General terms and conditions
General Terms and Conditions of the private limited company Tradecast B.V., established in Zwolle and registered with the Chamber of Commerce of Oost-Nederland under number 62230697.
Article 1 Definitions
In these general terms and conditions the following terms are used:
Tradecast: the private limited company Tradecast B.V., regardless of whether trade is conducted under the name Tradecast B.V. or any other trade name belonging to Tradecast.
Customer: one or more third parties with whom Tradecast concludes one or more (sub)contracts and for whom Tradecast provides Service(s).
General Terms and Conditions: the present General Terms and Conditions that apply to all legal acts of Tradecast or any act of Tradecast which results in an obligation with (a) third party(ies).
Service: any work consisting of one or more components – irrespective of its material or immaterial nature – that Tradecast performs for and on behalf of (a) Customer(s) and/or any delivery of one or more goods.
Quotation: the offer of Tradecast to the Customer in which offer at least (summarily) the Service to be performed and the price is laid down.
Contract: the Contract concluded between Tradecast and Customer pursuant to which Tradecast provides the Service.
Content: audiovisual and textual material which is placed and/or referred to on the Service by either Tradecast, or the Customer.
Article 2. General/applicability of terms and conditions
2.1. The General Terms and Conditions apply to all legal acts of Tradecast and/or any act of Tradecast which results in an obligation with (a) third party (parties).
2.2. General terms and conditions of a Customer are explicitly rejected.
2.3. Tradecast does not accept any general (written) reference to general terms and conditions of a Customer.
2.4. If one or more of the provisions of the General Terms and Conditions are declared void or annulled, the remaining provisions of these General Terms and Conditions will remain applicable.
2.5. Tradecast reserves the right to amend the General Terms and Conditions at any time. Amendments shall also apply in respect of contracts already concluded. Amendments to the General Terms and Conditions and the effective date of the amended General Terms and Conditions will be communicated to the Customer by e-mail.
The Client can make it known before the effective date of the amended General Terms and Conditions that it does not agree with the amended General Terms and Conditions and is entitled to terminate the Agreement as of the effective date of the amended General Terms and Conditions.
Article 3. Formation of the agreement
3.1. Offers are made in writing (and/or by e-mail) and are entirely without obligation.
3.2.A Contract is concluded at the moment of receipt by Tradecast of the Offer sent by the Customer to Tradecast by mail, fax or e-mail and signed by the Customer.
3.3. A Contract between Customer and Tradecast shall in any case, in the absence of a signed Quotation, be established at the moment Tradecast commences work with respect to the Service, on behalf of the Customer.
3.4. If Tradecast starts performing the Service, without – for whatever reason – having returned a signed written Offer by the Customer, the Customer shall be deemed to have agreed to the Offer.
3.5. All Offers issued by Tradecast are without obligation. Tradecast is entitled to revoke Quotations issued. The Quotation shall at all times be based on the data provided by the Customer. The Client is and remains responsible for data (incorrect and/or incomplete) provided by it and included in the Quotation and/or Contract.
3.6. Errors or mistakes in offers on the website, Quotes and other publications of Tradecast are not binding.
Article 4. Performance of the Contract
4.1. Tradecast shall perform the activities for the purpose of the Service in a
careful manner and in compliance with the usual standards applicable in Tradecast’s field of expertise.
4.2. The Customer is aware that dissatisfaction with aesthetic parts of the Service shall never lead to attributable shortcomings on the part of Tradecast.
4.3. If and insofar as the Customer proposes changes to the Service, after the parties have agreed on the (manner of) execution of the Contract, such changes shall be considered additional work. Tradecast is in that case entitled to charge the prevailing price for that additional work, all this in addition to the already agreed price for the Service. In case changes result in less work, the agreed price shall remain applicable.
4.4. To perform the Service, Tradecast is (partly) dependent on the provision of data and information by the Customer. Tradecast cannot provide the Service if this data and information provision is not timely and/or complete. Tradecast shall never be accountable to the Customer if late and/or incorrect provision of data and/or information by the Customer leads to (a) defect(s) in the performance of the Service.
If the Customer, after explicit notice of default by Tradecast of the Customer – whereby a reasonable period to deliver and/or provide information is granted – remains in default with its delivery and information obligations, Tradecast is entitled to terminate the contract and the Customer is obliged to pay the damage suffered by Tradecast as a result.
4.5. Tradecast is entitled to engage (a) third party(ies) for the provision of the Service, without the consent of the Customer being required.
4.6. If Tradecast, in order to provide the Service, has to send goods to the Customer or to third parties by post, courier or in any other way, such sending shall take place at the expense and risk of the Customer. Customer is advised to take out appropriate insurance of the goods to be sent in that context, if required.
4.7. If due to a circumstance that Tradecast cannot actually be blamed for, the performance of the Service must be adjusted, this shall take place in consultation between the Customer and Tradecast. Customer is not entitled to terminate the contract under these circumstances.
4.8. Parties shall in all cases maintain absolute confidentiality regarding all that has become known to them as a result of the performance of the Service. All documents, samples, models, documents, films, content or any data carriers – written, digital and/or electronic – remain the property of the party providing them for the execution of the Service.
Article 5. Applications / use by Customer
5.1. The Customer exclusively acquires the agreed right to use the Service to be provided by Tradecast and is not entitled to transfer this right of use to one or more third parties without written consent of Tradecast.
5.2. The Customer is not permitted:
to use and/or apply the Service in violation of the law;
by means of the use and/or application of the Service and/or through the Service – in any way whatsoever – to develop, provoke, propagate, teach, propagate and/or in any way bring into the public domain, for whatever purpose, unlawful or morally reprehensible activities and/or points of view;
through use and/or application of the Service and/or through the Service, to possess and/or disclose in any manner whatsoever sexually explicit material of any kind;
make use of the Service, in whatever manner and/or with whatever use of other material, in such a way that damage is caused to one or more goods used by Tradecast, regardless of whether these goods are in the possession and/or used by Tradecast or by third parties.
Article 6. Fines
6.1. If a Customer – to any extent whatsoever – violates one or more of the provisions of the Contract and/or the General Terms and Conditions, the Customer shall forfeit to Tradecast, without notice of default and/or judicial intervention being required, a penalty of € 250,- per violation per day, regardless of whether the violation can be directly or indirectly attributed to the Customer.
6.2. The penalty has no damage-fixing character and Tradecast shall, in addition to the
penalty due, Customer shall hold Customer liable for damage, of whatever nature, actually incurred by Tradecast as a result of the violation(s).
6.3. In case of violation(s) as referred to in this article, Tradecast is entitled to terminate the performance of the Service immediately, without Tradecast being liable in any way towards Customer and/or one or more third parties as a result.
Article 7. Invoicing / payment
7.1. Tradecast is entitled to charge one or more advance payments to the Customer before the performance of the Service is started and/or during the performance of the Service. If the parties do not reach agreement on the amount and payment method and obligation of such advance invoice(s), Tradecast is not obliged to commence the performance of the Service and/or continue the performance of the Service.
7.2. Tradecast maintains a fatal term of payment with respect to its invoices.
of 14 days. The Customer shall be in default upon expiry of this term, in which case the Customer shall immediately owe the statutory commercial interest on the invoice amount.
7.3. All costs, of any extrajudicial and/or judicial nature whatsoever – including, for example, attorney’s fees, bailiff’s fees, court registry fees, all whether or not in legal proceedings – which Tradecast reasonably incurs to collect invoices or in the context of any dispute whatsoever with the Customer and related to performance of the Service, shall be borne by the Customer.
7.4. If, pursuant to the Service, Customer has to make periodic payments to Tradecast
7.4 If pursuant to the Service Customer has to make periodic payments to Tradecast (e.g. pursuant to a subscription) Tradecast is entitled to periodically implement price adjustments if such price adjustments:
- Due to inflationary reasons are necessary, and/or;
- due to other weighty (cost increasing) circumstances on the side of Tradecast, are necessary, and/or;
- do not exceed 5% of the last price used by Tradecast, and;
- do not occur two or more times within a period of three months, unless one increase has to do with inflation and the other with other serious (cost increasing) circumstances, in which case two or more increases within three months are allowed.
7.5. If Tradecast is forced to apply a periodic price increase higher than 5%, the Customer is authorized to terminate the Contract because of such price increase within 30 days after the actual increase. After expiry of the 30-day period, such authority shall terminate.
7.6. Tradecast retains at all times the right to pass on fluctuations in exchange rates related to the Service or purchases from third parties related to the Service directly to the Customer at the next payment obligation of the Customer.
7.7. If the Customer terminates the Contract as referred to in article 7.5 of the General Terms and Conditions, the Customer shall owe Tradecast the normal price that Tradecast would be entitled to charge in the event of full and proper performance of the Contract, all this on a pro rata basis. If and insofar as Tradecast has (had to) engage one or more third parties for the performance of the Service and Tradecast is not authorized, upon termination of the Contract by the Customer, to terminate the relevant contract(s) immediately, the Customer shall also owe Tradecast the costs that Tradecast owes to such third party/parties until the first moment on which Tradecast can terminate the contract(s) with such third party/parties.
7.8. The Customer is obliged to pay Tradecast’s invoice(s) without the Customer being entitled to invoke set-off, suspension, withholding, discount or any other legal instrument whatsoever which prevents full payment of the invoice(s).
7.9. The prices quoted by Tradecast in the context of any discussion, negotiation and/or Quotation are exclusive of VAT and – unless otherwise agreed in writing – exclusive of third party costs, material costs, transport costs, travel costs, accommodation and subsistence costs, and/or any other comparable costs of Tradecast and/or Tradecast’s auxiliaries.
7.10. If two or more Clients issue one (partial) order to Tradecast, those two or more Clients are jointly and severally liable for payment of the invoice(s).
Article 8. Suspension
8.1. Tradecast is entitled to immediately suspend the performance of the Service,
if the Customer is in default with any payment obligation.
Article 9. Termination of the contract
9.1. The Contract between Customer and Tradecast shall end by both parties having fulfilled all conditions of the Contract and/or in a manner as described in these General Terms and Conditions.
9.2. The Customer is not entitled to terminate the Contract early, except for important reasons. If the Customer nevertheless proceeds to terminate the Contract and Tradecast is forced to accept such termination (e.g. in case of important reasons), the Customer must compensate Tradecast for the damage – direct or indirect – Tradecast incurs as a result of such termination. The Customer shall also owe Tradecast, by way of penalty, 50% of the fee that would still be due to Tradecast pursuant to the Contract, plus VAT. This penalty has no damage-fixing character and shall be payable by the Client without judicial intervention.
9.3. If the Contract between Tradecast and the Customer has the nature of a continuing performance contract and no specific agreements have been made regarding the termination / continuation of the Contract, the Customer may only terminate the Contract at the end of the month with due observance of a notice period of four months.
9.4. The notice period as referred to in art. 9.3 of the General Terms and Conditions shall be longer if and insofar as Tradecast has had to engage one or more third parties as part of the performance of the Service, which contract(s) with such third party cannot be terminated within the aforementioned period of four months. In such case a notice period equal to the period Tradecast is required to observe in such contract(s) with such third party(ies) shall apply, in all cases with a minimum of four months.
Article 10. Liability
10.1. Tradecast shall not be liable for any damage suffered by Customer and/or third party(ies) and/or suffered by such third party(ies) as a result of the performance of the Service, barring intentional and/or gross recklessness of Tradecast.
10.2. If there is intent and/or gross recklessness of assistants and/or subordinates of Tradecast, the liability of Tradecast for damages of the Customer is also excluded.
10.3. In all cases, if and insofar as Tradecast, for whatever reason, would be liable and liable for damages suffered by the Customer and/or third parties, such liability for damages shall never exceed 50% of the total sum excluding VAT of the amounts invoiced and received by Tradecast to the Customer pursuant to the Service. If and to the extent Tradecast has made periodic arrangements with the Customer, the aforementioned liability for damages shall be limited to an amount equal to twice the value of the periodic bill that Tradecast has invoiced and received payment from the Customer.
10.4. Tradecast is not liable for the placement of and reference to Third Party Content posted by the Client. The Content shall at all times remain the property of the rightful owner and does not become the property of Tradecast by posting and referencing. Customer indemnifies Tradecast for any claim by (a) third party(ies) regarding Content referred to in this article.
Article 11. Dispute settlement / choice of forum
11.1. Onlyx Dutch law is applicable to the obligation(s), such as, but not limited to, the (performance of) the Service, between Customer and Tradecast.
11.2. Only the competent court of the District Court of Overijssel is authorized to take cognizance of disputes.
Article 12. Policy regarding personal data
12.1. Tradecast is entitled to collect personal information from the use of the Service by the Customer.
12.2. Tradecast may collect data about users of the Service and the Customer either with its own technology or with technology of third parties.
12.3. Tradecast is entitled to use collected personal information for the purpose of improving the Service for Customer and consumer.
12.4. The processing of personal data by Tradecast is subject to the privacy statement of Tradecast.
Article 13. Software
13.1. The Customer is granted a non-transferable right of use for the duration of the contract with respect to the Software and associated user documentation. The Client agrees to the license terms of the supplied Software and user documentation.
13.2. Tradecast is not responsible for the use of the Software by the Client in violation of the law, general terms and conditions of third parties.
Appendix I Conditions regarding hosting and streaming.
This section of the General Terms and Conditions contains provisions that apply exclusively to Internet services such as, for example, streaming, (web) hosting, e-mail and/or domain registration.
The Customer is not permitted to:
make use of the Service, in any way and/or with any use of other material whatsoever, in such a way that damage is and/or can be caused to one or more servers used and/or to be used by Tradecast, regardless of whether these servers are owned by Tradecast or by third parties to be engaged by Tradecast.
The Contract for hosting and streaming is entered into for the period of three (3) years, unless otherwise agreed upon in writing.
Tradecast takes great care for the availability of the Service, making every effort to provide optimal availability. Tradecast cannot guarantee that connections such as cable connections and/or other connections to hosting parties and/or streaming services at Amazon Web Services will be available at all times. The use of the services of Amazon Web Services is subject to the general terms and conditions of Amazon Web Services (https://aws.amazon.com/agreement/).
Tradecast is not liable for damages suffered by the Customer due to unavailability of the Service due to defects in connections in services and purchased services of third parties that provide availability of the Service.
The General Terms and Conditions of Tradecast shall also apply in full to the hosting of websites and/or Internet services referred to in this appendix, insofar as they do not conflict with the in this appendix.