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Terms and conditions for Tradecloud

Version 2.2

Tradecloud B.V. (registered with trade register number 58481567) offers “Tradecloud” services over the internet in the form of Software-as-a-Service (SaaS). This means Tradecloud B.V. provides access via the internet to the software developed by it. These are the terms and conditions applicable to the use of all services (the “Services”) offered by Tradecloud B.V. (or one of its (future) subsidiaries), including but not limited to the Tradecloud Platform. By using the Services, you agree that these terms and conditions apply to (your use of) the Services.

If you have any questions about these terms and conditions or the Tradecloud software, please contact us by filling out the contact form on our website. Deviations from these terms and conditions are only valid if accepted in writing by Tradecloud B.V.

Article 1. General

These terms and conditions apply to every offer and agreement concluded by Tradecloud B.V. or one of its subsidiaries.
The following definitions and rules of interpretation apply to these terms and conditions:

“Additional Services”: all (SaaS) services offered by Tradecloud B.V. (or one of its (future) subsidiaries), other than the Platform, such as support, consultancy or implementation work;

“Customer”: any natural or legal person who has completed the Registration, as well as a natural or legal person who entered into the Tradecloud Agreement with Supplier;

“Days”: Monday to Friday, excluding public holidays in Netherlands

“Defect”: any shortcomings of the Platform which prevent the operation of the Platform as described in the Documentation. The lack of functionality in a new version of the Platform that was present in a previous version is not considered to be a Defect;

“Documentation”: the written and / or electronic documentation associated with the Platform;

“Employee”: an employee of the Customer, or a natural person authorized to perform work on behalf of and / or under the responsibility of Customer;

“Log-in data”: user code(s) intended for the Customer only, which give access to the Services, including the Platform, and the Tradecloud Portal;

“Log-in procedure”: the procedure prescribed by Supplier and that Customer must follow in order to gain access to the Services, including the Platform, and the Tradecloud Portal, using a secure encrypted connection;

“Platform”: any access to the application via Portal, App, API or another technical interface;

“Registration”: the completion of a form that captures data from a prospective Customer via the Website;

“Supplier”: Tradecloud B.V. or one of its subsidiaries acting as supplier;

“System Requirements”: the minimum requirements of the hardware and software for the proper use of the Tradecloud Services by the Customer;

“Third Party Authorized User”: a user, authorized by Customer to access the Platform related to Customer, not being an Employee, but for instance a customer or supplier of Customer;

“Tradecloud Agreement”: the agreement between the Supplier and Customer related to the Tradecloud Services;

“Tradecloud Portal”: the website or Supplier Application Program Interface, which users can access through log-in details;

“Tradecloud Service(s)”: the set of services to be provided by the Supplier, as further described in the Tradecloud Agreement;

“Tradecloud Terms”: these terms Tradecloud;

“User”: Customer and/or an Employee;

“Website” means the Supplier’s website;

Tradecloud B.V. may change or add to these terms and conditions from time to time.
Tradecloud B.V. shall announce changes or additions to the terms and conditions through the Services at least two months before their taking effect. Use of the Services after the date the changes or addition takes effect shall constitute acceptance by Customer of the changed or added-to terms and conditions.
All offers and quotations relating to the Services are revocable and subject to contract.
Customer can purchase Services directly on the Website. Customer may also, after he has gained access to the Platform, purchase Services through the Platform. The Tradecloud Agreement is concluded once Supplier sends confirmation (in digital form) of the purchase to Customer.
Supplier is free to refuse orders or not to confirm orders from Customer without grounds, in which case no Tradecloud Agreement is concluded.

Article 2. Use of the Tradecloud Service

Supplier hereby grants Customer the non-exclusive right to use the Platform for the duration of the Tradecloud Agreement for the purpose of the business operations of Customer. The license also includes the right to use the Documentation associated with the Services. With this agreement, Customer gets the right to use the Tradecloud Service(s). All intellectual property (existing or newly developed) on the Tradecloud Software belongs to Tradecloud B.V. Any new functionality of the Services will always be developed as a standard functionality for all users of that Tradecloud Service. Tradecloud is a standard solution and the software is provided ‘as is’ as shown in the latest available version. The Tradecloud software is hosted and managed by Tradecloud B.V. in a secure infrastructure.
The right to use the Tradecloud Services commences at the time the Tradecloud Agreement is concluded.
Customer shall only use the Services in accordance with these terms and conditions.
Supplier shall be entitled to make innovations to the Services at its discretion. Supplier shall notify Customer timely of the processing of updates and/or upgrades, to the extent that they are relevant for the use of the Services by Customer, all this at the discretion of Supplier.
Tradecloud Services can allow you to process personal data. Tradecloud B.V. acts as a data processor (in Dutch: verwerker) as defined in the General Data Protection Regulation (in dutch: “Algemene Verordening Gegevensbescherming” or “AVG”); you are the data controller (in Dutch: verantwoordelijke). Tradecloud will not use any personal data that the controller wants to process for its own purposes, unless specifically agreed upon with the controller. You indemnify and hold Tradecloud B.V. harmless against all claims by third parties in connection with this Act.
Customer shall not allow the Services to be used by or for any other (legal) person than Customer, its Employees and Third Party Authorized Users.
The use of the Services by more than the number of Users specified in the Tradecloud Agreement with Customer is expressly forbidden.
Customer may not transfer its rights or obligations arising from the Tradecloud Agreement or these terms and conditions to third parties.
Customer shall not cause inconvenience or damage in any way to Supplier or customers of Supplier when using the Services, all this at the discretion of the Supplier. Customer shall not perform any operations that are or are likely to be damaging to the systems of Supplier or customers of Supplier.
Customer may not use the Services contrary to law or these terms and conditions.
Customer is solely responsible for the content and accuracy of all information it entered and stored with Supplier via the Services.
Customer guarantees to use the Services in such a way that the amount of data entered and information stored via the Tradecloud Services and the realized volume of data transport by Customer, does not deviate significantly from the average use of the Services by other customers as indicated by Supplier. If the use of Customer deviates significantly, all in the opinion of Supplier, from the average use, Supplier shall contact Customer in order to agree upon specific conditions for the additional use of the Tradecloud Services by Customer.

Article 3. Fee, prices and payment

Customer owes Supplier a monthly subscription fee for the Tradecloud Services. Invoicing of this fee takes place annually, unless expressly agreed otherwise.
The subscription fee referred to in Article 1 is payable regardless of whether or not Customer uses the Tradecloud Services.
Supplier can perform consultancy work for Customer, if and when agreed upon by Customer and Supplier. Consultancy work is not included in the subscription fee. Supplier will send Customer separate invoices for any consultancy work. These invoices will include a specification of the work and the (then) current prices and costs charged by Supplier.
All prices charged by Supplier are excluding VAT and possible other government levies to be borne by Customer.
Supplier is entitled to adjust the compensation for the Tradecloud Services annually. Any price changes will be communicated to Customer in a timely fashion via the Tradecloud Portal or otherwise. Customer agrees to any price changes if these do not exceed the CBS Consumer Price Index (series: all households in 2005 = 100). If price changes do exceed this price index, Customer may terminate the Tradecloud Agreement by giving written notice or via the Tradecloud Portal on the first day of the month following the announcement of these price changes.
Use of the Tradecloud Services after the date the price changes take effect shall constitute acceptance by Customer of the price changes.
Payment of compensation shall be made by invoice.
If Supplier has blocked the access of customer to the Tradecloud Services in accordance with the procedure of Article 4, the total amount due by Customer to Supplier will become immediately due and payable.
Upon request of Customer, Supplier can reactivate the access of Customer to the TradeCloud Services (after blocking access in accordance with Article 4), within two months after payment by Customer of the outstanding fees plus an additional reactivation fee.
If Customer fails to (timely) fulfil his payment obligations under this Article 3, Customer is in default without further notice being required. When in default, Customer owes Supplier an interest of 1,5% per month or part of a month that Customer fails to pay the outstanding amounts.
All costs incurred by Supplier, both in and out of court, including legal fees, as a result of the failure by Customer to perform his payment obligations shall be borne by Customer. Extrajudicial collection costs incurred by Supplier are set at at least 15% of the principal amount of the claim.

Article 4. Obligations Supplier

Supplier uses its best efforts to have the Tradecloud Services available at all times and maximize access to the Tradecloud Services, but makes no guarantees about uninterrupted availability.
Supplier guarantees that a backup is made regularly (at least once a day) of the data that Customer has entered via the Tradecloud Services. This backup is not provided to Customer, but made only for internal security considerations by Supplier (for example: in case of calamities, such as a large power outage or a fire).
Supplier guarantees that the data Customer entered via the Tradecloud Services is protected as well as reasonably possible against loss, theft, unauthorized access and modification by non-Users.
Supplier actively maintains the Tradecloud software. In case maintenance is reasonably expected to negatively impact availability, Supplier carries out such maintenance at times when use of the service is relatively low. Maintenance is announced in advance whenever possible. Emergency maintenance can take place at any time and without prior announcement.
Supplier may adapt the Tradecloud software from time to time.

Article 5. Obligations and cooperation Customer

Customer is obliged to follow the log-in procedure. Supplier is entitled to adjust the log-in procedure at its discretion, of which change Supplier shall notify Customer in time.
Customer must carefully deal with the Log-in data. Customer is responsible for the Log-in data. The Log-in data are not transferable and may not be used outside the organization of Customer. Customer and the Users shall observe strict confidentiality in respect of the Log-in data. Supplier may assume that all actions undertaken from your account after logging in with your username and password is authorized and supervised by Customer. Customer is liable for any (unauthorized) use of its Log-in data, unless and until Customer has notified Supplier that a non-User has Log-in data of Customer.
Customer guarantees to notify Supplier, in writing or via the Tradecloud Services, immediately of a change in its address and/or payment information.
If the Customer does not fulfil its obligations under the Tradecloud Agreement or these terms and conditions (including, but not limited to, those referred to in this Article 5), Supplier is entitled to block the access of Customer to the Tradecloud Services without prior notice to Customer.
Customer is responsible for the operation of its hardware and software configuration, peripheral equipment and internet connection required for use of the Tradecloud Services.
Customer guarantees that the equipment and software used by Customer to run the Tradecloud Services meets the System Requirements. Customer is responsible for taking the necessary steps to protect equipment, software, telecommunications and internet connections against viruses, computer crime and unlawful use by third parties.
Customer shall provide Supplier with all information and assistance necessary to enable Supplier to maintain the Tradecloud Services.

Article 6. Tradecloud Portal

Supplier provides Customer access to the Tradecloud Portal by providing Log-in data.
Via the Tradecloud Portal, Customer can obtain information (Documentation) and support regarding the Tradecloud Services. The Tradecloud Portal offers Users access to exclusive information, related to Customer, such as addresses, contracts and communication history. Via the Tradecloud Portal both general information and direct contact communication applications are available, to support the use of Supplier’s products.
Supplier shall at all times have the right to limit or block the access of Customer to the Tradecloud Portal in case of (suspected) abuse or misuse of the Tradecloud Services.
Customer guarantees that the Users will handle access to the Tradecloud Portal responsibly, including any information obtained therefrom. Customer is irrevocably responsible for any information that the Users add to the Tradecloud Portal.
The information provided by or on behalf of Supplier via the Tradecloud Portal is given without prejudice to any rights of Supplier, and, unless expressly stated otherwise, Customer or third parties cannot derive any rights from said information.

Article 7. Information

The data entered by Customer via the Tradecloud Service is stored in a database managed by a third party engaged by Supplier.
Customer shall at all times own the data entered by Customer via the Tradecloud Service.
Up to 28 days after the end of the Trade Cloud Agreement, Customer may request Supplier to send a copy of the data entered by and transmitted to Customer via the Tradecloud Service. Supplier shall charge Customer a fee for this copy. This option is not available to Customers terminating a trial subscription with Supplier.
Supplier is not obliged to acquiesce to the request of Customer, as referred to in Article 7.3, in case Customer did not fully fulfil its payment obligations under the Tradecloud Agreement and these terms and conditions.
Customer is obliged to comply with all applicable legal retention periods concerning the data entered via the Tradecloud Service, and the administration kept in it. Supplier does not have any statutory or contractual obligation to retain any data or records of Customer.
After 28 days after termination of the Tradecloud Agreement, the data entered and stored by Customer via the Tradecloud Service may be deleted permanently by Supplier, without giving prior notice to Customer.

Article 8. Support

During the term of the Tradecloud Agreement Customer is entitled to second line support from Supplier. Support may only be requested by one User designated by Customer, most likely a functional or technical manager. Other employees that use the Tradecloud Platform or Third Party Authorized Users will be supported by this designated User.
Support includes the right to consult Documentation. In addition, questions can be submitted 24 hours a day through the Tradecloud Portal or by E-mail: support@Tradecloud.nl After Customer has consulted the Documentation and submitted the question via the Tradecloud Portal, Customer is entitled to telephone support during business hours (on Days from 09:00 to 17:30). Support for the Tradecloud Services only relates to proper use of the Tradecloud Services by Customer.
Support does not include:

a) services regarding system configurations, hardware and networks;
b) fundamental or systematic work;
c) on-site support;
d) expanding the functionality of the Tradecloud Service at the request of Customer;
e) converting files;
f) services to external databases of producers other than Supplier;
g) installation, configuration, training or other services not expressly described in the Tradecloud Agreement;
h) support for (operating) software from manufacturers other than Supplier, which also comprises the third-party software that can be launched from the Tradecloud Service;
i) file repairs, in case the cause of the damage cannot be attributed to the Tradecloud Service;
j) providing newly available products;
k) support for the internet;
l) support in an environment that is not supported according to the System Requirements.

In the context of providing support, Supplier is entitled to look into the data entered by or stored for Customer, if necessary to provide the requested support.
Supplier can perform any of the services as listed in Article 8.3 under a) through l), for Customer after a written request or purchase order. Supplier will charge an additional fee to Customer. Supplier will send a separate invoice with specification in accordance with the (then) current prices and costs charged by Supplier.

Article 9. Benchmarking

Supplier regularly aggregates information related to the use of the Tradecloud Service, and the Services in general, for benchmarking purposes and improvement of Services and support.
The information thus aggregated by Supplier can never be traced back to individual customers, other than Customer’s own information in direct reports to Customer only.
Supplier may publish the information, on its website or otherwise, as segmented by industry, geography and other metrics, to provide relevant insights.
Supplier can also use the information to keep Customer informed about the Services, products and/or activities of Supplier that might be of interest to Customer.

Article 10. Intellectual property and privacy policy

The Tradecloud Service, the accompanying software as well as all information and images on the website, all copyrights, patent rights, trademark rights, other intellectual and industrial property rights and any similar rights to protect information related to the Services and Documentation are the exclusive intellectual property of Tradecloud B.V. or its licensor(s). None of these items may be copied or used without prior written permission of Tradecloud B.V., except and to the extent permitted by mandatory law. None of the provisions of the Tradecloud Agreement or these terms and conditions can be construed to signify a complete or partial transfer of these rights to Customer.
Customer may not change, remove or render unrecognizable any indication of the intellectual property rights of Supplier on the Tradecloud Services or the Documentation. Customer may not use or register any trademark, design or domain name of Supplier or a similar name, sign or logo in any country, anywhere in the world.
Supplier indemnifies Customer for any damages and all costs and expenses of Customer pursuant to an irrevocable judgment, following legal proceedings instigated by a third party, regarding an (alleged) infringement of valid patents, copyrights, trademarks or other rights of third parties through the use by Customer of the Tradecloud Service or any part thereof, in accordance with the Tradecloud Agreement, provided Customer i) shall notify Supplier immediately in writing of such action when it is announced to him, ii) authorizes Supplier at its discretion to defend itself against the relevant claims or conclude a settlement with the third party, and iii) upon first request, supplies Supplier with all relevant information and provides any other assistance required by Supplier.
If a court ban on the use by Customer of the Tradecloud Service for an unlawful act referred to in Article 10.3 or, in the opinion of Supplier, it is possible that the Tradecloud Service will be the subject of a successful claim of infringement, then Supplier is at its sole discretion and for its own account: i) obtain the right for Customer to continue using the Web, ii) replace or amend the Tradecloud Service in such a way that there no longer is an infringement, provided the functionality remains unchanged materially, or iii) if the previous two options are not feasible from a practical point of view, to end the infringement by the Tradecloud Service by terminating the rights granted to Customer under the Tradecloud Agreement and/or these terms and conditions, to end the offending use of (part of the) Tradecloud Service.
Subject to Article 10.3, Supplier shall not be liable to Customer to the extent a claim is related to i) use of the Tradecloud Service in conjunction with data that was not provided by Supplier, equipment or software, where the Tradecloud Service itself would not infringe or otherwise would be subject to the claim, ii) improper use of the Tradecloud Service or use in a way not specified in the Documentation, iii) an adaptation of the Tradecloud Service implemented by another (legal) person or supplier than Supplier, or iv) the following by Supplier of the explicit instructions of Customer. Customer indemnifies Supplier for any damages and all costs arising from claims as defined in this Article 10, under i) through iv).
Supplier is entitled to take (and uphold) the necessary (technical) measures to protect the (intellectual property rights in the) Tradecloud Service and the Documentation and in view of the agreed restrictions on the use of the Tradecloud Service. Customer may not bypass or remove such (technical) measures of its own accord.
Supplier may carry out an inspection (or have an inspection carried out) in order to ascertain whether Customer observes and complies with the terms of the Tradecloud Agreement and these terms and conditions, provided that the inspection shall be conducted during normal business hours and in such a way that the business of Customer is not unreasonably obstructed. Such an inspection is executed by an independent expert selected and hired by Supplier. Customer must provide the expert with all information, support and access to its premises and systems as is reasonably necessary to enable the expert to do his job properly. The independent expert will submit a summarizing memo on his findings concerning the inspection, but does not provide Supplier with any information other than the information obtained by the expert in doing the inspection. The cost of the inspection shall be borne by Supplier, unless the audit shows that Customer fails to comply with or violates the terms of the Tradecloud Agreement or these terms and conditions, in which case the costs of the inspection shall be borne by Customer. Supplier may perform (or have performed) an inspection only if Supplier indicates to Customer on what grounds such an inspection is necessary. Customer shall, on the basis of these cases decide whether or not to grant access.
Information Customer stores or processes using the service is and remains property of Customer (or the property of Customer’s suppliers or licensors). Supplier receives a limited license to use this information for the Tradecloud Service, including for future aspects thereof. Customer can cancel this license by removing the information in question and terminating the Tradecloud Agreement.
If Customer sends information to Supplier, for example a bug report or suggestion for improvement, Customer grants Supplier a perpetual and unlimited license to use this information for the Tradecloud Service. This does not apply to information Customer expressly marks as confidential.
Supplier uses and processes any personal data in accordance with its privacy policy, which can be found on the website or via the Tradecloud Portal.

Article 11. Limitation of liability

Except in case of specific legal provisions excluding a limitation of the liability of Supplier for damage caused by intent or gross negligence, Supplier is only liable for damages as described in this Article 11.
Damages may only be claimed by Customer if reported in writing to Supplier at most two months after discovery by Customer.
Supplier is in no event liable for indirect damages, consequential damages, lost profits, missed savings or damages through business interruption, damage due to claims of customers of Customer, mutilation or loss of data, damage relating to the use of matters, materials or software of third parties as instructed by Customer to Supplier, damage relating to engagement of suppliers as instructed by Customer to Supplier, regardless of the nature of the act (breach of contract, tort or otherwise), and even if Supplier was informed of the probability of the occurrence of the damage.
Supplier is not liable for any damage resulting from:

the temporary unavailability of (part of) the Tradecloud Services or the Tradecloud Portal;
the (not-)functioning of any equipment, hardware or software or internet connection of Customer, Users, Third Party Authorized Users or third parties;
the incorrect, incomplete or untimely transfer or receipt of any data that is entered into the Tradecloud Service and stored with Supplier;
- If the other limitations of liability of Supplier did not work, the liability of Supplier shall in any case be limited to the amount equal to 50% of the fee and costs charged by Supplier to Customer in the 12 months before the month in which the damage occurred.
- Customer acknowledges and agrees that the fee for the Tradecloud Services has been established in accordance with the limitation of liability of Supplier of this Article 11.
- Customer acknowledges and agrees that the Tradecloud Service and/or the Tradecloud Portal can never be perfect or 100% free of imperfections and that not all Defects will (may) be put right.
- Customer indemnifies Supplier from third party claims arising out of or related to the Tradecloud Agreement or these terms and conditions, unless Customer might have made such valid claims against Supplier in accordance with the provisions of this Article 11 if the Customer suffered the damage itself.
- Supplier’s liability for attributable failure to perform the contract with Customer will in any case only arise if the Customer immediately and properly gives Supplier notice of default, in which notice a reasonable period for remedying the failure must be given, and Supplier – after that period – still fails to perform its obligations. The written notice must contain the most complete and detailed description of the failure so that Supplier is able to respond adequately.
- Any right to compensation shall lapse in any case if Customer has failed to take measures to i) limit the injury immediately after it has occurred, ii) prevent (other or further) damage before it occurs, or iii) inform Supplier as soon as reasonably possible about the damage and provide Supplier with all relevant information.
- Any claim for damages against Supplier shall be extinguished by the mere lapse of 24 months after the claim arises.
- In case of force majeure Supplier is never required to compensate damages suffered by Customer. Force majeure includes among others disruptions or unavailability of the internet, telecommunication infrastructure, power interruptions, riots, traffic jams, strikes, company disruptions, interruptions in supply, fires and floods.

Article 12. Term and termination

This agreement enters into force after signing of the agreement and then remains in force for a year.
After this period the agreement is silently renewed with successive terms of the same period, unless either party terminates the agreement in writing or via the Tradecloud Service or the Tradecloud Portal by the end of the (then) current term indicated in the previous clause with a notice period of one month.
Supplier is entitled to terminate the Tradecloud Agreement with immediate effect if Customer:
1. after proper written notice of default, does not fulfil its obligations under the Tradecloud Agreement; or
2. does not meet its payment obligations; or
3. ceases its business operation.
The Tradecloud Agreement terminates by operation of law at the time:
1. Customer goes bankrupt; or
2. Customer is liquidated; or
3. a moratorium of payment is granted to Customer.
In case of termination of the Tradecloud Agreement, the total amount due by Customer to Supplier will become immediately due and payable.
Upon termination of the Tradecloud Agreement, Customer shall discontinue its use of the Tradecloud Service. Supplier will terminate the access of Customer to the Tradecloud Service, the Tradecloud Portal and the data stored by Customer.
Supplier shall not refund any fees to Customer upon termination, regardless of the ground for termination.

Article 13. Miscellaneous provisions

For any clause in these terms and conditions that demand that a statement must be done “in writing” to be legally valid, a statement by e-mail or communication through the Tradecloud Service or the Tradecloud Portal shall be sufficient, provided the authenticity of the sender can be established with sufficient certainty and the integrity of the statement has not been compromised.
The version of any communication of information as recorded by Supplier shall be deemed to be authentic, unless Customer supplies proof to the contrary.
Electronic communications shall be deemed to have been received on the forwarding date, unless the recipient supplies proof of the contrary. If the communication has not been received as a result of delivery and/or accessibility problems with the email box of Customer, this is at Customer’s risk – even if the e-mail box of Customer has been placed with a third party.
In case any part of these terms and conditions are declared legally invalid, this shall not affect the validity of the whole of the agreement. The parties shall in such an event agree on one or more replacement provisions that approximate the original intent of the invalid provision(s) within the limits of the law.
Tradecloud B.V. is entitled to transfer its rights and obligations under this agreement to a subsidiary or a third party as part of an acquisition of Tradecloud B.V. or the associated business activities.
The Tradecloud Agreement and these terms and conditions shall be exclusively governed by Dutch law.
Except to the extent determined otherwise by mandatory applicable law, all disputes, controversies or claims arising out of or in connection with these terms and conditions or the Tradecloud Agreement shall be brought before the competent court of The Hague, the Netherlands.