Flowersonline BV
Fonteinkruid 44
1724XR Oudkarspel
The Netherlands
General Terms and Conditions of software rental to be used for the trade in Floricultural Products and Products that are used in the Floricultural business.
Drawn up by Flowersonline BV and deposited at the Alkmaar Chamber of Commerce and Industry under no. 37112099
1 Scope
These General Terms and Conditions apply to all offers, services and other operations of all kinds. Installing the Flowersonline software and entering into relations with Flowersonline BV implies the Client's acceptance of these General Terms and Conditions and the renunciation of his own General Terms and Conditions, where these may exist, and which in no case are enforceable against Flowersonline BV. In the event that the Client's General Terms and Conditions should contain a clause similar to the present, only the Flowersonline BV General Terms and Conditions shall apply. The Flowersonline BV General Terms and Conditions apply to all relations between Flowersonline BV and the Client until the time of notification of their amendment. All services shall be rescinded as of right in the event the Client fails to comply with any of the conditions of operation stipulated in these General Terms and Conditions. The fact that a Client has not read and accepted the Flowersonline BV General Terms and Conditions in his mother language cannot result in their unenforceability with regard to the said Client.
2 Definitions
Save where the context does not allow, the following definitions apply in these General Terms and Conditions:
• Flowersonline BV: a Dutch undertaking incorporated as a public limited company and operating at Fonteinkruid 44, 1724XR Oudkarspel – the Netherlands
• The Sales Manager: The Sales Manager is the natural or legal person authorized by Flowersonline BV to sell rental contracts for Flowersonline software.
• Client: The Client is the natural or legal person who acquires a login name for the Flowersonline software and who clicks on "I ACCEPT" after having read and accepted all the Flowersonline BV General Terms and Conditions during the subscription procedure
• Web-based Software: The Flowersonline software, whose operating license is sold online by Flowersonline BV or by an approved Sales Manager.
3 Subject
These General Terms and Conditions govern the sale and use of the rental contracts of the web-based Software by Flowersonline BV to the Client. In order to obtain an operating licence, the Client must accept these General Terms and Conditions. Client accepts that the sole acceptance is done via entering the web based software and via clicking a ‘v’ in the checkbox.
4 Ownership
The web-based Software is and remains the exclusive property of Flowersonline BV and is protected by intellectual property laws worldwide and throughout the duration of the protection period granted for software and creations protected by copyright.
5 Utilization and fees of the License 5.1 The Client is authorized to use the web-based Software. The number of log-in names per contract is unlimited. 5.2 The monthly rent for a Client being a vendor, is 149 euro ex taxes per month per contract. If a vendor has 4 or more clients, he pays 249 euro ex taxes per month per contract. 5.3 If a vendor has more than one location, he pays a higher monthly fee per contract. Between 2-5 locations the extra fee per location per month is 50 euro ex taxes. Above 5 locations the vendor pays 25 euro ex taxes per location per month extra. 5.4 The monthly rent for a Client being a buyer is 149 euro ex taxes per month per contract.
5.5 If a buyer has more than one location, he pays a higher monthly fee per contract. Between 2-5 locations the extra fee per location per month is 50 euro ex taxes. Above 5 locations the buyer pays 25 euro ex taxes per location per month extra. 5.5 Flowersonline is entitled to individualize fees by reducing or rising them and fees for clients on the American continent the above prices are in US$. 5.6 A client is considered a private person or entity that buys or sells or a brand name that is used to buy or sell. So if three vendors sell together with one brand name they pay one rental fee plus the extra location fee. If one vendor uses two brand names to sell he pays two rental fees. If situations occur that are not previewed, Flowersonline has the right to decide how many rental contracts will be needed. 5.7 A client is considered a private person or entity that buys or sells or a brand name that is used to buy or sell. So if three buyer buy together with one brand name they pay one rental fee plus the extra location fee. If one buyer uses two brand names to buy he pays two rental fees. If situations occur that are not previewed, Flowersonline has the right to decide how many rental contracts will be needed. 5.8 Violation by the Client of any of these General Terms and Conditions, and in particular the present article, shall lead to immediate termination of the web-based Software operating license, without notice and without prejudice to any damage compensation that might be demanded by Flowersonline BV.
6 Disputes
In the event of a dispute between the Client and Flowersonline BV arising out of these conditions, the parties shall endeavor to reach an amicable settlement through negotiations conducted by high-level representatives of both sides. In the absence of an amicable settlement, the dispute will be solved by arbitration. If parties are not able to resolve the situation within a period of 3 months, starting from the date of the registered letter in which breach of this agreement was announced by Client to Flowersonline or reverse, parties agree upon resolving this situation with arbiters according to the following arrangement: each party nominates an arbiter within 14 working days and both arbiters nominate a third arbiter within 14 working days. The 3 arbiters judge the situation within a period of 60 working days and make a decision. Parties agree upon acceptance of the decision and upon the fact that it is not possible to appeal. Each party hereby consents to the jurisdiction and venue of the arbiters for this purpose only. The prevailing party in such action shall be entitled to recover from the other party the costs of his arbiter, all reasonable fees, costs and expenses relating to such action, the amount to be decided by the arbiters. The losing party will pay the 3rd arbiter and eventual extra costs to be decided by the arbiters.
7 Intellectual property rights 7.1 The Client acknowledges that the content provided by Flowersonline BV on the Flowersonline BV site, the content of the web-based Software, the presentation of the Client Service (graphic arts, structure, mapping, etc.), titles, photos, videos, animations, web-based Software, music, sounds, banners or advertising and the logo (hereinafter collectively referred to as "the original material") of Flowersonline BV or of advertisers are the property of the latter and are protected by industrial and intellectual property rights. Consequently, the Client may not adapt, digitize or modify, personally or by a third party, the original material, reproduce or have reproduced by a third party the original material or working methods on any type of medium (notably books, newspapers, brochures, advertising leaflets, post cards, CD-ROM or any other electronic medium) in any format (ordinary, luxury, paperback or hardback, of any size, in limited edition or otherwise, diskette, cassette, etc. ) and communicate or make public, personally or by a third party, the original material, including by audiovisual means or telematics. 7.2 Flowersonline will not submit contact information of ‘suppliers of buyers’ to other buyers unless the suppliers decides to add his information on the public list. 7.3 Flowersonline will not submit contact information of ‘clients from suppliers‘to other suppliers. This contact information is considered as intellectual property right of buyers and/or suppliers. 7.4 The Client authorizes Flowersonline to list his company name and country on the website and on promotional items and to enhance its membership both on the vendors and on the buyer side.
8 Liability 8.1 Whatever the circumstances, the liability of Flowersonline BV may only be invoked in the event of serious negligence or fraudulent intent and, if this situation occurs, the liability will be limited to the value of a year contract. 8.2 No compensation shall be paid for any indirect injury, namely financial injury (loss of earnings, increase of costs, disruption of schedule, defamation, etc.). 8.3 Flowersonline BV shall not be liable in the event the web-based Software cannot be downloaded in whole or in part for reasons independent of its intentions or beyond its control, among others but not limited to fire, theft, flood, strikes or other social problems, accidental occurrences, disconnection from the telecommunications network or interruption of service by any other parties who intervene in the transmission process or supply this network and/or its terminals or impossibility or technical defects of the equipment of others or of a service provider used for the Service. 8.4 The Client bears sole liability for the content of the messages, offers and orders he transmits using the web-based Software and for pecuniary losses, damage or payments following from the business done with or the use made of the web-based Software. 8.5 Flowersonline BV cannot guarantee that: (I) The web-based Software will meet the Client's particular expectations or demands; (II) the web-based Software will function without interruption or free of error; (III) Flowersonline BV will be able to correct any errors that may exist in the web-based Software. 8.6 Flowersonline BV shall not be liable for the use or destination of the web-based Software by the Client, in particular but not limited to, all injurious consequences that might result from the provision of a service or an acquisition or sale or any other similar transaction between the Client and a third party that fails for any reason save serious negligence or fraudulent intent for which Flowersonline BV may be called upon to answer. 8.7 By express agreement, the Client releases Flowersonline BV of all absolute obligation with respect to the performances and results of the web-based Software. 8.8 In no case may Flowersonline BV be held liable for any direct, indirect or accidental injury resulting from faulty use of the web-based Software, ignorance of the web-based Software and/or its use, or a connection of any kind to another software program or hardware. 8.9 Flowersonline BV informs the Client insofar as necessary that the Flowersonline BV site may contain links or hyperlinks with other sites ("related sites"). The Client acknowledges that when he clicks on a link or a hyperlink to visit or consult the linked site or sends an outgoing message from the system, a frame may appear containing the Flowersonline BV logo, advertisements and/or other information. The Client agrees that Flowersonline BV shall not be liable for the content that appears on a linked site or for any product or service optimized by the linked site as an operator independent of Flowersonline manages the linked site. 8.10 Any proceedings implicating the liability of Flowersonline BV must be introduced no later than 3 months after the date of the alleged fraudulent or negligent act. After this period, Flowersonline BV is exempted from all liability and may not be obliged to pay damage compensation.
9 Client behavior - Use of the Service
The Client agrees: 1) not to use the web-based Software for illegal purposes; 2) to abide by legislation (I) relating to protection of the general interest, in particular but not limited to, respect for law and order and morals, IP rights, protection of health, public security, the protection of minors, protection against antisocial behavior, advertising for hazardous products, non-discrimination on grounds of sex, race or nationality, or (II) relating to calumny or defamation; 3) to subscribe in the public database if he wants his contact information available for other participants and permits Flowersonline to publish this database.
10 Payment of the web-based Software 10.1 The Client, having accepted the present General Terms and Conditions, will pay in advance per a 3-months period through the website of Flowersonline. Client will receive an email alert of the ultimate payment date. If the payment has not been done in time, Flowersonline is allowed to disconnect Client from the system without Client being able to hold Flowersonline responsible for any damage following out of this action. 10.2 If client informs Flowersonline within 31 days after the first day of subscription that he is not satisfied with the Web-based software, he may announce that he wants to stop the contract and no the rental fee will be charged. This announcement must be done through email.
11 Notice or notification Notices or notifications to a party shall be sent solely by electronic mail.
12 Autonomy
In the event any of the present conditions is declared null and void or inapplicable, the other conditions herein remain fully in force, and this condition shall apply to the full extent allowed by law.
13 Renunciation
No party shall be assumed to have renounced the right to exercise any of the present conditions unless having expressly done so in writing (electronically or otherwise).
14 Entirety
These Flowersonline BV General Terms and Conditions constitute the entire agreement between the parties relating to the provision of the web-based Software operating license.
15 Language
Parties agree upon using English as the language for their relationship and deny the right to complain about eventual misunderstandings caused by the use of it.
16 Law applicable and jurisdiction
These General Terms and Conditions are governed interpreted and enforced in accordance with Dutch law. The courts of The Hague, the Netherlands will have sole jurisdiction for any dispute that may result in the interpretation or application of this contract.