LiveDrop
Terms & Conditions

These LiveDrop General terms and conditions (the Terms and Conditions) apply to and form an integral part of: 

 

(a) all quotations, offers (hereinafter both referred to as Offer) of LiveDrop B.V., having its

offices at Pastoor Petersstraat 9, 5612 WB Eindhoven, The Netherlands or any of its Affiliates (LiveDrop) issued to any (potential) customer referred therein (the Customer); 

 

(b) all acceptances, signed purchase orders, acknowledgements and/or confirmations by LiveDrop (hereinafter jointly referred to as a Confirmation) of any order of customer, including - without limitation - orders of Customer resulting from any pricing- or other framework agreement between any Customer and LiveDrop (each being a Party and jointly being referred to as the Parties), unless explicitly agreed otherwise in writing by Parties; and 

 

(c) any agreement resulting from such Offer or Confirmation and any other agreement incorporating these Terms and Conditions by reference (jointly referred to as an Agreement), regarding the sale by LiveDrop and purchase by Customer of Software (as defined below). 

 

2. DEFINITIONS

For purposes of these Terms and Conditions the following terms shall have the meanings set forth below:

 

Software means the SDK, the Software (as a Service (SaaS)) and any other related Product offered by LiveDrop. 

 

Affiliates means, with respect to a party, any entity that controls, is controlled by or is under common control with such party. For purposes of this definition, “control” means: (i) direct or indirect ownership of more than fifty per cent (50%) of the shares of the entity entitled to vote in the election of directors; or (ii) in the case of an entity that is not a corporation, the right to direct the management and business of such entity. An entity shall be considered an Affiliate only for so long as such control exists.

 

Documentation; means the printed or electronic documentation that LiveDrop provides or makes available with the Software, which includes, but is not limited to, a user manual and/or Software specifications.

 

Force Majeure shall mean force majeure as set out in section 6:75 DCC, including any circumstances or occurrences beyond LiveDrop's reasonable control - whether or not foreseeable at the time of the Offer, Confirmation or Agreement – as a result of which LiveDrop cannot reasonably be required to execute its obligations. Such circumstances or occurrences include: war, civil war, insurrections, strikes, fires, floods, earthquakes, labour disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labour, materials or components.

 

Order Form; means the ordering document specifying the Software, pricing and subscription term.

 

3. SOFTWARE LICENSE

 

3.1 Software License. Prior to installing the Software, Customer, or its customers, as the case may be, shall be presented with a separate end-user license agreement. Such agreement shall contain the terms and conditions applicable to the use of the Software by Customer and its customers.

 

3.2 LiveDrop grants the Customer a non-exclusive non-transferable license to access and use the Software during the subscription term in accordance with the term of this Agreement. 

 

4. PRICE, SUBSCRIPTION AND PAYMENT TERMS

 

4.1 Price. Subject to Section 4.2, Customer shall pay LiveDrop the price for the Software as set forth in the Offer, Confirmation or Agreement. The subscription term shall be specified in the Order Form and will automatically renew for successive terms unless either party provides written notice of non-renewal at least 30 days prior the current term. Customer may not settle or deduct any sum due or which later becomes due to Customer under or in connection with any agreement from any amount payable to LiveDrop. 

 

4.2 Payment Terms. All amounts payable by Customer pursuant to Section 5.1 or otherwise under these Terms and Conditions shall be subject to prepayment. The Software and License Key will be shipped to Customer upon receipt of payment.

 

4.3 If LiveDrop agreed on payment after delivery of the Software, Customer shall pay the invoice submitted to it by LiveDrop, in full and in cleared funds, within 14 days of the invoice date to a bank account nominated in writing by LiveDrop. If Customer objects to an invoice received, Customer must inform LiveDrop of its objections in writing within eight days of the invoice date, failing which the correctness of the invoice is an established fact.

 

4.4 Without prejudice to any other right or remedy that it may have, if Customer fails to pay LiveDrop on the due date:

 

(a) Customer shall pay interest on the overdue amount equal to the applicable commercial statutory interest rate in the Netherlands as set out in section 6:119a DCC as amended from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount. Customer shall pay the interest together with the overdue amount; and 

 

(b) Customer shall pay all costs, both in and out of court including any costs charged by external incurred by LiveDrop in exercising its rights. The out-of-court costs are set at 15% of the amount due, subject to a minimum of €200.

 

4.5 All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

4.6 Taxes. All prices and payments are in Euros and net of any costs, taxes (excluding taxes on LiveDrop’s net income), duties, import and export fees, which are imposed by any governmental entity or authority (the Taxes). All Taxes on the amounts due hereunder, or which otherwise arise out of or are imposed on any Agreement, shall be borne by Customer. Customer shall not withhold any such Taxes from payments. If any such governmental entity or authority, however, imposes Taxes on any amounts paid by Customer to LiveDrop hereunder and requires Customer to withhold such Taxes from such payments, Customer may deduct such Taxes from such payments, provided however that the amounts payable to LiveDrop shall be grossed up with such additional amounts that after such withholding LiveDrop shall receive the same net amount as if no such withholding would have been required.

6. WARRANTIES AND DISCLAIMERS

6.1 Warranties: 

(a) Performance: The Software will perform substantially in accordance with the accompanying documentation under normal use and circumstances. 

(b) Professional Services: LiveDrop will provide the Software in a professional and workmanlike manner, using reasonable care and skill. 

(c) Non-Infringement: To the best of Livedrop’s knowledge, the Software does not infringe upon any third-party intellectual property rights. 

6.2 Exclusions: The warranties provided in section 6.1 do not apply if:

(a) Misuse: The Software is used in a manner not authorized by this Agreement or the accompanying documentation. 

(b) Modification: Any modification, alteration, or addition has been made to the Software by the Customer or any third party not authorized by LiveDrop. 

(c) External Factors: Issues arise due to external factors such as hardware malfunctions, network problems, or other software not provided by LiveDrop. 

(d) Non-Compliance: The Customer fails to comply with any applicable instructions or guidelines issued by Livedrop.

6.3 Warranty Claim Process: To make a claim under the warranties provided in section 6.1, the Customer must: 

(a) Notification: Notify LiveDrop in writing of the issue, providing sufficient detail to allow LiveDrop to identify and reproduce the issue. 

(b) Assistance: Provide all necessary assistance to LiveDrop in diagnosing and resolving the issue, including access to relevant systems, data, and personnel. 

(c) Timeliness: Submit the claim within 14 (fourteen) days of discovering the issue.

7.4 Remedies: If the Service fails to comply with the warranties in section 7.1, the Provider will, at its option: 

(a) Repair or Replace: Repair or replace the non-conforming Software to bring it into compliance with the warranty.

(b) Service Credits: Provide a service credit to the Customer for the non-compliant portion of the Software.

(c) Termination and Refund: Terminate the affected Order Form and provide a pro-rata refund of any prepaid fees for the unused portion of the Software term.

7.5 Disclaimer of Other Warranties: Except as expressly provided in this Agreement, the Software is provided "as is" and LiveDrop disclaims all other warranties, express or implied, including any warranties of merchantability, fitness for a particular purpose, and non-infringement. LiveDrop does not warrant that the Service will be uninterrupted, error-free, or completely secure.

 

7. LIMITATION OF LIABILITY

 

7.1 In no event shall LiveDrop have any liability for any indirect damages (such as lost profits, lost savings, loss of reputation, however caused, whether for breach of contract, tort (including

negligence) or otherwise), even if LiveDrop has been advised of the possibility of such damages.

 

7.2 LiveDrop’s aggregate and cumulative liability towards Customer arising out of or related to any Agreement shall not exceed the lesser of (a) the amounts actually received by LiveDrop pursuant to the applicable Agreement in the twelve (12) months immediately preceding the event, or series of events, as the case may be, giving rise to any liability of LiveDrop and (b) an amount of euro 15,000 (in full: fifteen thousand euros).

 

7.3 Nothing in these Terms and Conditions shall exclude liability to the extent that such liability may not be excluded or limited by law (including intent and gross negligence). 

 

7.4 In no event shall LiveDrop have any liability in the type of data or content that is transferred. 

 

8. Idemnification

 

8.1 Customer Indemnification; The Customer agrees to indemnify, defend and hold harmless LiveDrop from and against any claims, liabilities, damages and expenses arising out or related to the Customer’s use of the Software in violation of this Agreement

 

9. TERM AND TERMINATION

 

9.1 Termination for Cause. In the event of a material breach by either Party of any agreement to which these Terms and Conditions apply and which is capable for cure, the non-breaching Party shall be entitled to give the breaching Party written notice of such breach. If the breaching Party has not cured such breach within thirty (30) days after receipt of such notice, or if the material breach is not capable for cure, the non-breaching Party shall be entitled, in addition to any other rights it may have under these Terms and Conditions, to terminate the applicable Agreement by giving notice thereof to the other Party which shall take effect immediately.

 

9.2 Survival. The provisions of Sections 2, 4 (with respect to amounts accrued prior to expiration or termination), 6, 7, and 9 shall survive the termination of any agreement for any reason.

 

10. CONFIDENTIALITY

 

10.1 Both Parties shall procure that all Confidential Information disclosed by one to the other in accordance with these Terms and Conditions shall be kept secret and confidential and shall not be used for any purposes other than those required or permitted by these Terms and Conditions and shall not be disclosed to any third party except insofar as this may be required or permitted under these Terms and Conditions.

 

10.2 The obligations of confidentiality shall not apply to any Confidential Information which:

(a) is or becomes publicly known (other than by an act or omission of the receiving Party);

(b) was in the other Party's lawful possession prior to the disclosure;

(c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

(d) is independently developed by the receiving Party, which independent development can be shown by written evidence; and/or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body, provided that the Party subject to such requirement to disclose gives the other prompt written notice of the requirement, to the extent it is permitted to do so by law.

 

10.3 A Party may disclose the other Party's Confidential Information to its personnel who need to know such Confidential Information for the purpose of performing its, provided that it informs such personnel of the confidential nature of the Confidential Information prior to disclosure and at all times and it remains responsible for such personnel's compliance with the confidentiality obligations set out in this clause.

 

10.4 Nothing in these Terms and Conditions shall prevent LiveDrop from:

(a) disclosing Customer's Confidential Information to any consultant, sub-contractor, group company, other supplier or other person or service provider engaged by LiveDrop; and

(b) making any public or private announcement or communication concerning the Agreement or refer to or use any business name of the Customer in any promotional communications.

 

11. MISCELLANEOUS

11.1 No other pre-printed or standard conditions. The Parties acknowledge that for the convenience of executing transactions pursuant hereto, they may use pre-printed forms of sale, purchase, confirmations and the like, each or all containing or referring to pre-printed and/or general terms and conditions thereon. The terms and conditions thereon are specifically rejected and the forms are acknowledged to be used, if at all, for the sake of convenience only. Only these Terms and Conditions shall apply to the purchase by Customer and sale by LiveDrop of Software by LiveDrop to Customer. 

 

11.2 Force Majeure. LiveDrop shall have no liability in event of Force Majeure. If an event of Force Majeure extends for more than three (3) consecutive months (or if any failure to perform or any delay in the because of an event of Force Majeure is reasonably expected by LiveDrop to extend for a period of three (3) consecutive months), LiveDrop shall be entitled to cancel all or any part of the Agreement without any liability of LiveDrop towards Customer. 

 

11.3 Assignment. Customer may not assign or otherwise transfer any Agreement or any rights or obligations thereunder as set out in section 3:83 Dutch Civil Code without the prior written consent of LiveDrop. LiveDrop may assign and otherwise transfer any Agreement as a whole, and all of its rights and obligations hereunder, without the consent of Customer to any third Party. Subject to the foregoing, any Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Any assignment in violation of this section 10.3 shall be null and void.

 

11.4 Governing Law and Jurisdiction. These Terms and Conditions and any Offer, Confirmation and Agreement shall be governed by and construed in accordance with the laws of the Netherlands, without regard to provisions concerning conflicts of law. Customer submits and consents to the jurisdiction of the courts of Amsterdam, the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions or any Agreement. The parties hereby agree that LiveDrop, at LiveDrop's sole discretion, may also elect to bring legal action regarding any dispute arising from or in connection with any Agreement or these Terms and Conditions before any court in any country (or political subdivision thereof) which may have jurisdiction and Customer herewith irrevocably and unconditionally submits to the exclusive jurisdiction of the courts chosen by LiveDrop.

 

11.5 Export Laws. The Software and Documentation provided under any Agreement or pursuant to these Terms and Conditions are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply fully with all laws and regulations of the United States and other countries (Export Laws) and shall assure that the Software and Documentation are not: (i) exported, directly or indirectly, in violation of Export Laws, either to any countries that are subject to U.S export restrictions or to any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government; or (ii) intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

 

11.6 If the delivery of the Software and Documentation is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, LiveDrop may suspend its obligations and Customer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and LiveDrop may even terminate the Agreement, without incurring any liability towards Customer. Furthermore, if an end-user statement is required, LiveDrop shall inform Customer immediately thereof and Customer shall provide LiveDrop with such document upon LiveDrop’s first written request; if an import license is required, Customer shall inform LiveDrop immediately thereof and Customer shall provide LiveDrop with such document as soon as it is available.

 

11.7 Severability. The invalidity or unenforceability of any particular provision of these Terms and Conditions or Agreement pursuant hereto shall not affect the other provisions hereof and these Terms and Conditions and any Agreement shall continue in full force and effect without said provision and will be interpreted to reflect the original intent of the Parties.

 

11.8 Relationship. Nothing in the Contract, these Terms and Conditions or any Purchase Order is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another party, nor authorize any Party to make or enter into any commitments for or on behalf of any other party.

 

11.9 Variation. Amendment to (any document referring to) these Terms and Conditions shall not be binding on the Parties unless set out in writing, expressed to amend such document and signed by an authorised representative of each of the Parties.