Provider Terms and Conditions Viafix
These Provider Terms and Conditions entail a license and its terms to use the Application, as agreed upon between you (the Provider, as defined below) and Viafix. Your acceptance of these Provider Terms and Conditions is necessary before you can use Viafix’ Application and offer your Offers to individual Users (as defined below).
- In this agreement, capitalized words and expressions have the meanings specified as referred to below:
Account the personal environment of Provider, accessible through the Website, to which the Provider obtains access after entering his Login Details;
Advertisement Offering: the non-committal information regarding one or more featured product(s), service(s), request(s) and/or Giveaway(s), submitted by Provider to the Application and on the basis whereof i) a Viafix-code is generated and ii) the User – whether or not after scanning a Viafix-code – can submit a Request;
Agreement: the agreement between the Provider and Viafix, on the basis of which the Provider can use the Application and to which these Provider Terms and Conditions apply;
Application: the remotely accessible mobile/web application and all underlying technical infrastructure, developed by Viafix and by means of which the Provider, amongst other things, can manage its contact information, upload its Content, as well as download Requests and view Reports;
Content: all information, data, video’s, photo’s, weblinks and other materials provided, changed or uploaded by the Provider into its Account, which include Advertisement Offerings, Product feeds and Polls;
Credit: the digital currency which can be purchased by the Provider through the Application. The Provider can use this currency to pay for the downloading of Requests;
Giveaway: an Advertisement offering regarding a contest or lottery organized by Provider, to which a User is referred after scanning or manually inserting a specific Viafix-code, and in which contest or lottery the User can participate free of charge and win a Prize, whether or not after a Transaction regarding a specific, free Offer is established;
Intellectual Property Rights: all intellectual property rights and related rights such as copyright, trademark rights, patent rights, design rights, trade name rights, database rights and neighboring rights, as well as rights to know-how;
Login Details: the combination of the username and password as submitted by the Provider when entering into the Agreement, with which the Provider gains access to its Account;
Offer: a proposition offered by the Provider to Users via the Application, as well as all information related thereto, in order for Users to base an Request on, which proposition forms a part of either the Advertisement Offerings or the Product feed. Offers are always non-committal;
Party/Parties: Viafix and/or Provider;
Poll: an opinion poll or survey, which is published by the Provider in the Application and in which a User can participate in order to give and directly compare with others an opinion, after scanning or manually inserting a Viafix-code;
Prize: any free of direct costs award a Provider offers to Users competing in a Giveaway;
Product code: a (bar) code located on a product or its packaging which a User – after scanning or manually inserting the code – can use to search for an Offer in a Product feed in the Application;
Product feed: the non-committal list of goods and/or services with information like Product codes, descriptions, visuals, pricing, estimated delivery times and terms and conditions, placed in the Application by the Provider for Users to look for Offers and make Requests.
Provider: the legal entity that enters into this Agreement after acceptance of the Provider Terms and Conditions;
Provider Terms and Conditions: these terms and conditions;
Publisher: a Provider that has indicated to be a ‘publisher’ during the creation of its Account and can, after being granted permission by Viafix, view Reports of affiliated Providers in its Account, in accordance with Article 7;
Report: an automatically generated overview, visible in the Provider’s Account, in which overview the Provider can view data regarding the use of Viafix-codes by Users;
Request: the request of a User to make use of an Offer of Provider;
Transaction: the binding agreement between a Provider and a User, which comes in effect after the acceptance by Provider of a Request placed by User, and on the basis of which Provider is held to provide the Offer to User in accordance with its (delivery) terms and conditions, whether or not against payment;
User: the person, whether or not acting on behalf of a third party if entitled to do so, a third party possibly also being a legal entity, that makes use of the Application and can in that respect view Offers, submit Requests, take part in Giveaways and answer Polls, whether or not after scanning or manually entering a Viafix-code or Product code;
Viafix: the provider of the Application, being Viafix Nederland B.V., a limited liability company incorporated under the laws of The Netherlands, having its registered office at (2596 AL) The Hague, on Zuid Hollandlaan 7;
Viafix-code: a promotional code or keyword automatically generated after submitting an Advertisement Offering, which directs a User – after scanning or manually entering the code in the Application - to a Poll, a Giveaway or specific Offer in the Application;
Website: Viafix’ website, available at www.viafix.com, and all underlying subpages.
- These Provider Terms and Conditions apply to all legal acts of Viafix, all legal relationships between Parties, any use of the Application by the Provider and all offers and Agreements.
- Viafix is at all times authorised to amend or supplement these Provider Terms and Conditions. The most up-to-date Provider Terms and Conditions can always be found in the Website. The amended or supplemented Provider Terms and Conditions will be brought to the Provider’s attention during the Provider’s use of its Account. The Provider has to accept the amended Provider Terms and Conditions before it can continue its use of the Application.
- If the Provider does not agree to the amended Provider Terms and Conditions, its sole remedy is to terminate the use of the Application and its Account, in accordance with Article 17.
- The applicability of purchasing or other conditions of the Provider is expressly rejected.
- If at any time any provision of these Provider Terms and Conditions is or becomes illegal, void or invalid for any reason whatsoever such invalidity shall not affect the validity of the remainder of the Provider Terms and Conditions and such invalid provision shall be replaced by Viafix by such other provision which, being valid in all respects, shall have an effect as close as possible to that of the replaced provision.
- Agreement, Application and Availability
- To use the Application, Provider must enter into an Agreement with Viafix, to which Agreement these Provider Terms & Conditions apply. To enter into an Agreement, the Provider must follow the registration process on the Website, and create an Account. The Provider guarantees that all information provided during this process is up-to-date, correct and complete. If the (company) data submitted by the Provider is at any point no longer up-to-date, correct or complete, the Provider shall modify or complete the required data. The Provider is not allowed to register an Account on behalf of another entity.
- After submitting its data through the registration process on the Website, Viafix will send an activation code and an overview of the submitted data to Provider. To validate and conclude the Agreement and to activate its Account, the Provider shall use the activation code by scanning the code with the Application, digitally signing the Agreement and submitting the Agreement through the Application.
- On its Account the Provider can – among other things –upload and manage Content – including its Product Feed, Advertisement Offerings and Polls – purchase Credits, receive and process Requests of Users and view Reports.
- The Provider is responsible for maintaining secrecy with regard to the Login Details for its Account. As soon as the Provider knows or has reason to suspect that its Login Details have come into the hands of unauthorized persons, the Provider must inform Viafix of this without delay, without prejudice to his own obligation to immediately take effective action, such as modifying its Login Details.
- The Provider accepts and acknowledges that it is at all times responsible and liable for the use of the Application by third parties through its Account. The Provider indemnifies Viafix against any and all damage and costs arising from and/or related to the access to or the use of the Application by third parties through Provider’s Account.
- Viafix may at all times (i) make functional, procedural or technical changes or improvements to the Application and (ii) (temporarily or permanently) take out of service, restrict the use of or terminate the Account, without becoming liable to the Provider.
- The Provider is solely responsible for the purchase and/or the proper operation of the infrastructure necessary to use the Application. Viafix is never liable for damage or costs on account of transmission errors, malfunctions or non-availability of computer, data or telecom facilities, including the internet.
- Provider can use the Application to offer Polls to Users. To offer a Poll to User, Provider must create a Poll in its Account. The Provider may choose between the formats of a Poll as available in its Account.
- After creating a Poll, a Viafix-code will be generated and made available to Provider. This Viafix-code can be published by the Provider in online or offline media with the communications regarding the Poll. By scanning or manually inserting the Viafix-code in the Application, a User is able to view and participate in the Poll. After the vote, the User is presented with the then current results of the Poll.
- Viafix does not gather any (personal) data of the User participating in the Poll. However, a unique ID is generated for that User, as specified in Viafix’ Privacy Statement(www.viafix.com), to prevent Users from participating multiple times in the same Poll. The individual vote of a User will not be made available to any party.
- Provider is able to view and follow the real-time results of the Poll in the Application.
- Viafix endeavors to generate and show accurate and up-to-date Poll results. However, Viafix does not warrant the continuous availability of the results, nor the accuracy of Poll results and the Provider is at all times fully responsible and liable for any (legal) acts it bases on the outcome of a Poll.
- The Provider warrants that the content of any Poll it submits to the Application is not unlawful, does not contain explicit content/language or infringes the rights of Viafix, Users or a third party, including Intellectual Property Rights and rights regarding privacy.
- Viafix reserves its right to remove a Poll from the Application, for instance if the Provider breaches the warranty laid down in Article 6 and/or the contents of a Poll are at variance with moral standards or decency, to be determined by Viafix.
- To make available one or more Offer(s) to Users within the Application, Provider has to create such Offer(s) in its Account. Provider can create Offers by:
- Uploading a Product Feed in its Account that contains one or more products and/or services that the Provider offers;
- Creating an Advertisement Offering which contains a specific, time limited Offer with specific terms governing that Offer, after which an Offer specific Viafix-code is generated, which can then be distributed by the Provider.
- Any Content uploaded by the Provider shall meet the obligations as set out in the Application and shall be submitted in a format as specified in the Application. In any case, the Content shall contain comprehensible and detailed information regarding the products and services included therein, as well as product name, price, bar code number, delivery time, special conditions and other specifications. It is the sole responsibility of the Provider to submit a Product Feed that can be processed by Viafix and displayed in the Application.
- The Provider acknowledges and accepts that the Content uploaded by the Provider is automatically processed by Viafix and the Provider itself is solely responsible for (the repair of) any errors, inaccuracies and/or inconsistencies in the Content.
- By submitting a Product Feed or Advertisement Offering to the Application, the Provider warrants that it shall meet the following conditions with regard to the Offers listed therein and Transactions concluded on the basis of this Product Feed or Advertisement Offering:
- The delivery costs shall be no more than EUR 7,50 per Transaction;
- If the total value of an Transaction exceeds EUR 20,= no additional (delivery) costs will be charged;
- A Request must be submitted by the User within a maximum of 24 hours after looking up the offer. Each night, unsubmitted Requests are deleted from the app, forcing the User to lookup the current Offer(s) in order to submit a Request. The Request is honored for the price and specifications as offered during any time of the day, even if the price and/or specifications are changed during the time between looking up the Offer and submitting the Request, as long as the Request is submitted within 24 hours after looking up the Offer. This is unless the new price and/or specifications are more beneficial to the User in which case the new price and/or specifications may be used.
- Provider shall be able to deliver a product included in an Offer against the price laid down therein and is only entitled to charge costs in addition to the price as mentioned in an Offer, if such additional costs are optional for the User and the User has specifically agreed to such additional costs;
- All payments of Users with regard to a Transaction can be made after delivery of the products that are part of an Transaction;
- If terms and conditions of Provider apply to the Offer, those terms and conditions are specified in the Offer. If the terms and conditions of the Provider contain provisions that are contrary to any provision of these Provider Terms & Conditions, the provisions of the Provider Terms & Conditions shall prevail.
- The Provider warrants that the (content) of its Product Feed is lawful, does not (possibly) constitute a breach of any third party right and that it actually offers the products and/or services included in the Product Feed.
- If the Provider uploads an Advertisement Offering, a Viafix-code will be generated and made available to Provider. This code can be published by the Provider with any advertisement communicating the Offer. Such advertisement shall contain all relevant information regarding the Offer, sufficiently enabling the User to make a reasoned decision whether or not it shall place a Request with regard to that Offer. After scanning or manually searching the code in the Application, the User will be able to place a Request with Provider. The Provider is entitled to use additional, specific terms and conditions with regard to such Offers, which additional terms and conditions shall be timely and clearly communicated to the User.
- Requests and Transactions
- After submitting Content that contains one or more Offer(s) to the Application, the offered product(s) and/or service(s) shall be listed as Offers within the Application, which Offers are made without obligation. A User can submit a Request to apply to an Offer, whereupon the Provider receives a notification that it has received a Request. After purchasing a sufficient amounts of Credits, the Provider can download the contents of a Request and confirm such Request, after which a Transaction is constituted. The Provider acknowledges and accepts that an Transaction is legally binding and constitutes obligations for the User and the Provider.
- A Request qualifies as an offer to enter into an agreement with the Provider and holds no obligations for Provider and/or User. However, the Provider shall respond to any Request before the end of the day, but ultimately within 24 hours, by either:
- Confirming the Request after using its Credits to download the Request;
- Rejecting the Request after using its Credits to download the Request, giving reasons to the User why such Request is rejected.
- If the Provider fails to respond to a Request within 24 hours, the Request of the User may be removed by Viafix and Viafix shall be entitled to directly contact the User regarding the rejection of its Request. In such cases, Viafix shall be entitled to remove and/or block (parts of) the Provider’s Content from the Application.
- The Provider shall confirm any Request by sending a confirmation e-mail to the User, containing detailed information regarding the performance of a Transaction. After such confirmation, the Transaction is constituted. Provider is not allowed to impose additional conditions to (the performance of) a Transaction, such as the obligation of the User to create an account on Provider’s website.
- Solely in the cases where the information included in a Request is insufficient to perform the Transaction, meaning that vital (delivery) information of the User is missing, the Provider is entitled to contact the User in order to retrieve the missing information, in as far as necessary for the performance of the Transaction.
- If the Provider rejects a Request because it is not able to comply to this Request (for instance, if the specific product is sold out), the Provider is entitled to send the User a different offer (for instance, a slightly different product), which qualifies as an offer in the sense of the Dutch Civil Code. If the User accepts such offer within 24 hours after receiving such offer, a Transaction with regard to the new offer of Provider is constituted.
- Viafix shall never be a Party in any agreement between Provider and User, including any Transaction. The performance of any Transaction is the sole responsibility of the Provider and the User and Viafix shall never be liable for any damages due to such performance. The Provider indemnifies Viafix for all claims of a User or third parties regarding the performance of a Transaction or any other agreement between User and Provider.
- Only if the Provider has reasonable grounds to suspect that a User shall not meet its payment obligations, the Provider is entitled to charge the applicable fees before the performance of a Transaction, in which cases the User shall at all times be duly and timely informed with regard to this exception.
- Reports and Publishers
- In its Account, the Provider can view Reports regarding the number of times the Viafix-codes have been scanned/manually entered into the Application.
- The Provider can agree with a Publisher to give the Publisher access to specific Reports. In order to do so, the Provider shall add a key code, unique for and provided by the Publisher, to its advertisement(s) during the creation of a Viafix-code in its Account, whereupon both the Provider and the Publisher can view the Reports with regard to this Viafix-code. The Publishers key code is shown in the Publisher’s Account.
- By adding the key code of a Publisher to (an) Advertisement Offering(s), the Provider understands and acknowledges that it gives the Publisher the right to view, export and use the Reports regarding the Advertisement Offering(s) of the Provider as mentioned in the previous article and to base (commercial) decisions on such Reports. The Provider is solely responsible for any damages it occurs due to the fact that the Publisher can view the Reports.
- It is at all times the responsibility of the Publisher and Provider to correctly link the Publishers Account to the correct Providers Advertisement Offering(s), after which the Publisher can view the Provider’s Reports regarding the specific Advertisement Offering(s). If Publisher and Provider cannot manage to establish a link between their Accounts, either Party can request Viafix to establish this link, for which services Viafix may charge its applicable fees.
- The Publisher shall maintain confidentiality with regard to the Reports of the Providers it can view in its Account, with due consideration of any agreements Publisher and Provider have concluded regarding the use of the Reports by third parties.
- Provider can use the Application to create Giveaways, in which the competing Users can win one or more Prize(s). The Provider can create the following types of Giveaways through its Account:
- Participating in a Giveaway is free of charge for the User and has a giveaway The receipt by User of the offered product may include a chance-factor. For instance: “Scan and win an iPhone”.
- Participating in a Giveaway requires a Request of User, after which an Transaction is constituted between Provider and User. To this Offer and Transaction the provisions of Article 5 and Article 6 This Transaction shall be free of charge for the User and includes a giveaway aspect. For instance: “order a free trial and have a chance to win an iPhone”.
- When submitting a Giveaway, the Provider shall make clear whether the competing Users have a chance of winning a Prize or that the User shall receive a good as long as the available stock lasts.
- If the Provider creates a Giveaway in which a User has a chance of winning one or more Prize(s), Provider warrants that it shall announce the winner of this/these Prize(s) by sending an e-mail to this User within reasonable time after closing the Giveaway, but in no event after one month.
- Provider warrants that:
- it shall send the Prize(s) to the winning User(s) within two weeks after announcing the winners of said Prize(s);
- the Prize(s) it sends to the Users substantially comply with the description of the Prize(s).
Provider indemnifies Viafix against all claims of Users and third Parties that arise due to the failure of the Provider to meet the aforementioned warranties.
- The Partner shall comply with all relevant laws and regulation that apply to the organization of Giveaways and Prizes, including – but not limited to – the Dutch Gambling Act and the Code of conduct for promotional games.
- Use of the Application
- Each and every use of the Application by the Provider is for the risk and responsibility of the Provider. The Provider is solely responsible and liable for Content and the storage and processing (i.e. modification, addition and deletion) of the Content and personal data of Users.
- Viafix may at any time impose quality standards upon the Provider, including but not limited to standards regarding technical requirements, information level and requirements regarding the products and/or services offered by the Provider. Viafix may at any time amend or supplement these standards.
- The Provider is not permitted to make Content available that:
- is discriminating regarding race, religion, gender, culture or heritage or which is otherwise offensive;
- calls for violence against and/or harassment of others;
- is false and/or misleading, including – but not limited to – the adoption of a false identity and/or making the incorrect suggestion that the Provider is in any way commercially connected with Viafix;
- contains viruses, Trojan horses, worms, bots or other software that can damage, disable or delete the Website or the Application or makes them inaccessible;
- infringes on the rights of Viafix and/or third parties, including – but not limited to – Intellectual Property Rights and rights that relate to the protection of privacy;
- harms the interests and reputation of Viafix;
- reproduces, publishes or sells information which is obtained through the Application, other than the Content the Provider has provided itself;
- engages third parties to perform any of the abovementioned acts;
- violates minimum quality standards.
- Viafix reserves the right to modify, refuse or delete Content,, including but not limited to the event in which the Content (allegedly) violates any third party right or legislation or does not meet Viafix’ (quality) standards.
- Viafix is at all times entitled to restrict the use of or terminate the Provider’s Account if there are grounds to do so according to Viafix, without becoming liable to pay any compensation to the Provider. Viafix shall, in particular, invoke this right if Viafix is of the opinion that the quality of Provider’s service towards Users is substandard.
- If a Provider is of the opinion that certain Content offered by another Provider or otherwise made available on the Application infringes its rights and/or the rights of a third party, the Provider shall notify Viafix thereof immediately, in accordance with Article 16.
- Intellectual Property Rights
- The Intellectual Property Rights with regard to the Application, including the Intellectual Property Rights with respect to the Website and the Reports are held by Viafix or its licensor(s).
- Under the conditions set out in the Agreement and these Provider Terms and Conditions, Viafix will grant the Provider a limited, personal, revocable, non-exclusive, non-sublicensable and non-transferable right to access and use the Application and the functionality available thereon, including the Website and the Account, insofar as is necessary for the use of the Application.
- All Intellectual Property Rights in relation to the Content will remain with the Provider who made the Content available through the Application. The Provider acknowledges and accepts that by making the Content available, it automatically and free of charge grants Viafix an unlimited, worldwide, non-exclusive, sublicensable and transferable right to reproduce the uploaded Content and make the Content available in the Application for the provision of the Application, including the right to use (parts of) the Content, Provider’s name and/or logo for promotional purposes in connection with the Application.
- Nothing in these Provider Terms and Conditions is intended to transfer any Intellectual Property Rights to the Provider. The Provider shall refrain from any act that infringes the Intellectual Property Rights of Viafix, including – but not limited to – the registration of domain names, trademarks or Google Adwords that are identical or similar to any object to which Viafix holds Intellectual Property Rights, as well as the reproduction, modification, reverse engineering or publishing of the Application, including the Website, for other purposes than those listed in the Agreement.
- The Provider is not permitted to remove, make illegible, hide or modify notifications or statements with regard to Intellectual Property Rights.
- Personal Data
- By registration of its Account and by using the Application, the Provider may provide personal data to Viafix. Viafix guarantees that it will comply with all legal obligations regarding the processing of personal data, including but not limited to the obligations following from the European Directive 95/46/EC and the Dutch Data Protection Act.
- In as far as Viafix receives personal data of Users with regard to a Request, such data will in any event be retained for one week after receipt. After one week, Viafix will remove any personal data of Users.
- During the use of the Application, in particular when retrieving and processing Requests and during the performance of Transactions, the Provider may process personal data of Users, which falls under the full responsibility of the Provider. The Provider warrants that it shall, during the processing of personal data, at all times comply with laws and regulations regarding the processing of personal data (in particular the European Directive 95/46/EC and the Dutch Data Protection Act). Provider indemnifies Viafix against all claims of Users and/or third parties with regard to any claims related to the processing of personal data by the Provider.
- The use of the Application by Provider is free of charge, as is the uploading of Content. However, the Provider has to acquire Credits in order to be able to retrieve Requests, which can be done on the Website.
- The amount of Credits needed to retrieve a Request is, among other things, based on the net value of the Request and shall be shown in the Account. If the Provider fails to acquire the amount of Credits needed to retrieve a Request within 24 hours after the Request was submitted, this Request may be automatically rejected.
- Payment of the Credits by the Provider shall at all times be done up front by means of the payment solutions provided on the Website. Since these payment solutions are provided by third party service providers, Viafix does not warrant the availability of these payment solutions, nor does Viafix warrant the proper functioning of such payment solutions. Provider shall comply with any additional terms & conditions of this payment service provider and Viafix is not liable for any damages incurred by Provider due to the (non-functioning of the) payment solutions integrated on the Website, nor for any missed Transactions due to this reason.
- The current rates of the Credits are shown on the Website and can be amended from time to time. The Provider cannot derive any rights from previous rates of the Credits. Credits are non-refundable.
- Purchased Credits are valid for a term of 1 year after purchase thereof. If Provider spends Credits in order to retrieve a Request, the oldest valid Credits of Provider shall be used for such transaction.
- The relevant documents and information from Viafix’s administration or systems shall be conclusive evidence of the Credits payable by Provider to retrieve a Request, without prejudice to Providers right to submit evidence to the contrary.
- Viafix has no influence on, is not involved in and is not liable for the payment of Transactions by a User to Provider.
- Viafix is allowed to set off any of its payment obligations to the Provider against a payment obligation of the Provider, including but not limited to the obligation of the Provider to pay damages under these Provider Terms and Conditions.
- Warranties and indemnification
- Viafix shall perform the Application to the best of its ability and on a best efforts basis. Provider accepts that the Application contains only the functionalities that it finds at the moment of use (“as is” basis). Except as expressly provided in these Provider Terms and Conditions, Viafix makes no warranties of any kind, whether express, implied, statutory or otherwise, including but not limited to any warranties of merchantability or fitness for a particular purpose, quality, safety, integrity or accuracy of the Application.
- Viafix makes no warranty whatsoever whether any Transaction between the Provider and a User shall be constituted at any moment.
- Viafix does not guarantee that the Content will be published and made visible correctly, fully or constantly in the Application or the Account. Furthermore, Viafix does not guarantee that the Viafix-codes and/or Product codes are (at all times) fit for use and constantly available.
- The Provider is fully responsible and liable for the conclusion and performance of Transactions, Giveaways and Polls, including any payment obligation of User related to any Transaction. Provider indemnifies Viafix from all claims of Users that relate to any Giveaway or Poll, as well as the conclusion and performance of a Transaction.
- The Provider is liable for and indemnifies Viafix completely and unconditionally against any damages and costs which Viafix suffers or makes as a result of (i) an attributable breach by the Provider of the Agreement or any other agreement between the Provider and Viafix, (ii) an (alleged) infringement of Intellectual Property Rights or any other rights by the Provider, including the rights of Users with respect to privacy, (iii) any use the Provider makes of the Application or (iv) an unlawful act. All costs and damages that in any way relate to such a claim will be reimbursed by the Provider.
- The Provider guarantees that:
- it has the full legal power and authority to enter into the Agreement and use the Application under the conditions as set out in these Provider Terms and Conditions;
- it has the full legal power and authority make the Content available through the Application and provide the license as mentioned in article 3;
- it is the sole owner of (Intellectual Property Rights in) the Content and/or that it has obtained valid licenses from third parties to make the Content available through the Application and provide the license as mentioned in article 3;
- the Content is correct, complete, unencumbered and not limited or restricted by any third parties’ rights, including Intellectual Property Rights;
- the Content is not infringing upon any third parties’ rights, including Intellectual Property Rights, and that the use of the Content is not in any other way unlawful towards third parties;
- the Content gives a correct representation of the offered products or services and are used and/or presented in accordance with applicable law and legislation;
- all information, data and any Content provided is correct, complete and up-to-date; and
- it will not make or enter into any agreement with any third party which would cause a breach or a default under the Agreement, including these Provider Terms and Conditions.
- The liability of Viafix due to an attributable breach of its obligations and/or on account of an unlawful act will be limited to compensation for direct damage suffered by the Provider to an amount not exceeding the value of the Credits spent by the Provider in the 3 (three) months prior to the moment on which the damage was incurred. However, under no circumstances will the total liability of Viafix for direct damage, of whatever nature, exceed an amount of EUR 1.000.
- Direct damage is understood to mean exclusively:
- reasonable costs which the Provider would need to incur to make the performance of Viafix correspond to the Agreement; such damage will however not be compensated if the Agreement is terminated by or at the suit of the Provider;
- reasonable costs incurred in assessing the cause and the extent of the damage, in so far as the assessment is related to direct damage as referred to in these Provider Terms and Conditions;
- reasonable costs incurred in preventing or limiting damage, in so far as the Provider proves that such costs led to a limitation of direct damage as referred to in these Provider Terms and Conditions.
- Any liability of Viafix for damage other than direct damage (“indirect damages”), including – but not limited to – consequential damages, loss and/or damage of data, loss of profits and lost sales, is excluded.
- Viafix is in no way whatsoever liable, or liable to pay compensation to the Provider for any damage arising out of or resulting from (parts of) the Application being (temporarily) unavailable or for failures or outages of the Application.
- The limitations and exclusions of liability mentioned in the preceding paragraphs of this article will lapse if and in so far as the damage is the result of intentional or willful recklessness on the part of Viafix or its managers (“own actions”).
- The liability of Viafix due to attributable breach of an Agreement will in all instances arise only if Provider immediately gives proper written notice of default, whereby a reasonable period within which the attributable breach may be remedied is stipulated, and Viafix after this period still fails in the performance of its obligations, except in the case of lasting attributable failure. The notice of default must contain a description of the breach that is as complete and detailed as possible, to enable Viafix to respond adequately.
- The existence of any right to compensation is always conditional on the Provider reporting the damage to Viafix in writing a soon as possible after it has come about. Any claim for compensation vis-à-vis Viafix will be cancelled simply by the expiry of twelve (12) months after the damage first arose.
- Force majeure
- Neither party is liable to perform any obligation, including any warranty obligation agreed between the Parties but not including any payment obligations of Provider, if prevented there from by force majeure.
- Force majeure is taken to mean inter alia: illness of employees and/or absence of key employees needed for Viafix, power failures, strikes, riots, government measures, fire, natural disasters, floods, failure of suppliers of Viafix, shortcomings by third parties which were engaged by Viafix, disruption of the internet connection, hardware failures and failures in (telecommunication) networks.
- In the event of force majeure Viafix will be entitled to suspend its obligations under the terms of the Agreement, or to terminate the Agreement in full or in part, without incurring any liability for damages towards Provider.
- Notification of unlawful Content
- Viafix is not liable for any damages in connection with the (illegal) use of the Application by Provider or any third party. Viafix will only, under the conditions as set out in this article, be obliged to remove or block access to Content that is manifestly unlawful or to stop manifestly unlawful behavior after receiving a notification that is sufficiently precise and adequately substantiated.
- Viafix has established a procedure, by which any alleged illegal Content available through the Application can be reported to Viafix. This can be done via a notification to firstname.lastname@example.org.
- Viafix reserves the right to not grant a request to remove or block access to the Content or to stop an activity in case it has reasonable grounds to doubt the accuracy of the notification or in case a balancing of interest requires this. In such a situation Viafix can require a court order from a competent court in The Netherlands, to demonstrate that the material or the activity is manifestly unlawful.
- Viafix will not be a party in a dispute between the person making the report and any third party arising out of or in connection with a notification.
- If the Provider notifies Viafix with respect to (alleged) unlawful Content, the Provider shall indemnify Viafix from any claim of third parties in relation to the blocking or removal of such Content or the stopping of activities. The indemnification includes all damages and costs Viafix suffers, could suffer or which Viafix incur in relation to such a claim, including but not limited to the compensation of legal assistance.
- Viafix respects and protects the privacy of those who provide notifications. All personal data that it receives as part of a notification will always be processed in accordance with the Dutch Data Protection Act and will only be used to process the notification.
- Duration and termination
- The Agreement between the Provider and Viafix shall commence when the Provider activates its Account and submits its signature to Viafix. The Agreement will be in force until it is terminated in accordance with this article. Provider may, at any time terminate the Agreement, by removing its Account.
- In the event of termination of the Agreement, there will be no reversal of that which Viafix has already delivered and/or carried out. After termination of the Agreement, all the available Credits, Viafix-codes and Product codes of Provider shall be declared invalid and the Content shall be removed.
- Viafix will have the right to immediately terminate the Agreement, terminate the Account and remove the Content if Viafix receives notice or has knowledge that the Content infringes upon or violates the Intellectual Property Rights and/or any other rights of a third party, or if a Poll, Giveaway or Offer created and/or published by Provider violate any condition imposed by Viafix in the Agreement, these Provider Terms and Conditions, on the Website or in any other manner. In such cases, all the available Credits of Provider shall be declared invalid without any right of reimbursement.
- In the event the Agreement is terminated, for whatever reason, the Provider shall cease and desist from any further use of the Application. Viafix remains entitled to use the Content that the Provider has made available through the Application. Viafix will however, upon the first request of the Provider, remove or (where applicable) anonymize the Content.
- All clauses of these Provider Terms and Conditions that are to their nature intended to survive termination, in particular Article 10, Article 11, Article 13, Article 14, and Article 18, shall survive such termination.
- The Provider is not entitled to transfer rights and/or obligations arising from the Agreement to a third party.
- Viafix is entitled to transfer the Agreements and/or (part of) its rights and obligations thereunder to a third party. Viafix is furthermore entitled to cause the Agreement to be carried out in full or in part by third parties or at any rate involve third parties in the performance of the Agreement.
- The Agreement and the use of the Application is subject to Dutch law. The applicability of the Vienna Sales Convention 1980 is expressly excluded.
- Any and all disputes arising from or related to the Application or the Agreement will be brought before the competent court in The Hague.