strikes, lockouts, business interruptions, supply interruptions, fire, floods, import and export restrictions and any situation in which Mobile Journey is prevented from supplying because of its own suppliers, for any reason whatsoever, as a result of which Mobile Journey cannot reasonably be required to perform the Agreement.
11.3. Mobile Journey may suspend its obligations under the Agreement for as long as an event of Force Majeure continues. If this period exceeds two months, then either Party will be entitled to dissolve the Agreement without being under any obligation to compensate the other Party for damage.


Clause 12. Duration and termination
12.1. The Parties conclude the Agreement for the period that is stated in the Agreement.
12.2. If the Agreement is dissolved due to default by either Party, any services already provided to the Client in performance of the Agreement at the time of dissolution and any associated payment obligation will continue to apply. Any amounts that Mobile Journey has invoiced before such dissolution will be due and payable, in full, at the time of dissolution.
12.3. Mobile Journey has the right to terminate the Agreement wholly or in part, without a notice of default being required, if the Client is granted a moratorium (whether provisional or not), if the Client files for insolvency, if the Client’s business is wound up or dissolved for reasons other than restructuring or a merger, or if the decisive control over the Client’s business changes, or if the Client is a natural person, if the Client dies.
12.4. The provisions that are intended to remain in force after termination, dissolution or any other manner of ending the Agreement will survive such termination, dissolution or other manner of ending the Agreement.


Clause 13. Competent court, complaints and disputes
13.1. Dutch law applies to the Policy Agreement and the Agreement.
13.2. Unless domestic or international mandatory laws or regulations provide otherwise, an disputes arising from or in relation to this Policy Agreement and/or Agreements that have been concluded subject to this Policy Agreement will be submitted exclusively to the competent court in Amsterdam.
13.3. Mobile Journey will endeavour to handle any complaints the Client may have swiftly and with care, and will apply a solution-oriented approach when doing so. Mobile Journey endeavours to respond to any complaints or questions the Client may have within 24 hours. The Client may report its complaints, during office hours, to Mobile Journey by email (Ramona@Mobilejourney.co and Remon@Mobilejourney.co) or by telephone (+44 (0)74 79 190 650).


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