Terms and Conditions

GENERAL TERMS & CONDITIONS EMBROSA

March 2023

Embrosa B.V.

Dutch Chamber of Commerce number: 66026334

Email: support@embrosa.com

Phone number: +31 85 303 8686

Here you have it, our general terms and conditions, also known as ‘small print’. It’s awesome that you want to use our services. To make sure that everything is clear, we have put some rules and agreements on paper. Please read them carefully, to make sure we know what to expect from each other.

Definitions

In these terms and conditions, the following definitions apply:
1. Us, Embrosa: Embrosa B.V., the user of these general terms and conditions and the company that provides services to you.
2. You: the company, that wants to distribute content, via your Users (resellers and retailers), with the purpose to reach your Users and your End Consumers. For that purpose, you will deliver content to be used and distributed through our Platform, so that we can deliver it to our Users and to your End-Consumers. And of course, you are the party that accepts these general terms and conditions.
3. T&C: these general terms and conditions.
4. Users: the end-Users of the Platform, including retailers and resellers, that will use the content provided by you for their social media, websites and other online media. Also the retailers and resellers, that participate in hyper-local advertising campaigns by sharing ads through their (social media) channels, aiming at reaching the End-Consumers that work or live around their shop;
5. End Consumers: The final consumer buying the products or services your company offers through your customers (your customers are our Users, or in other words the retailers and resellers);
6. Content: all kinds of information or content, including texts, photos and videos, that is created to be placed on websites, social media channels and any other kind of (online) media.
7. Campaign: a specifically designed and created hyper-local communication strategy to be shared through (social media) channels that aims at reaching the End-Consumers that work or live around our Users (the shops of the retailers and resellers); part of the total marketing or advertising campaign of your Company.
8. Channel: any social media, media, or online marketing channel, including but not limited to Facebook, Facebook Advertising, Instagram, Google Ads, Google Adwords, TikTok, SnapChat, YouTube, digital signage and Out-of-Home.
9. Platform: the Embrosa platform and app, through which your content will be shared with our Users and which is used to create and manage Campaigns for various channels.
10. Dealer: the person who trades on your behalf, who is authorised to represent your brand and to share Content with us, including your distributors.
11. Account: the username and password that gives access to our services and a closed part of the Platform.
12. Fees: the prices we ask for our services.
13. Subscription Fees: the applicable Fees for the Platform, including App and Dashboard, services.
14. Campaign Fees: the applicable Fees for the Campaign services.
15. In writing / written: when we speak about written or in writing in these T&C, we also mean electronic communication, such as e-mail, provided that the identity of the sender and the authenticity of the communication are sufficiently established.
Application
1. These T&C apply to all legal relationships, offers and agreements between you and us.
2. Provisions or conditions imposed by you that deviate from, or do not occur in, these T&C are only binding if and insofar as we have explicitly accepted them in writing.
3. Your general terms and conditions are explicitly rejected.
Offer and conclusion of agreement
1. You can request information about our services and the Fees without obligation. We will gladly send you an offer on request, in which you can read everything.
2. If we give you an indication of our Fees, it may occur that these Fees change. This might happen due to, for example, (unforeseen) price increases of our suppliers. We will inform you as soon as possible about such Fee changes.
3. We at Embrosa are only human. It could happen that an error/mistake will end up in our offer. Unfortunately, you cannot derive any rights from this.
4. The agreement between you and us is concluded once you agree with our offer in writing and you indicate that you want to use our services. After acceptance, we can mutually agree to change the agreement.
5. The term of a subscription to our services starts on the day that access to your account(s) is granted.
Our App services
1. As a paying client, you can assume that we start our services within a reasonable time period. Before you start using our services, we will inform you about more exact delivery dates.
2. You can subscribe to our services per business sector or category. You will then be able to upload content within these sectors or categories.
3. We try to offer the perfect social media tip to our Users, perfect match between your product and Content and the User, based on the behaviour within the App, profile and/or interest of Users, we bring your Content to their attention. We see the user experience of our Users as the key to a valuable Platform. We can therefore not guarantee how often and by whom your content is seen and/or shared.
4. The match between you and Users is made automatically, on the basis of an algorithm.
5. For the best execution of our services, we will sometimes have to use the services of a third party. Of course, we only use third parties that we trust to be awesome professionals.
6. When we engage a third party, we are not liable for any shortcomings by this third party. You hereby authorise us to accept any general conditions stated by this third party (with possible limitations of liability) on behalf of you.
7. We want to make the best possible exchange between you and our Users. If you nevertheless find that your brand is used incorrectly, or that you are no longer represented by this User, we ask you to report this as soon as possible. This enables us to investigate what has happened and possibly disconnect the User.
Our Campaign services
1. When you agree to run campaigns with us, we together determine the start- and end date of each Campaign. Based on these dates, we set important milestones for you and us. We rely on each other's work, information, and input. Without this, it is not possible to run a successful Campaign. So we do everything that reasonably lies within our power to meet these milestones in time, so we both have a reasonable time period to properly set up every Campaign. We inform each other when we cannot meet the set deadlines. Unless explicitly agreed in writing otherwise, though, delivery dates and deadlines can never be interpreted as fatal terms.
2. When you do not supply us with the necessary input or information, you are aware that we cannot start your Campaign (in time). We will together reschedule your Campaign, taking into account your request, as well as the availability of our team and Platform. If we cannot reschedule within the next 12 months, you agree to pay us 30% of the Campaign Fees we quoted you in the Campaign proposal.
3. Specifically for the Campaigns, we need Campaign-invoices to be paid before we set your Campaign live. This is because Campaigns require many out-of-pocket expenses for us. You are aware that we cannot go live or that we are allowed to postpone and/or quit Campaigns early when the necessary funds are not paid in full. If we quit and/or postpone a Campaign for reasons as set out in this section, you are obliged to pay us the full Campaign Fees as described in our Campaign proposal.
4. We ask you, per Campaign, to set the specifics of the Campaign. The specifics include but are not limited to, goal of the Campaign, lead time, start date, end date, End Consumer description (= target audience), number of participating shops, number of unique End Consumers you want to reach, whether personalization of visuals, texts, links or landing pages is required, allowed usage of Channels, and the available media budget. We confirm these specifics to you in a confirmation of order. If we do not receive your specifics (in time), we reserve the right to cancel the Campaign. In such case, you are obliged to pay us the full Campaign Fees as described in our Campaign proposal.
5. When, after the confirmation of order, you request us to deviate from the Campaign specifics, the Campaign Fees might change. We will of course inform you about this in time.
6. When accepting the Campaign, we agree with you on a number of uniquely reached End Consumers. We often call this ‘reach’ for short. You may expect from us that we will deliver this reach to you. You give us freedom to allocate the available media budget across the agreed-upon Channels to acquire the agreed-upon reach in the most efficient way.
7. When we cannot uniquely distinguish the End Consumer, for example because we use different unrelated Channels, you allow us to sum up the unique reach per Channel as the total uniquely reached End Consumers.
8. If we, for some reason, cannot deliver the agreed upon reach within the agreed upon Campaign specifics, you allow us to gather the reach for you otherwise, for example by extending the Campaign period, set up a subsequent campaign, add extra Channels or change the target group. You may expect us to always consult you on the best approach for your brand and the Campaign Fees associated with it.
9. For the best execution of our services, we will sometimes have to use the services of a third party. Of course, we only use third parties that we trust to be awesome professionals.
10. When we engage a third party, we are not liable for any shortcomings by this third party. You hereby authorize us to accept any general conditions stated by this third party (with possible limitations of liability).
Content
1. We are over the moon that you have decided to use our services. In order to provide the best content to our Users, we need to be able to gather as much Content from you as possible.
2. You are able to upload Content, or send Content to us in another manner.
3. Once you have agreed on using our services and send us Content, grant access to your press, media or client portal, or otherwise give us access to your Content, you immediately and implicitly give us permission to ‘slurp’ your Content. With this, we mean that we may scrape, harvest and/or extract other content from your website, social media, platforms or portals and use it as described in this article.
4. You give us and our Users permission for worldwide use of your content through all kinds of platforms, such as, but not limited to, social media, YouTube Channels, websites and any other on- or offline platform.
5. When you provide us with Content, or implicitly give us permission to ‘slurp’ Content, you also guarantee that you are allowed to do so, for instance because you are the copyright holder or have permission from the copyright holder to sublicense the Content for worldwide use. You indemnify us against all damage and liability arising from the Content provided to us by you.
6. Your permission also entails consent to modify the Content. We, our Users, your dealers and dealers from other brands that use our services, may change your Content, for instance by translating it. You also give permission to publish the Content without the name of the maker. You indemnify us of any claims with regard to personality rights of a maker in this respect.
7. When we use your Content, we ensure that it will be made available to be used by our Users who have indicated that they want to receive information from your brand. In addition, your Content is available to be used by dealers that sell your brand. You can indicate to us whether you wish that your Content is visible to our Users.
8. We do our very best to limit the availability of your Content to our Users, when you have asked us to do so. However, we cannot control each and every one of our Users. It might occur, for instance, that a User saves Content and posts it much later than intended. Unlawful use of the Content from our Platform by users or other Users of our Platform, falls outside of our responsibility. We cannot be held liable for this. Any damage must be recovered from the relevant User(s) who are in violation.
9. We’re excited that you have granted us and our Users the right to use your Content. However, we are not obliged to actually use all your Content. Simply because we cannot process all Content. In this, we have to make our own choices.
10. Slurped Content will be made available through our Platform for a maximum period of 1 year, unless agreed otherwise.
11. We can imagine that you might want to get insight and statistics on the Content we have slurped from you. Since we have to put a lot of work into this data, we may have to charge a fee for such insights. Let us know when you would be interested in data and statistics, and we will draft a quotation for you!
Platform Accounts for your team members
1. Several Accounts can be created for the same brand, for several of your dealers. Each dealer will then receive his own Account. Accounts can for example be used to manage Content, App Users, view dashboards, or manage Campaigns.
2. In order to register an Account, it must be linked to a valid e-mail address. It is therefore important that an active e-mail address is registered and the information in the Account is kept up-to-date. If we accidentally come across an inactive e-mail address, this e-mail address will (temporarily) be blocked.
3. When a dealer is no longer working for you, the dealer's Account can be unlinked by us. To do this, the dealer can inform us that he is no longer a representative. Or you can indicate to us that the dealer must be disconnected.
4. Because we unfortunately cannot see who does or does not represent you, we like to hear as soon as possible whether a dealer Account needs to be disconnected. If we are not informed in time that we need to disconnect, you are liable for the damage that might result.
5. If a dealer acts in violation of these T&C or acts unlawfully in another way or causes damage to us or our Users, for instance by violating article 8.4 of these T&C, we are entitled to block access to that dealer's Account, without being liable for any compensation. Your payment obligation will continue to exist in such a case.
Use of the Platform
1. We do our very best to have Content, Campaigns and information available 24/7. We try to implement technical updates and changes to our Platform with as little hindrance as possible. Unfortunately, we cannot guarantee that there will be no problems with malfunctions, updates and/or changes to our Platform. We are not liable for any damages resulting from a temporary non-availability of our Platform.
2. We think the privacy of our Users and End Consumers is very important. Therefore, we may have to refuse access to an Account or refuse Campaigns, if we find that the privacy of our Users and/or the End Consumers are being or might be violated, for instance when you, the Content and/or Campaign (either intentionally or not) may or actually do violate article 8.4 of these T&C, or if the processor agreement (DPA) that we conclude with you is or may not be complied with.
3. Uploading Content that falls outside of the sectors or categories that you have subscribed to, will be seen as a violation of our Platform. We have the right to remove this Content and/or block accounts linked to this Content.
4. We want to keep our Platform and our services positive and accessible to everyone. That is why we reserve the right to remove Content or Campaigns from our services and to block an associated Account if we see reason to do so, such as when we believe it:
  - to be discriminating with regard to appearance, race, religion, gender, culture, origin, or otherwise hurtful;
  - calls for violence against and/or harassment of another or others;
  - leads to or is the result of exploitation or abuse of others;
  - violates good morals or good taste, is violent or contains (a link to) pornographic material or pornographic websites;
  - promotes or commits illegal activities;
  - contains chain letters, junk mail or spam and/or where passwords or other personally identifiable information is requested for commercial or illegal purposes; or
  - found by us to be indiscreet or incorrect in any other way.
Compensation and payment
1. The Fees are agreed upon in our proposal(s) and invoiced.
2. We reserve the right to change Fees with a notification period of 2 months.
3. You pay for our services at the beginning of each period. Our standard period is 1 month. When we deviate from this period, because you want to pay per year or because you want a Campaign with a lead time longer or shorter than one month, we specifically agree on this in our proposal(s). We handle a payment term of 14 days.
4. We are a relaxed company, but we cannot give you financial advances for too long. If you have not paid our invoices for our Platform for 2 months, we unfortunately have to deny you further access to our services. Once your late payments have been paid, you will be granted access to our services again.
5. In order to make the invoicing as smooth as possible, you will have to provide the correct and necessary details for the invoicing in advance. If you have certain procedures for invoicing or in any other way make more demands on an invoice than provided for by law, then you should send us the necessary information for correct invoicing before we start delivering our services, including, for example, deviating address details and forms to be completed. If you do not pass this on to us in time, we cannot take it into account.
Dissolution, suspension, and termination
1. If you are not satisfied with our services, you can always easily ask us to cancel them. You can share your decision with us by sending us an e-mail. It is always up to us to decide whether we like to deviate from the standard notice period. Unless we inform you in writing that we agree to terminating our agreement prematurely or at an earlier date, our agreement will end after expiry of the (initial) term.
2. Our services, unless explicitly specified otherwise, have an initial term of one year, after which they are extended for subsequent terms of one year each, unless terminated by either Party taking into account the applicable notice period.
3. Unless explicitly agreed-upon otherwise, all services can be terminated by you on a yearly basis, at the end of the (initial) term. The standard notice period is 2 months. This means, if you wish to terminate the agreement, you must do so no later than 2 months prior to the expiry of the (initial) term.
4. Unless explicitly agreed otherwise, we can terminate our services unilaterally at all times, so also during a (or the initial) term, without penalty or any compensation due, taking into account a notice period of 2 months.
5. If both parties consent to it in writing, the agreement can be terminated immediately, without a notice period.
6. We are entitled to terminate the agreement immediately if the conduct or statements of you or your dealers harm the good name of, or otherwise cause or cause damage to, us and/or our Users. This includes, but is not limited to, criminal impropriety, expressions that attack the honour and good name or reputation of us and/or our users or an action that is reprehensible in any other way. In these cases, there is no notice period and we do not owe any compensation or other payment.
7. Both you and us are, reciprocally, entitled to terminate the agreement if the other party has filed for bankruptcy, has applied for suspension of payment or is in receivership.
Liability
1. We can only be liable insofar as it is based on a legally or contractually attributable shortcoming.
2. Our liability never exceeds the maximum of €2500, -, at least the amount covered by our liability insurance.
3. We are in no way liable for damage caused by errors in Content provided by you or other works. You indemnify us from such liability.
4. We are not liable for damage of any kind caused by the fact that we have assumed incorrect or incomplete information provided by or on behalf of you.
5. We are never liable for indirect damage, including stagnation in the regular course of affairs in your companies, loss of profit, missed savings, and consequential damage, in any way related to, or caused by our performance of work.
6. We always have the right, if and insofar as possible, to undo or limit your damage.
7. You indemnify us against any claims in connection with the execution of the agreement and which are attributable to you. In addition, you warrant and guarantee that you are the rightful owner and/or authorized user of the intellectual property rights on the materials or data provided by you, including any trademarks, (trade) names, logos and Content which you have shared with us under the agreement. You fully and effectively indemnify us for for all damages (including reasonable costs for legal representation), suffered by us as a result of a claim or action brought by a third party if and to the extent that such direct damages arise from a breach of the warranty stipulated in the previous sentence.
8. You are always liable for portraits that are made public by you or on your behalf. You indemnify us from all claims relating to the use of portraits that are supplied through you.
9. The limitations of liability included in these conditions do not apply if the damage is due to wilful intent or gross negligence on our part.
Privacy
1. When you use our services, you and us will exchange personal data. On the one hand, we will process personal data - both on your behalf (as processor) as well as when qualifying as a controller. At the same time, you may be processing data as well, qualifying as processor and controller. We handle personal data with care and transparency. To comply with our obligations under the GDPR, we have drafted a data processing annex (DPA). In this DPA we have written down all the agreements we wish to make with you, concerning the personal data we exchange with one another.
2. We will send you the DPA before you start using our services, in a digital form. You will then be able to agree to the DPA in writing, by digitally signing the DPA. Please read the DPA carefully and send us your written agreement as soon as possible.
3. Please take the DPA seriously. After all, we do value privacy. It is your responsibility to send us your written agreement with the DPA in time. If you refuse to enter into a DPA with us, or fail to send your digital written agreement, we are forced to immediately terminate our agreement with you. In such an event, the agreed Fees will nonetheless be charged and due by you.
Complaints
1. We do our very best to make sure that our cooperation with you goes as smoothly as possible. If you are not satisfied with our work and/or have objections to an invoice, report it as soon as possible. This way we can try to solve your complaints as quickly as possible. We will strive to achieve the best possible solution with you.
2. Complaints or objections do not suspend your payment obligations.
Other provisions
1. We may change or supplement these T&C. Changes will be communicated by us to you in good time and in writing.
2. If any part of these T&C proves to be void or voidable, the remaining provisions remain in force.
3. The United Nations Convention for the International Sale of Goods (CISG) is expressly excluded and does not apply to any legal relationship between us and you.
4. Dutch law applies to all legal relationships between us and you. Disputes will be submitted to the competent court in the district of Midden-Nederland, location Utrecht.