General Terms and Conditions
GENERAL TERMS AND CONDITIONS SKIDEO B.V.
(version January 2023)
1. Definitions
a. “General Terms and Conditions”: this set of general terms and conditions of SKIDEO.
b. “Client”: the client of SKIDEO in the Agreement.
c. “Agreement”: the agreement concluded between SKIDEO and the Client, which, among other things, pertains to SKIDEO providing the Software to the Client.
d. “SKIDEO”: SKIDEO B.V., incorporated in Arnhem and registered in the trade register of the Chamber of Commerce under number 82866023.
e. “Software”: the software application “Skideo,” developed by SKIDEO (available via a web portal), which allows end-users to create (personalized) images/videos.
2. Applicable Terms
a. These General Terms and Conditions apply to the Agreement and to all requests for quotations, offers, orders, and agreements relating to the provision of services (including the delivery of the Software) by SKIDEO for the benefit of the Client.
b. Deviations from and additions to these General Terms and Conditions apply only if expressly and in writing accepted by SKIDEO. This is an evidentiary agreement.
c. The applicability of any general terms and conditions of the Client is expressly rejected.
d. If any provision of these General Terms and Conditions is nullified or invalidated, the remaining provisions shall remain in full force. In such a case, the parties will consult to agree on new legally valid provisions that will replace the invalid or nullified provisions, as much as possible reflecting the intent and purpose of the original provisions.
e. In the event of any conflict between a provision in the Agreement and a provision in these General Terms and Conditions, the provision in the Agreement shall prevail.
3. Price, Invoicing, and Payment
a. The agreed price is, unless otherwise agreed in writing, exclusive of VAT.
b. Payment by the Client shall take place after receipt of an invoice issued by SKIDEO and within thirty
(30) days. The Client is not entitled to suspend or set off any payments due.
c. If the Client fails to pay the amounts due, or fails to do so on time, the Client is in default without further notice and shall owe statutory commercial interest on the outstanding amount. If the Client remains negligent even after being reminded by SKIDEO, and SKIDEO is forced to take legal action to collect the debt, the Client is also liable for all judicial and extrajudicial costs in addition to the owed amount.
4. The Software and Delivery
a. The Client accepts the Software “as is.”
b. SKIDEO is entitled to take technical measures to protect the Software from unlawful use and against use in a manner or for a purpose not agreed between the parties. The Client shall never remove or circumvent such technical measures or have them removed or circumvented.
c. SKIDEO shall make reasonable efforts to keep the Software available for the Client at all times. If preventive, corrective, or adaptive maintenance is necessary, the Software may be temporarily unavailable. SKIDEO shall limit this period to the minimum necessary and, if possible, carry out such maintenance outside regular office hours.
d. SKIDEO reserves the right to provide new or modified versions of the Software to the Client due to ongoing development. SKIDEO is not obliged to maintain, modify, or add specific functionalities or features of the Software solely for the Client.
5. Credits and “opens”
a. The Client may purchase (a certain number of) credits per month. These are referred to as “opens.”
b. Each time a visual (image, GIF, or video) generated through the Software is requested for the Client (an “open”), one credit is deducted from the total number of credits of the Client. A maximum of 10,000 credits per unique visual are counted per month, even if there are more than 10,000 “opens” for the same visual during the month.
c. If the Client no longer has any credits, SKIDEO will not deliver full-fledged visuals.
d. A fair use policy applies to the Client’s use of credits, meaning the Client must reasonably distribute the use of credits over the (days of the) month.
6. Intellectual Property Rights
a. None of the intellectual property rights relating to the Software that already exist or arise during the execution of the Agreement are transferred to the Client, and nothing in the Agreement or these General Terms and Conditions implies a full or partial transfer of such rights to the Client.
b. SKIDEO guarantees that the Software and the Client’s permitted use thereof do not infringe on third-party intellectual property rights.
c. In the event of an infringement or alleged infringement as referred to in paragraph b, or if SKIDEO believes there is a reasonable chance that such an infringement may occur, SKIDEO is entitled to replace or modify the Software at its own expense to eliminate the infringement with as little detriment as possible to the functional properties of the Software.
d. SKIDEO indemnifies the Client for the consequences of an infringement as referred to in paragraph b, provided that the Client promptly notifies SKIDEO of any alleged infringement and, if SKIDEO so requests, leaves the defense against such a claim entirely to SKIDEO, providing all requested cooperation and information.
7. Confidentiality
a. The parties are obliged to keep confidential all information they receive from each other, provided it is information they know or should reasonably know is confidential. This obligation does not apply if the disclosure of such information is necessary for the proper performance of the Agreement or required by a court order or legal provision.
b. Information is considered confidential if a party designates it as such. The Client acknowledges that the Software is always confidential in nature and contains SKIDEO’s trade secrets.
c. The parties shall ensure that their employees comply with the confidentiality obligation described in paragraph a.
d. This confidentiality obligation remains in force both during and after the termination of the Agreement.
8. Liability
a. SKIDEO’s liability for an attributable failure in the performance of the Agreement or on any other legal basis is limited to compensation for direct damage up to a maximum of the total amount the Client owes to SKIDEO under the Agreement for the twelve (12) months preceding the incident.
b. SKIDEO is not liable for any indirect damage suffered by the Client, including but not limited to lost profits, consequential damages, reduced goodwill, missed savings, damage resulting from claims by the Client’s customers, and damage due to business interruption.
c. The exclusion or limitation of SKIDEO’s liability as described in paragraphs a and b does not apply in cases of intent or deliberate recklessness that caused the Client’s damage.
d. Unless performance by SKIDEO is permanently impossible, SKIDEO’s liability as described in paragraph a arises only after SKIDEO is in default. SKIDEO is in default only after the Client has sent a written notice of default as detailed as possible, allowing SKIDEO a reasonable period to remedy the breach, and SKIDEO has failed to do so within that period.
e. SKIDEO’s liability for damage suffered by the Client is excluded if the Client does not notify SKIDEO of the damage in writing as soon as possible after it occurs. Any claim by the Client against SKIDEO for compensation expires six (6) months after the claim arises unless the Client has instituted legal proceedings for compensation before that period expires.
9. Termination and Cancellation
a. The parties may terminate the Agreement due to an attributable breach of the Agreement. This right can only be exercised if the breach pertains to a material obligation and if one party has given the other party a written notice of default (as detailed as possible), allowing a reasonable period for compliance, and the other party fails to remedy the breach within that period. The Client’s payment obligations qualify as material obligations.
b. Upon termination of the Agreement, any performances already carried out and the related payment obligations will not be subject to undoing.
c. SKIDEO has the right to terminate the Agreement with a notice period of three (3) months.
d. The parties have the right to terminate the Agreement with immediate effect by means of a written notice to the other party if one of the following circumstances arises:
a) The other party is declared bankrupt.
b) The other party is granted (provisional) suspension of payments.
c) The other party’s business is terminated or wholly or partially transferred to a third party.
10. Applicable Law and Disputes
a. These General Terms and Conditions and the Agreement are governed by Dutch law.
b. All disputes between SKIDEO and the Client will be settled exclusively by the competent court in the place where SKIDEO has its registered office.
