Terms and Conditions

1. Definitions

1. The following terms are capitalized in these RACK Terms and Conditions, both in the singular and in the plural. These terms have the following meanings:

Agreement: The agreement between RACK and the Client regarding the provision of the Service;

Client: A natural person who or legal entity that has concluded, or will conclude, an Agreement with RACK;

RACK Terms and Conditions: These terms and conditions of RACK including all applicable Work Order;

IP Rights: All intellectual property rights and associated rights such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as rights to know-how and performances on a par with these rights;

Parties: RACK and the Client;

Personal data: Each piece of information relating to an identified or identifiable natural entity;

Work Order: An appendix to RACK Terms and Conditions with specific provisions relating to the Service to be provided; and

Service: The services to be provided to the Client by RACK pursuant to the Agreement.

2. General

1. The RACK Terms and Conditions apply to and form an integral part of all offers and quotations of RACK, Agreements and any other legal acts related thereto between RACK and the Client or its legal successor. In addition to these RACK Terms and Conditions, the specific Work Order(s) to the RACK Terms and Conditions that have been agreed between RACK and the Client also apply.
2. If the RACK Terms and Conditions state that an act must be carried out in writing, this is deemed to refer to digital communication mediums such as email as well.
3. Any departures from the RACK Terms and Conditions are only valid if they have been agreed explicitly in writing by RACK and the Client and they only apply to the specific agreement for which they were agreed.
4. The RACK Terms and Conditions will always prevail over any purchasing or other terms and conditions used by the Client.
5. Once these RACK Terms and Conditions have been applied to a legal relationship between RACK and the Client, the Client is deemed to have agreed in advance to the applicability of these RACK Terms and Conditions to any Agreements concluded or to be concluded thereafter.
6. Electronic communication between the Parties will be deemed to have been received on the day it was sent, unless proof to the contrary is furnished.

3. Quotations and Agreements

1. Quotations and other offers made by RACK are without obligation and should be regarded as an invitation to make an offer to form an Agreement, unless RACK has indicated otherwise in writing.
2. Offers and quotations lose their validity two weeks after their date, unless otherwise indicated in writing.
3. The Client warrants that the details disclosed to RACK, on which RACK has based its offer, are correct and complete. If those details should prove not to be correct or complete, RACK is entitled to modify the offer.
4. An Agreement is formed by written confirmation from the Client of an unmodified valid quotation and/or offer made by RACK.

4. Performance of the Agreement and delivery

1. RACK will perform the Agreement to the best of its knowledge and ability and in accordance with the standards of the profession. The Agreement to be formed between RACK and the Client involves a best-efforts obligation, unless and to the extent that RACK has explicitly promised a particular result in the written Agreement and the result concerned is also described in the Agreement in a sufficiently precise manner.
2. Any arrangements about a service level (Service Level Agreement) will always be agreed on in writing.
3. In the Agreement the Parties will determine the delivery term and delivery dates as well as the place and manner in which the Services will be delivered and/or provided. The duration of an assignment depends on various factors and circumstances, such as the quality of the data and information disclosed by the Client and the cooperation of the Client and relevant third parties. The aforementioned delivery terms are therefore not strict deadlines, unless the Parties have explicitly agreed otherwise in writing. In the event that a delivery term or other term is exceeded, or is likely to be exceeded, the Parties will consult with each other as soon as possible in order to take suitable action.
4. If it has been agreed that the Agreement will be performed in phases, RACK is authorized to postpone the commencement of the Services from part of a subsequent phase until the Client has approved the results of the prior phase in writing.
5. RACK is not obliged to follow instructions that alter or add to the content or scope of the agreed Services; if such instructions are followed, the activities concerned will be paid in accordance with RACK usual rates.
6. RACK is entitled to have the Agreement carried out by third parties wholly or in part, or to engage third parties for the performance of the Agreement.
7. Services will be deemed by the Parties to have been accepted if the Client has not substantiated in writing and in detail within five (5) working days after delivery of the Services concerned why the Services have not been accepted. If they are not accepted, RACK will aim to replace the Services or adjust them within a reasonable term
8. The risk of loss, theft, misappropriation or damage to items of property, products, information/data, documents or programs created or used in the context of the performance of the Agreement passes to the Client when the Client or an auxiliary person, servant or agent of the Client has taken actual possession of the goods.

5. Relationship of the Parties

1. The relationship between the Client and RACK will be that of independent Parties, which means that RACK and all staff of RACK shall not be considered employees under any employment policy or benefit plan.
2. The Client shall have no right to control or direct the details, manner or means by which RACK accomplishes the results of the Service, other than ensuring compliance with policies, procedures and standards that are applied to third-party vendors and service providers.

6. Payment

1. All prices are exclusive of turnover tax (VAT) and other government levies.
2. Unless explicitly agreed otherwise, price indications, estimates, budgets and/or cost estimates issued by RACK are merely for information purposes, and no rights or expectations may be derived from them. Only if the Parties have agreed is RACK obliged to inform the Client when a cost estimate or estimate will be exceeded.
3. The Parties will set down in the Agreement the date or dates on which RACK will charge the fee for Services to the Client. The Client will pay invoices in accordance with the terms of payment stated on the invoice. In the absence of a specific arrangement, the Client will pay within seven (7) days after the invoice date.
4. If the Client does not pay the amounts due on time, the Client will owe statutory interest on the outstanding amount without any demand or notice of default being required. If after a demand or notice of default the Client still fails to pay the claim, RACK may refer the debt for collection, in which case the Client will be obliged to pay, in addition to the total amount due, all judicial and extrajudicial costs, including costs of external experts.
5. RACK is entitled to retain or suspend Services that are still in its possession or in performance if the Client does not comply with its payment obligation, until the Client has settled its payment obligation, regardless of whether the arrears are related to the Services retained by RACK.
6. Budget allocated to RACK for paid media, will remain on RACKs treasury balance for a maximum duration of three months or until the end of an Agreement. After which RACK reserves the full-right to deploy a campaign with the remainder of the budget within the spirit of the Agreement.

7. Service Amendment

1. The Client accepts that the time schedule of the Agreement may be affected if the scope of the Agreement is expanded and/or altered while the Agreement is still being performed. If the interim alteration is possible, is agreed by RACK and has influence on the agreed remuneration, RACK will notify the Client of this as soon as possible.
2. If an alteration to the Agreement results in extra requests or wishes on the part of the Client and RACK must carry out extra work (additional work), this work will be charged to the Client on the basis of costs and rates that apply at that time, unless explicitly agreed otherwise in writing.
3. RACK is entitled to carry out this additional work without the Client’s advance written permission to the extent that the costs entailed by this additional work are not more than ten percent (10%) of the originally agreed total payment.
4. If the costs of extra work are more than ten percent (10%), RACK will inform the Client of this. In that case, the Parties will consult and discuss measures to be taken.

8. Client Obligations

1. The Client will ensure that all data and/or information that RACK has indicated are necessary, or which the Client reasonably ought to understand will be necessary for the performance of the Agreement, including information about legislation or regulations to be complied with by RACK that applies specifically to the Client’s field of work, are disclosed to RACK in good time and will cooperate with RACK to the extent that the latter requires. Quotations and offers issued by RACK as well as the Agreement concluded afterward are based on the information disclosed by the Client.
2. If information needed for the performance of the Agreement is not disclosed to RACK in good time, RACK is entitled to suspend performance of the Agreement and/or to charge to the Client the extra costs arising from the delay at the usual rates that apply at that time.
3. To the extent that in the context of the Agreement RACK grants digital access to Client such as user names and/or passwords, the Client is responsible for these user names and/or passwords and is entirely and independently liable for any misuse made of the user names or passwords, unless such misuse is the result of intent or gross negligence on the part of RACK.
4. To the extent that RACK grants digital access such as user names and/or passwords in the context of the Agreement, the Client is prohibited from disclosing these user names and/or passwords to third parties without RACK’s consent.

9. Termination

1. An Agreement takes effect on the date stated in Article 3 for the period agreed in writing between the Parties and ends by operation of law on the date agreed by the Parties or when the provision of Services has been completed.
2. Client may not terminate the Agreement prematurely, unless explicitly agreed otherwise or if RACK is proven to have defaulted with rendering its Services.
3. RACK may terminate the agreement effectively immediately if there are substantial concerns of ethical or moral integrity for RACK or any of its stakeholders. This includes but is not limited to market manipulation, wash-trading, blacklisted Venture Capitalist and more. In the event RACK exercises termination per this article, RACK will cooperate to move the Work Order to another (single) organization for the maximum duration of two (2) working days while maintaining remuneration.
4. RACK may terminate part or fully an Agreement for any reason, without cause, upon thirty (30) days written notice in which case RACK must complete all Services described in the Work Order effective for the month the Agreement is applicable. Work completed by RACK will maintain remuneration.
5. Each of the Parties is entitled to dissolve the Agreement wholly or in part if the other Party is declared bankrupt/insolvent or is granted a suspension of payments, as well as if the other Party's business is closed down or liquidated other than for purposes of reconstruction or merger of companies, or if the decisive control of the business of the other Party changes.
6. The Agreement may only be dissolved on the basis of attributable failure after a written notice of default has been sent that is as detailed as possible, with a reasonable term being set within which the failure can be remedied, unless these RACK Terms and Conditions or the law provide otherwise.
7. If the Agreement is dissolved, anything that RACK has delivered and/or carried out as well as the related payment obligation will not be undone unless the Client proves that RACK is in default with regard to the material part of those services. Amounts invoiced by RACK before dissolution in connection with anything RACK has already properly performed or delivered in performing the Agreement will continue to be owed in full with due observance of the provision in the preceding sentence and will become immediately due and payable at the time of dissolution.
8. If the Agreement is dissolved or terminated, all rights granted to the Client will cease to have effect. The Client will no longer be authorized to make use of the Service and Client will lose access to digital facilities provided by RACK.
9. Articles that, by their nature, are intended to continue to apply after the end of the Agreement will remain fully effective after the Agreement is terminated.

10. IP Rights

1. Unless otherwise determined in the Agreement, all IP Rights to all the Services provided in the context of the Agreement as well as to all other materials or information made available by RACK will be vested exclusively in RACK and/or its licensors.
2. Nothing in these RACK Terms and Conditions and/or the Agreement implies a transfer of IP Rights. The Client will obtain solely the non-exclusive and non-transferable right of use to the Services for the purposes stipulated in the Agreement and on the conditions stipulated in the Agreement. Unless otherwise stipulated in writing, the right of use granted applies only for the duration of Services.
3. The Client is not permitted to remove or alter any identifiers concerning IP Rights from the results of Services.
4. RACK is permitted to use the Services and the materials used for the implementation of the Agreement, such as designs, drawings, films, software, files whether electronic or otherwise, reports, formats and interviews, for purposes of its own promotion and/or publicity, unless otherwise stipulated in the Agreement.
5. RACK reserves the right to introduce technical protective measures into the Services. The Client is not permitted to circumvent these technical protective measures or to offer means to do so.
6. RACK indemnifies the Client against legal action by third parties based on the allegation that the Services or parts thereof developed by RACK infringe IP Right currently in force on the condition that the Client informs RACK immediately in writing of the existence and the substance of the legal action and leaves the handling of the case, including affecting a settlement, entirely to RACK. The Client will give RACK any powers of attorney, information and cooperation necessary to defend itself against such legal action, if necessary in the name of the Client.
7. Should the Services, in whole or in part, constitute an infringement and any use of it be enjoined or threatened to be enjoined, RACK will notify the Client and, upon the Client request and at the RACKs expenses:
1. Procure for the Client the right to continue use of the work, or portion of it, as applicable;
2. Replace or modify the work, or any portion of it, with a non-infringing version, provided that the replacement or modification meets the specifications of the Work Order;
3. Exempt from this are media and content that is broadly considered public domain (c.q. Meme’s, GIFs, etc.) or are content and media that can be considered public.
8. The above-mentioned obligation will not apply if the claimed infringement is connected with:
1. materials made available to RACK by the Client; and/or
2. changes/request the Client has made, or has had third parties make, to the Service.
9. If according to a binding court decision the Services developed by RACK itself infringe any IP Right vested in a third party, or if in the opinion of RACK there is a reasonable chance that such an infringement has occurred, RACK will if possible ensure that the Client can continue to use the Service (or something functionally equivalent) without interruption. If in RACK’s sole opinion, it cannot ensure that the Client can continue to use the Service provided without interruption, or that it will only be able to do so in a way that is unreasonably onerous (including financially) for it, RACK will take back that which has been delivered and will credit the acquisition costs after deducting a reasonable usage fee. Any other or further liability or obligation to indemnify on the part of RACK on account of infringement of IP Rights of third parties is entirely excluded.
10. RACK maintains ownerships of all its technologies, infrastructures, goodwill, creative assets (project files), databases, accounts, content and anything that can be regarded as sensitive information in the broadest sense of the word. This includes but is not limited to: IT infrastructure, work assets, technology, creative technology, documentation, knowhow and more.

11. Privacy

1. If in the context of performing the Services RACK must process Personal Data of customers of the Client, RACK must be deemed to be the “processor” and the Client must be deemed to be the “controller”.
2. The Client and RACK conclude a processing agreement that governs the processing of Personal Data by RACK in accordance with relevant law, if applicable.

12. Confidentiality

1. The Parties will treat all information they obtain from one another in any form whatsoever - written, verbal, electronic or physical - including but not limited to software, code, source code, programs, applications, customer details, know-how, technical specifications, documentation (“Confidential Information”) as strictly confidential and will keep it secret.
2. The Parties will only use the Confidential Information for the purposes for which it was disclosed and in doing so, they will observe at least the same duty of care and safeguards that apply to their own internal confidential information. The Parties will only disclose the Confidential Information to the extent necessary in the context of the Agreement and its implementation.
3. The obligations to maintain secrecy with regard to the Confidential Information will not apply to the extent that the Party that received the information can demonstrate that the information concerned:
1. was already known to it when it was received;
2. was already publicly known when it was received;
3. became publicly known after receipt and this is not attributable to the receiving Party;
4. was received in a lawful manner from a third party along with the right to communicate it to the public, free of any obligation to maintain secrecy;
5. must be disclosed pursuant to legislation or regulations or pursuant to a court order and the disclosing Party has informed the other Party of such an obligation to communicate it to the public;
6. was made public with the approval of the Party disclosing it.
4. For the duration of the Agreement and one (1) year after it terminates, except with the advance consent of the other Party neither Party will employ employees of the other Party who are or were involved in the implementation of the Agreement, nor will it employ them or have them work for it in some other manner, directly or indirectly.

13. Liability

1. RACK’s liability for attributable failure to perform its obligations and/or on the basis of an unlawful act is limited to the reimbursement of direct damage sustained by the Client up to a maximum of the amount paid out in the case concerned by RACK’s insurance, or up to a maximum of the amount of the fee stipulated for the performance of the Agreement, with the fee stipulated for three months applying in cases of continuing performance contracts or service level agreements.
2. Any liability of RACK for anything other than direct damage (“indirect damage”), including but not limited to consequential damage, loss and/or damage to data, loss of profits and loss of sales, is excluded.
3. The limitations referred to in the preceding paragraphs of this article will not apply if and to the extent that the damage is the result of intent or willful recklessness on the part of RACK.
4. In all cases, RACK is only liable on account of an attributable failure to perform the Agreement if the Client immediately and in the form of a proper written notice informs RACK that it is in default, stating a reasonable term in which the attributable failure can be remedied, and after this term RACK continues to fail attributable to perform its obligations, except in the event of permanent attributable failure. The notice of default must comprise a description of the failure that is as complete and detailed as possible so that RACK is able to respond adequately.
5. The creation of any right to compensation is always conditional on the Client reporting the damage to RACK in writing as soon as possible after it has come about. Any claim for compensation against RACK will cease to exist simply with the passage of one (1) month after the claim arose.
6. The Client bears the full risk and responsibility for its use of the Services. RACK does not accept any liability for the use made by the Client of the Services. The Client indemnifies RACK against any claims of third parties arising from the Client’s use of the Services.

14. Force majeure

1. In the event of force majeure there is no attributable failure in the performance of the Agreement by the Parties.
2. Force majeure includes, among other things, disruptions in the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, failure on the part of the Parties’ suppliers, failure on the part of third parties enlisted by the Parties, disruptions in the internet connection, hardware malfunctions, malfunctions in networks, including telecommunication networks, and other unforeseen circumstances.
3. If the force majeure lasts at least thirty (30) days, the Parties are entitled to dissolve the Agreement without being obliged to reimburse any damage, to undo any work or to pay any compensation for such dissolution.
4. If RACK can still perform in part at the time of the force majeure, or if it has performed, it is authorized to perform this service and to invoice it separately, as if it concerned a separate Agreement.

15. Transfer of rights and obligations

1. The Parties may only license, sublicense or transfer the rights and obligations arising from the Agreement to third parties if the other Party agrees to this in writing.

16. Disputes

1. In the event of a conflict between provisions in an Agreement and the RACK Terms and Conditions, the provisions of the Agreement will prevail. In the event of a conflict between the RACK Terms and Conditions and a specific Work Order, the provisions in the specific Work Order(s) will prevail.
2. If and to the extent that any provision in these RACK Terms and Conditions are declared to be null and void or are annulled, the other provisions in the RACK Terms and Conditions will remain in full force. In that case, the Parties will consult to determine a new provision to replace the provision that is null and void or that has been annulled, thereby taking the purport of the void or annulled provision into account as far as possible.
3. If a dispute between the Parties cannot be resolved to their satisfaction, before submitting the dispute to a court it will be submitted to the Parties’ authorized representatives to investigate the possibilities of a settlement, or to an independent mediator for mediation.

17. Governing Law

1. These General Terms and Conditions shall be governed by and construed and enforced in accordance with the laws of Singapore, without giving effect to the conflict of laws principles thereof.
2. Any disputes the Parties are not able to resolve within their organizations arising from the Agreement, must be brought in the courts of Singapore.