These Terms and conditions were created on the 23 July 2013.
1.1 In these General Terms and Conditions the following terms shall have the following meanings:
|User||A Channel and/or Supplier;|
|Supplier||A supplier of one or more Products through the Platform with whom Trividis entered into an Agreement, under which such supplier obtains a License and Support from Trividis;|
|Channel||A Channel with whom Trividis entered into an Agreement, under which such Channel obtains a License and Support from Trividis;|
|General Terms and Conditions||These general terms and conditions;|
|User Account||The username and user data of a User, which are (in combination with the Login Code) used by the User to log in to the Platform;|
|Login Code||A personal code which belongs to the User Account of User, being a password assigned by Trividis, which password may be amended by the User;|
|License||A User’s right to make use of the Platform;|
|Agreement||An agreement between Trividis and User;|
|Platform||An online software platform developed by Trividis, which enables Channel to include Products offered by Suppliers in its Web Shop and offer such products for sale in such Web Shop;|
|Product Information||The product information submitted to the Platform by Supplier, product specifications, EAN codes, images, etc.|
|Support||The services Trividis provides in accordance with article 5 of these General Terms and Conditions.|
|Trividis||Trividis B.V. with trade name Product2channel, a company with limited liability, incorporated and existing under the laws of the Netherlands, having its offices at Groest 104-106 (1211 EE) Hilversum, the Netherlands;|
|Web Shop||Every web shop included in an Agreement, which web shop is managed and/or owned by the Channel.|
1.2 Headings above the articles in these General Terms and Conditions are provided for convenience and do not affect the content and/or functioning of these General Terms and Conditions.
2.1 These General Terms and Conditions apply to all Agreements.
2.2 The applicability of other general terms and conditions, including, but not limited to, the general terms and conditions of User(s), are explicitly rejected and do not form part of any Agreement.
2.3 If one or more provisions of these General Terms and Conditions are invalid, the other provisions of these General Terms and Conditions remain applicable in full. In any such case, the parties shall act in consultation for the purpose of agreeing one or more new provision(s) to replace the invalid provision(s). Such replacement provision(s) shall meet the purpose and tenor of the original (invalid) provision(s) as closely as reasonably possible.
2.4 Trividis reserves the right at any time to amend these General Terms and Conditions. In case of an amendment, Trividis shall inform the User at least one (1) month prior to the date on which the amendment takes effect. Any amendment shall in principle also apply for any existing Agreements. If a User does not accept the amendment of these General Terms and Conditions, User shall be entitled to terminate the Agreement as per the date on which the new terms and conditions are set to take effect.
2.5 Deviations of these General Terms and Conditions are only valid if agreed expressly and in writing.
3.1 An agreement is only validly concluded after such Agreement is (duly) signed by both User and Trividis.
3.2 If and insofar the Agreement and the General Terms and Conditions contain provisions that are contradictory or (must) be interpreted as conflicting, the provisions from the Agreement will prevail.
4.1 The User can make use of the License by logging in to the Platform making use of the User Account in combination with the Login Code.
4.2 If a User forgets or loses his or her Login Code, User must notify Trividis hereof immediately in writing.
4.3 As part of the License the Channel has a right to use the Supplier’s Product Information in and for and on behalf of its Web Shop, without any restrictions.
4.4 Supplier expressly accepts that by offering Products through the Platform, a right of use is granted to Trividis and any and all Channels to use such Products, the Product Information and any other information in respect of the Products for various purposes, including but not limited marketing purposes, both through the Platform and through any other media to be used by Trividis.
4.5 Users can not derive any rights from the Product Information and/or any other information provided on the Platform in respect of a Product. All responsibility and liability for any information regarding a product fully remains with the Supplier of such Product.
5.1 Trividis strives to achieve the highest possible availability of the Platform, but does not guarantee the full and permanent availability of the Platform.
5.2 The Platform is maintained by Trividis and the expenses in connection with such maintenance will be borne by Trividis. For the purpose of maintenance Trividis may temporarily entirely or partially shut down the (access to) Platform. In any such event, Trividis will inform the User prior to such shut down due to maintenance, unless such notice is reasonably not possible.
5.3 User is obliged to report any failure in the functioning of the Platform as soon as possible to Trividis. Reported failures will be investigated as soon as possible by Trividis, unless such prompt investigation not reasonably possible.
5.4 If during the execution of the Agreement, telecommunications facilities are being used, including internet, User is responsible for the correct selection and timely and adequate availability of such services, except for those facilities directly used and managed by Trividis. Malfunctioning or unavailability of these facilities can not be invoked against Trividis, unless User proves that damages or expenses are the result of intent or gross negligence of Trividis or its management.
5.5 Trividis has the right to have certain work or services, which form a part of the Agreement, performed by third parties.
6.1 User agrees to use the Platform and License for the sole purpose for which the Platform is built and the License is granted.
6.2 User guarantees that it will at all times timely provide to Trividis correct and complete name and address information and any other data and information necessary for Trividis.
6.3 User agrees to take responsibility for ensuring that third parties will not have access to and/or are not in any manner entitled to use the Platform and/or User Account. In addition, the User shall ensure that is shall not (without authorization) access the User Account of a third party.
6.4 User is not allowed to amend any part of the Platform and/or any content shown on the Platform or (attempt to) modify, copy, reproduce, publish, distribute, grant a (sub)license or sell it. In addition, User is not allowed to (attempt to) decompile any part of the Platform or develop any products that are derived from the Platform.
6.5 User may not:
(i) Act in violation of any laws and/or regulations and/or these General Terms and Conditions;
(ii) In any way provide incorrect or misleading information on or via the Platform;
(iii) Violate the rights of third parties;
(iv) In any way (attempt to) influence or disturb the functioning of the Platform.
7.1 For the License and Support, User shall be obliged to pay the amounts that have been included in the Agreement.
7.2 All prices agreed upon are exclusive of Value Added Taxes (VAT) .
7.3 All agreed upon prices and rates are annually increased on January first (1st) in accordance with the most recent price index wages collective labor agreement for business services published by the Central Bureau of Statistics. If the price index is a negative figure in any given year, no price adjustment will be made.
7.4 All payments must be done in advance, prior to the commencement of the (relevant) period as specified in the Agreement, unless otherwise agreed.
7.5 Payment of any invoice must be done within the payment term included in the invoice. Invoices are only payable to Trividis B.V. In the absence of a specific payment term, payment by User must be made within fourteen (14) days as of the invoice date.
7.6 User is not entitled to set off or to suspend any payments due to Trividis.
7.7 Trividis will send electronic invoices. If the User wishes to receive an invoice via regular mail, a fee will be charged.
7.8 In case of overdue payment the User will be in default immediately without a notice of default being required to that end and User will be charged the statutory trade interest as referred to in article 6:119a of the Dutch Civil Code over the amount due.
7.9 In case of late payment Trividis is entitled to suspend its obligations to the User, including suspending the right of the User to access the Platform.
7.10 Payments from the User to Trividis shall always be first applied to compensate any interest and/or costs and then to pay the longest outstanding invoice/invoices, even if the User states otherwise when making a payment.
8.1 The Agreement is entered for the duration included in the Agreement. If no specific term is included in the Agreement, the duration of the Agreement will be for the period of one (1) year.
8.2 After the expiry of the period referred to in article 8.1, the duration of the Agreement will always be renewed tacitly for the length of the initial (or extended pursuant to this article 8.2) period, unless the Agreement is terminated by User or Trividis no later than one (1) month before the end of the then current term.
9.1 Parties may terminate the Agreement with immediate effect by sending a registered letter to the other party, without a term of notice being required and no obligation to pay for damages resulting from such termination in the event:
(a) the other party is in default regarding one or more of its obligations under the Agreement;
(b) the other party applies for a moratorium of payments or is declared bankrupt; or
(c) the other party has put a procedure in motion to wind up its business.
9.2 In case of termination of the Agreement, the License shall immediately end and User shall no longer be entitled to any Support from the date of the termination.
All intellectual property rights and related rights, including but not limited to copyright, trademark, patent, design right, trade name rights, database and neighboring rights, and rights to know-how, with respect to the Platform are solely held by Trividis.
11.1 User will act as responsible for the processing of personal data and Trividis as a processor within the meaning of the Personal Data Protection Act (in Dutch: Wet bescherming persoonsgegevens).
11.2 Trividis agrees that the purpose of the processing of personal data will be determined by User. User undertakes to provide Trividis timely with all data and information that Trividis reasonably needs, to be able to fulfill its obligations under the Agreement. While carrying out its obligations under the Agreement, Trividis may assume the correctness and completeness of the personal data that is supplied by or on behalf of User.
11.3 Trividis will process personal data only to the extent that is necessary for fulfillment of the Agreement and in accordance with the purposes as determined by User or as otherwise required by a provision of law. Personal data will not be saved, stored or processed in any other way by Trividis for any other purposes.
11.4 Trividis will not have the processing of personal data be carried out by a third party without the prior consent of User. User will not unreasonably withhold such consent.
11.5 Trividis will take appropriate technical and organizational security measures to secure personal data against loss or any form of unauthorized processing.
12.1 Parties shall at all times treat all information provided to them by the other party as strictly confidential and by no means divulge such information to any third party. Confidential information shall at all times be solely used by parties for the purpose for which such confidential information is provided to them.
12.2 Any and all information relating to the Platform and the information as referred to in article 11, shall in all events be considered to be confidential information.
13.1 Trividis shall not be liable for any non performance of an obligation, which is a result of force majeure.
13.2 “Force majeure” shall be understood to include: circumstances or events that are beyond Trividis’s control and will - irrespective of whether these circumstances or events were foressen or could be foreseen at the moment of entering into any Agreement – as a result of which Trividis is unable or cannot reasonably be expected to meet its obligations under any Agreement. These circumstances or events comprise in any case, but not exclusively: war, fire, floods, earthquakes, labor disputes, strikes, epidemics, government rules and/or similar rules, embargos, non-performance by User(s) or subcontractors or any other third party/parties deployed by Trividis or User(s) for the execution of any Agreement, interruption of the electricity supply, the non-availability of telecommunication services, software errors, inaccuracy and/or incompleteness of the Product Information provided by User(s) and (attempted) unauthorized intrusion in and/or the unauthorized use of the systems, networks and databases that belong to Trividis and/or the User(s) and/or which Trividis and/or the User(s) depend on and also all poorly performed work.
13.3 Trividis's aggregate liability for damages as a consequence of non performance by Trividis or a person for whom Trividis is legally responsible, is limited to direct damages and limited to the net invoice value (being the gross invoice value minus the VAT and other government levies) of the delivery to which the damage is related. Liability for indirect damages, including but not limited to loss of profits or loss of revenue is explicitly excluded.
13.4 Notwithstanding the preceding paragraphs, damages are only eligible for compensation if Trividis is notified in writing within a reasonable time, but in no event later than fifteen (15) days after the damages are suffered.
13.5 Claims on the ground that the provided services do not comply with the terms and conditions agreed upon, shall in all events expire after two (2) years.
13.6 Limitations of liability in this article or elsewhere in these General Terms and Conditions shall not apply in case of damage caused by intent or gross negligence of Trividis or intent or gross negligence of any person for whom Trividis is legally liable.
14.1 If any provision of these General Terms and Conditions is held to be invalid, illegal or unenforceable for any reason or in any respect whatsoever, such invalidity, illegality or unenforce¬ability shall not affect the other provisions of these General Terms and Conditions.
14.2 User may not transfer its rights and obligations under the Agreement and/or the General Terms and Conditions, unless with the prior written consent of Trividis. The consent by Trividis may be given under certain (later to be specified) conditions.
15.1 The Agreement(s) shall by exclusively governed by Dutch law.
15.2 Any disputes arising from or related to the Agreement or these General Terms and Conditions shall be exclusively settled by the competent court in Utrecht.