TERMS & CONDITIONS
1. Definitions
In these general terms and conditions, the following definitions apply:
a. Services: the services referred to in these general terms and conditions;
b. Live By Trade BV: Limited Company, registered with the Dutch Chamber of Commerce (reg. nr. 70286639), also referred to as Live By Trade;
c. Client: the party or parties (natural or legal person) to whom Live By Trade has made a quotation or who enters into an agreement with Live By Trade to which these general terms and conditions apply;
d. Agreement(s): the contractual relationship(s) between Live By Trade and the Client;
e. Parties: Live By Trade and Client jointly.
2. Applicability
a. These terms and conditions apply to all offers, quotations and Agreements of Live By Trade, unless the Parties agree otherwise in writing prior to the conclusion of the Agreement.
b. The applicability of any terms and conditions by the Client is expressly rejected. In the event that the Client has declared its general terms and conditions generally applicable to its offers, quotations and Agreements, the general terms and conditions of Live By Trade BV will prevail.
c. If any provision of these terms and conditions is void or voided, the other provisions will remain fully applicable and the void or voided provision of these general terms and conditions will be replaced by a new, legally permissible provision in which as much as possible the purpose and intent of the void or voided provision is observed.
3. Quotation and Agreement
a. A quotation sent by Live By Trade is valid for up to fourteen (14) days from the date of the quotation.
b. Live By Trade is not bound by an acceptance by the Client that deviates from the offer included in the quotation. The Agreement will then not be concluded in accordance with this deviating acceptance, unless Live By Trade indicates otherwise.
c. The Agreement between Live By Trade and the Client is concluded at the time of:
i. sending the order confirmation by Live By Trade; or
ii. the written confirmation of a quotation by the Client; or
iii. the actual commencement of work and/or Services by Live By Trade.
d. The Agreement with regard to the delivery of Services is valid for the duration of one (1) year and is automatically extended for one (1) year at the end of the term.
4. Performance of the Agreement
a. The Services will be performed by Live By Trade for the benefit of the Client, as further specified in the quotation and/or the Agreement.
b. All Services provided by Live By Trade are performed to the best of its knowledge and ability, in accordance with the requirements of good workmanship. Agreements can only be defined as a best efforts obligation and can never contain a result obligation.
c. The Client is obliged to immediately inform Live By Trade about facts and circumstances that have changed and that may be important for the execution of the Agreement.
d. The Client is also obliged to make available to Live By Trade all documents and data, which Live By Trade in its opinion reasonably needs for the correct execution of the assignment, in a timely manner in the manner desired by Live By Trade. Any costs to obtain documents and data are for the account of the Client.
e. If the Client has provided incomplete and/or incorrect documents and data to Live By Trade, Live By Trade has the right to suspend the execution of the assignment until such time as the Client provides Live By Trade with complete and/or correct documents and data, or to dissolve the Agreement and to hold the Client liable for any resulting damage.
f. An agreed term for the provision of Services by Live By Trade is never regarded as a strict deadline, but only as a guideline, unless expressly agreed otherwise in writing. An agreed term starts to run when the Client has provided Live By Trade with all documents and data requested by Live By Trade.
5. Fees
a. The fees are laid down in the quotation and/or the Agreement.
b. If the Parties have agreed a fixed price in advance for the provision of certain Services and the provision of those Services forces extra work/ performance that cannot reasonably be deemed to fall under that fixed price, Live By Trade will inform in advance about the financial consequences of this. Live By Trade is entitled to suspend its performance until written agreement has been reached with the Client about the compensation for the additional work. Live By Trade is entitled to charge additional work on the next invoice.
c. If an assignment is cancelled by the Client, the Client is obliged to pay in full for the part of the assignment already performed. Live By Trade makes the work already produced available to the Client if desired. If Live By Trade has reserved time for the execution of the cancelled assignment, Live By Trade can charge the Client fifty (50) percent of the fee for the part of the assignment that has not been performed.
d. All prices or rates applied by Live By Trade, as well as the prices or rates stated in the offers, quotations, price lists, etc., are exclusive of twenty-one (21) percent VAT and other government levies.
e. Agreed prices or rates apply, unless expressly agreed otherwise in writing, for the duration of the calendar year in which they were agreed and can be adjusted annually.
f. Live By Trade BV is entitled to invoice periodically.
6. Payment
a. Payment of invoices must be made within fourteen (14) days of the invoice date, in euros, by deposit or transfer to a bank account designated by Live By Trade BV, without settlement or discount.
b. The payment term of fourteen (14) days can be deviated from by Agreement if a package of Services is offered. In such a case, the invoice amount will be settled monthly by direct debit.
c. If the Client fails to meet its payment obligations within the payment term, or if the direct debit is reversed, the Client will be in default by operation of law and Live By Trade BV will be entitled, without further notice of default being required, to a default interest of 2% per month commencing on the due date of the relevant invoice, or on the reversal date, without prejudice to the other statutory rights accruing to Live By Trade BV. Live By Trade BV is furthermore entitled to charge the Client for all extrajudicial costs that Live By Trade has to incur in order to collect the amounts owed by the Client.
d. Insofar as the Client disputes Live By Trade’s indebtedness of (part of) the invoice amount, the Client must inform Live By Trade of this in writing within ten (10) days of the invoice date, failing which the invoice will be regarded as undisputed. Objections to the amount of the invoices do not suspend the payment obligations.
e. Payments made by the Client always serve in the first place to settle all interest and costs owed, in the second place to settle due and payable invoices that have been outstanding the longest.
f. If, in the opinion of Live By Trade BV, the financial position or payment behaviour of the Client gives cause to do so, Live By Trade BV is entitled to require the Client to immediately provide (additional) security in a form to be determined by Live By Trade and/or an advance payment. If the Client fails to provide the required security, Live By Trade is entitled, without prejudice to other rights, to immediately suspend the further execution of the Agreement and all that which the Client owes Live By Trade for whatever reason is immediately due and payable.
g. In the event of (application for) suspension of payments, attachment, (application for) bankruptcy or liquidation at the expense of the Client, the claims of Live By Trade BV and the obligations of the Client towards Live By Trade BV are immediately due and payable.
7. Liability and Indemnification
a. Live By Trade BV has taken out liability insurance. In the event of damage, the relevant claim will be reported to its insurer and if there is cover, the liability for damage will be limited to the amount actually paid out by the insurer, plus the deductible. If the applicable liability insurance of Live By Trade BV does not pay out for whatever reason, Live By Trade BV’s liability is limited to the fee charged for the relevant assignment with a maximum of €30,000 per year.
b. Live By Trade BV is only liable towards the Client for direct damage. Direct damage within the meaning of these general terms and conditions is understood to mean:
i. the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to the damage within the meaning of these general terms and conditions;
ii. any reasonable costs incurred to have the defective performance of Live By Trade BV comply with the Agreement, insofar as these can be attributed to Live By Trade BV;
iii. the reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of direct damage as referred to in these terms and conditions.
c. Live By Trade BV’s liability for indirect damage, including consequential damage, lost profit, lost savings and damage due to business interruption is excluded at all times.
d. Live By Trade BV is in no way liable for the consequences of inaccuracy of the data provided by or on behalf of the Client. Live By Trade BV is also not liable for inaccuracies and incompleteness that arise when passing on or sending data, communication problems, problems reaching persons specified by the Client, (the consequences of) computer, telephone and fax failures, malfunctions or landline connection, wherever caused.
e. If the Client provides Live By Trade BV with information carriers, electronic files or software, etc., the Client guarantees that these materials are free of viruses and defects. Any damage caused by the use of these materials will be reimbursed by the Client.
f. Live By Trade BV is never liable for a damage-causing event if it is not held liable by the Client for the damage within thirty (30) days after the occurrence of the damage-causing event.
g. Live By Trade BV is not liable for damage if the Client has taken out insurance or could reasonably have taken out insurance against such damage. The client indemnifies Live By Trade against claims from insurers and others in this regard.
h. The Client indemnifies Live By Trade BV against all third-party claims related to or arising from the legal relationship existing between Live By Trade BV and the Client.
8. Force Majeure
a. Live By Trade BV is not obliged to fulfil any obligation if it is prevented from doing so as a result of a circumstance that is not due to its fault, and is not for its account under the law, a legal act or generally accepted views.
b. Force majeure is in any case understood to mean war, state of war, revolution, revolt, military or other takeover of power and looting in connection with these circumstances, epidemic, pandemic, strikes and other labour disputes elsewhere insofar as this makes Live By Trade BV more difficult in its services, squatting, seriously impeding weather conditions, traffic disturbances, power failure and more in general any cause that cannot be attributed to Live By Trade BV. The foregoing does not affect the obligation of Live By Trade BV to try to prevent and avoid force majeure situations as much as possible.
c. Live By Trade BV can suspend the obligations under the Agreement during the period that the force majeure continues. If this period lasts longer than two (2) months, each of the Parties is entitled to dissolve the Agreement, without any obligation to pay compensation to the other party.
d. Insofar as Live By Trade BV at the time of the occurrence of force majeure has already partially fulfilled its obligations under the Agreement or will be able to fulfil them, and the part fulfilled or to be performed has independent value, Live By Trade BV is entitled to invoice separately for the part to be fulfilled.
9. Dissolution and termination
a. Live By Trade BV is authorized to dissolve or suspend the Agreement in whole or in part without notice of default and without judicial intervention by means of written notification with immediate effect if, provisionally or otherwise:
i. The Client applies for a suspension of payments or is granted payment, or enters into an agreement or arrangement with its creditors or any other circumstance as a result of which the Client loses the free management of its assets;
ii. the Client has filed for bankruptcy or has been declared bankrupt;
iii. the Client’s company is liquidated or terminated;
iv. the Client does not fulfil its obligations under the Agreement and/or these terms and conditions, or does not fulfil them on time or properly.
b. Live By Trade BV will never be obliged to pay any compensation due to dissolution in accordance with this provision.
c. In principle, a notice period of two (2) months applies with regard to an Agreement pertaining to the delivery of a package of Services, which is concluded for a period of one (1) year. If and insofar as this is deviated from, the deviations must be expressly agreed in writing by authorized persons.
10. Intellectual property
a. Live By Trade BV reserves all intellectual property rights with regard to products arising from the mind which it uses or has used and/or develops in the context of the execution of the Agreement.
b. If Live By Trade BV is entitled to any right pursuant to paragraph 1, the Client may only dispose of it in the context of normal business operations. However, the Client may not transfer ownership, pledge or otherwise encumber with a limited right the rights of intellectual property.
11. Confidentiality
a. The Parties are not permitted to provide information that is or could be confidential in nature to third parties who are not involved in the Agreement or to use the information for a purpose other than that for which it was obtained. All Parties are bound by a duty of confidentiality with regard to such information. Information is considered confidential if this has been communicated by one of the Parties or if this results from the nature of the information.
b. The parties will not disclose any part of the information to third parties without the prior written consent of each other, except to the party’s accountants, the tax inspector and third parties who have the rightful task or obligation to know the affairs of the party and in that case only to the extent that such information is necessary for the performance of such duty or obligation.
c. The client will not make public the content of reports, advice or other expressions, whether written or otherwise, of Live By Trade BV that have not been drawn up or made with the intention of providing third parties with the information contained therein, unless Live By Trade BV has expressly given written permission to do so.
d. The obligations under this article shall remain in effect after termination of the Agreement.
12. Applicable law
a. Dutch law applies to all Agreements between Live By Trade BV and the Client to which these terms and conditions apply.
b. All disputes between Live By Trade BV and the Client that may arise and for which a solution cannot be reached by mutual agreement, will be submitted exclusively to the competent court in Amsterdam.
c. The parties will only appeal to the court after they have made every effort to settle a dispute in mutual consultation.